Earlier this month, the Sixth Circuit Court of Appeals
reversed a trial verdict of $25K which found that a Trump-supporting employee was
unlawfully retaliated against in violation of the First Amendment when she had
been fired for using racist slang a single time on a Facebook post on election
night 2016 even though she had deleted the entire post the next day.
Bennett v.
Metro. Gov’t of Nashville, No. 19-5818
(Oct. 6, 2020). The Court found that the
plaintiff’s use of the racist term in responding to the exact same language
posted by a stranger was not constitutionally protected and justified her
termination. While her comment did reflect on a matter of public concern, it was not entitled to the highest level of protection as other comments might have
been and was outweighed by the disruption created by her comment within her
workplace and in the public’s trust of her department. It was particularly problematic that her
Facebook posts were public, that she identified her employer and department, that
she failed to disclaim that her personal opinions were her own and not that of her
employer, that she had direct contact with the public in her job, that she
failed to consistently express remorse or accountability, and that many of her co-workers
were deeply offended and upset by her use of the word. The Court also rejected the plaintiff’s defense
asserting that the City had caved to a single heckler’s veto. While the decision was unanimous and there was
a majority court opinion, each judge wrote a separate opinion explaining the
outcome.
According to the Court’s opinion, the plaintiff employee
stayed up until 3 a.m. on election night and posted an image of the electoral
map when Trump had been declared the winner.
A stranger quickly posted a comment on her public page indicating that
Trump had been elected by “rednecks” while “niggaz and latinos states vot[ed]
for hillary.” She responded using his
same language, ““Thank god we have more America loving rednecks. . . . Even niggaz and latinos voted for trump
too!” Several friends notified her the
next morning that they were offended by her language and she deleted the entire
post that afternoon. In the meantime,
the City’s HR Department, the union and the Mayor’s office received a few
complaints about her Facebook comments. One
person (allegedly a disgruntled former employee) who had viewed her post had then made screen shots of it and may have been sharing
it on his Facebook page while accusing the City of being racist. The
City became especially concerned because the plaintiff had identified herself
as both an employee of the City and its police department. However, by the time they telephoned her to
request that she remove the post, she had already done so.
When she met with the City before her shift the following
morning, she initially showed no remorse or understanding of how inappropriate
her comment had been. She felt that she
had simply made a sarcastic response to the initial comment and that objectors
were not really all that offended. When
she realized that this was becoming a disciplinary issue, she offered to
apologize to the offended employees, but objected to apologizing to the entire
staff at roll call. Accordingly, she was
sent home on administrative leave pending further investigation. The union reported increasing tension within
the department where the plaintiff worked as a result of her Facebook comment. The City also decided that diversity training
in that department would be appropriate and to have a counsellor come in and
speak with employees who were offended.
Following the investigation, the City
determined that [the plaintiff’s] conduct
violated three policies of the Metropolitan Government Civil Service
Commission: (1) her behavior “reflect[ed] discredit upon [her]self, the
department, and/or the Metropolitan Government,” (2) her conduct was
“unbecoming of an employee of the Metropolitan Government,” and (3) her Facebook
profile disclosed that she was a Metro employee but failed to include a
disclaimer that her “expressed views are [hers] alone and do not reflect the
views of the Metropolitan Government.”
A letter was sent to the
plaintiff explaining
that “[t]o advance the mission [of ECC], it
is vitally important that all department employees conduct themselves in a
manner free of bias, demonstrate unquestionable integrity, reliability and
honesty,” and that “[t]he success of [the] agency can be measured by the
perception and confidence the public has in the employees representing the agency.”
The City felt that
the charges were
appropriate, first, because she felt that inclusion of a particularly offensive
racial slur in a public social-media post was objectionable because it did not
reflect Metro policy or the beliefs of people who worked there. Further, she
thought such racially charged language would bring discredit to the office and
testified that “the public that we serve is very diverse, and it’s my
expectation that when someone calls[,] regardless of who they are or where
they’re from, that they’re going to receive the appropriate service.” Donegan
also concluded that Bennett’s behavior warranted discipline because of the
disruption it caused: employees were upset at work, counselors needed to be
involved, and stress levels increased for the agency as a whole.
