Churchill had indeed denied the possibility of getting along with Waters, Churchill's continued effectiveness as a nurse under Waters' supervision could be reasonably expected to be diminished. Despite this, O'Connor agreed with Churchill and the Seventh Circuit that Mihm had erred in granting summary judgement against the nurse. "[She] has produced enough evidence to create a material issue of disputed fact about petitioners' actual motivation." It was possible that a trier of fact could find, in certain other actions by the hospital management, evidence that her non-disruptive, and therefore protected, criticisms of the implementation of the cross-training policy. That conclusion foreclosed the need to decide the qualified immunity question that had been discussed so heavily at oral argument. The Seventh Circuit's decision was vacated and the case remanded to district court to decide what action of Churchill's had motivated the firing. Souter concurrence David Souter, one of the four justices in the plurality, added his own concurrence. He wished "to emphasize that, in order to avoid liability, the public employer must not only reasonably investigate the third-party report, but must also actually believe it." Without that criterion, he argued, the government "can assert no legitimate interest strong enough to justify chilling protected expression." That left it open for Churchill to argue on remand that the putatively disruptive speech issue was merely a pretext for an unjustified, retaliatory firing over her criticisms of the cross-training implementation. He also clarified that the plurality's holding was the one lower courts should look to in future cases, per the standard for divided majority opinions announced in the 1977 obscenity case Marks v. United States. Seven justices agreed that public employers who acted on a reasonable belief of the content of employee speech had met their constitutional burden, and the plurality and dissent both supported a view that public employers who did not had violated the First Amendment. Therefore, the plurality was in fact a majority with its components joined by different justices. Scalia concurrence "This recognition", Scalia began, "of a broad new First Amendment procedural right is in my view unprecedented, superfluous to the decision in the present case, unnecessary for protection of public-employee speech on matters of public concern, and unpredictable in its application and consequences." He agreed that sometimes procedures were necessary to protect First Amendment rights. Most of the cases the plurality had cited were from defamation law, which was primarily