At some point, the plaintiff took FMLA leave and was
notified of her pre-disciplinary hearing upon her return and was placed back on
administrative leave pending the hearing.
In the meantime, she had written a letter of apology expressing her embarrassment
and humility, but she did not express any of those sentiments at the hearing,
where she instead defended and explained her conduct.
[S]he did not exhibit concern for her
colleagues’ feelings, called them hypocrites, and indicated that she would not
apologize because someone else took something the wrong way—indeed, she
believed her colleagues should instead apologize to her.
Concerned with the lack of remorse, accountability or
acknowledgement of poor judgment, the decision was made to terminate her
employment in order to avoid a repeat of the incident and promote healing
within her department.
The plaintiff sued under §1983 and the First Amendment
retaliation claim was tried to a jury, which indicated in the jury
interrogatories that it found that her Facebook post “was not reasonably likely
to impair discipline by superiors at ECC, to interfere with the orderly
operation of ECC, or to impede performance of” her duties. However, the jury also found that her
Facebook post was “reasonably likely to have a detrimental impact on close
working relationships [within her department] and undermine the agency’s
mission, that [the City] terminated Plaintiff ‘[f]or using the term ‘niggaz’
when expressing her views regarding the outcome of a national election on
Facebook,’ and that doing so violated the three charges outlined in Bennett’s
termination letter.” Upon receiving
these jury interrogatory responses, the trial court ruled that the balancing
factors weighed in the plaintiff’s favor and the jury awarded her $25K in
damages.
In reversing, the Court of Appeals concluded that the trial
court erred in balancing the factors in determining whether the plaintiff’s
speech was constitutionally protected.
To establish a claim for First Amendment
retaliation, a public employee must show that: (1) he engaged in
constitutionally protected speech or conduct; (2) an adverse action was taken
against him that would deter a person of ordinary firmness from continuing to
engage in that conduct; [and] (3) there is a causal connection between elements
one and two—that is, the adverse action was motivated at least in part by his
protected conduct.
In order to find that a government employee’s speech is
constitutionally protected, a court must first determine whether the employee
was speaking as a private citizen or public employee in the course of
employment (which was not an issue in this case) and then,
determine whether the statement in question
constitutes speech on a matter of public concern. . . . Then, if it does, we apply the Pickering balancing test to
determine whether the Plaintiff’s “interest in commenting upon matters of
public concern . . . outweigh[s] the interest of [Metro], as an employer, in
promoting the efficiency of the public services it performs through its
employees.”
The Court began its analysis by determining the degree of
protection to give the plaintiff’s comments based on “the level of importance the
speech has in the community” and its context.
The City conceded that the plaintiff’s comments were political in
nature, but argued that her comments were not “purely political” and thus, not
entitled to a heightened level of constitutional protection. While the plaintiff asserted that her
comments had been purely political, the Court rejected the plaintiff’s argument
that she had been terminated in response for supporting Trump. She had admittedly posted prior comments
supporting Trump and suffered no adverse employment action. Further, the jury had been given multiple
choice options for answering the jury interrogatories and had not selected the
option that she was terminated for expressing her opinion about the results of
the election. It also rejected the
options about workplace disruptions or lack of accountability. Instead, it selected the only option which
quoted the language that she used on Facebook.
The Court reasoned that the First Amendment does not merely
focus on the speaker’s interest, “but also with the public’s interest in
receiving information.” Her comments on
a matter of public interest on which she had no special insight was not
entitled to the same level of protection of, for instance, discussing the
lawful operation of the city government. Clearly, the public would be more interested
in the latter than the former.
It is true that the speech in question was
couched in terms of political debate, made in response to and repeating back
the words of another person, and used a more casual version of an offensive
slur. Still, Bennett’s speech does not
garner the high level of protection that the district court assigned to it, and
the balancing test requires less of a showing of disruption and other factors
than the district court would require. .
. . In any event, the evidence of disruption caused by the language in
Bennett’s Facebook post was substantial.
We apply the Pickering test “‘to determine
[whether] the employee’s free speech interests outweigh the efficiency
interests of the government as employer.’” . . . . The test considers “the manner, time,
and place of the employee’s expression.” . . . . The “pertinent considerations”
for the balancing test are “whether the statement [(a)] impairs discipline by
superiors or harmony among co-workers, [(b)] has a detrimental impact on close
working relationships for which personal loyalty and confidence are necessary,
[(c)] impedes the performance of the speaker’s duties or interferes with the
regular operation of the enterprise,” id., or (d) undermines the mission of the
employer. . . . The consideration of the
employee’s performance, impaired discipline by superiors, harmony among
co-workers, and undermining of the office’s mission is “focuse[d] on the
effective functioning of the public employer’s enterprise.” . . .
Consideration of the first factor of the Pickering test, whether the speech impaired discipline by
superiors or harmony among co-workers, weighs heavily in favor of Metro. The
record makes clear that the harmony of the office was disrupted, and the
district court erred in discounting the importance of harmonious relationships
at ECC. Employees testified that Bennett’s post prompted a “nonstop
conversation” in the office that lasted for days, and for as much as three weeks to a
month after Bennett’s comment, there was a need for a counselor to address the
office.
While nothing about the plaintiff’s comment impaired
discipline among management, “it is possible that any inaction on [management’s]
part in the face of Bennett’s derogatory speech could have been seen as an
endorsement of the speech and impaired future discipline of similar derogatory
statements.”
The Court also found that the second Pickering factor weighed heavily in favor of the City because the
jury had found that the speech had a detrimental impact on the close working
relationships for which personal loyalty and confidence are necessary. Employees had expressed concern about whether
they could work again harmoniously with the plaintiff in an already stressful
environment.
“The third factor, whether Bennett’s speech “impede[d] the
performance of the speaker’s duties or interfere[d] with the regular operation
of the enterprise,” is a close call.” The
jury found that there was no evidence that the plaintiff’s ability to perform
her duties would be impacted, but the Court noted that it was also possible
that her damaged relationships with her colleagues could adversely affect her
work and job performance.
“Finally, Bennett’s comment detracted from the mission of
ECC, weighing again in favor of” the City. “When someone who is paid a salary
so that she will contribute to an agency’s effective operation begins to do or
say things that detract from the agency’s effective operation, the government
employer must have some power to restrain her.”
The jury concluded that her comments had undermined her department’s
mission, but the trial court had discounted this finding in error.
Had Bennett’s profile been private, or had
it not indicated that she worked for Metro, Metro’s argument for terminating
Bennett would not be as strong. But the relevant Civil Service Rules support
the idea that public perception is central to ECC’s mission. Bennett’s public
comments discredited ECC because they displayed racial bias without a
disclaimer that the views were hers alone. This court and several others “have
recognized the interest of a governmental entity in preserving the appearance
of impartiality.”
In rejecting the trial court’s weighting of this factor, the
Court stated that “we consider the role and responsibilities of the employee
and, when the role is public-facing, whether the danger to successful
functioning of the office may increase.”
In Rankin, the employee was not in a public contact
role, and thus, concerns about public perception were too attenuated to limit
the free speech rights of the employee. . . .. Here, however, Bennett was in a
public-facing role and used the slur in a public forum from a profile that
implicated not only Metro Government but also the Metro Police Department. This
situation is exactly the type that Rankin warned could warrant a higher level of caution for
public employees’ choice of words. Id. at 390 (stating that if the employee is in a
“confidential, policymaking, or public contact role,” the danger to the
agency’s successful functioning may be greater).
Second, the district court determined that
because the record contained evidence of only one member of the public
expressing concern, the fear of the post “going viral” was not a sufficiently
substantial justification. But, although we have not addressed the issue
directly, other circuits have held that a reasonable prediction that the public
perception will impact the government’s operations is sufficient. . . . Grutzmacher acknowledges that speech
on social media “amplifies the distribution of the speaker’s message.” . . . . Although this situation, in some
respects, “favors the employee’s free speech interests,” it also “increases the
potential, in some cases exponentially, for departmental disruption, thereby
favoring the employer’s interest in efficiency.”
Third, the district court “view[ed] it as
highly speculative that even if an African American were familiar with
Plaintiff’s Facebook comment and was offended by it, such African American
would be deterred from calling in an emergency.” The concern, however, was not
that African Americans will no longer call for emergency service, but rather—as
Metro explains— that “damaged public perception can lead to many ills” for an
agency that serves the public directly. The Second Circuit has effectively
captured the importance of public trust in such relationships:
The effectiveness of a
city’s police department depends importantly on the respect and trust of the
community and on the perception in the community that it enforces the law
fairly, even-handedly, and without bias. If the police department treats a
segment of the population . . . with contempt, so that the particular minority
comes to regard the police as oppressor rather than protector, respect for law
enforcement is eroded and the ability of the police to do its work in that
community is impaired. Members of the minority will be less likely to report
crimes, to offer testimony as witnesses, and to rely on the police for their
protection. When the police make arrests in that community, its members are
likely to assume that the arrests are a product of bias, rather than
well-founded, protective law enforcement. And the department’s ability to
recruit and train personnel from that community will be damaged. . . . .
The district court’s reference to Bennett’s
use of “niggaz” as “the mere use of a single word” demonstrates its failure to
acknowledge the centuries of history that make the use of the term more than
just “a single word.” The use of the term “evok[es] a history of racial
violence, brutality, and subordination.” . . . . It “may appear innocent or only mildly offensive to
one who is not a member of the targeted group, but be intolerably abusive or threatening
when understood from the perspective of a [person] who is a member of the
targeted group.” Id. “The use of this word, even in jest, could be evidence of
racial apathy.”
The Court also rejected the plaintiff’s argument about a “heckler’s
veto” by giving a hostile mob control over determining what political speech is
protected when, up to the time that she had been terminated, only one member of
the public had complained about her Facebook post.
A heckler’s veto involves burdening or
punishing speech “simply because it might offend a hostile mob.” . . . We have not addressed a heckler’s veto
in this context, but the Ninth Circuit has held that those concerns are not
applicable to the “wholly separate area of employee activities that affect the
public’s view of a governmental agency in a negative fashion, and thereby, affect
the agency’s mission.” . . . The Second
Circuit has taken a similar view, finding that “members of the African American
. . . communities whose reaction . . . the defendants legitimately took into
account . . . cannot properly be characterized as ‘outsiders seeking to heckle
[the plaintiffs] into silence.’” . . .
Because effective emergency service “presupposes respect for the members of
those communities,” such agencies are permitted to account for the possible
reaction of the public when disciplining their employees. Id. The public—as the
consumers of ECC’s services—and Bennett’s colleagues with whom she must work
collaboratively can hardly be said to be “a hostile mob.”
Finally, the Court rejected the plaintiff’s argument that
the employer’s workplace investigation was superficial because she had the
opportunity to present additional evidence and witnesses at her
pre-disciplinary hearing. “The question
in this case is not whether members of the judiciary would have made the
decision to terminate Bennett for using a racial slur in this instance. The
question is whether Bennett’s language was sufficiently protected for the court
to interfere in our proclivity for ‘affording government employers sufficient
discretion to manage their operations.’”
Because Bennett’s speech does not occupy
“the highest rung” of public concern, less of a showing of disruption is
required. Several factors weigh heavily
in favor of Metro. Although there are factors weighing in favor of Bennett,
sufficient disruption was shown to tip the Pickering balance towards Metro.
Based on the above analysis and in light of the discretion we must grant
leadership at Metro, its interest in maintaining an effective workplace with
employee harmony that serves the public efficiently outweighs Bennett’s
interest in incidentally using racially offensive language in a Facebook
comment.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
