First Amendment rights of public employees
Here is the fuller version of the "public employees and First Amendment" page that now appears at:
http://www.workplacefairness.org/index.php?page=retaliationpublic
How does the First Amendment protect public employees?
The First Amendment to the U.S. Constitution says that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Americans often praise the First Amendment as the freedom that most distinguishes our nation from other countries where people are less free. However, when confronted with actual speech on a controversial subject, our history of upholding freedom has been less than consistent.
The first thing to know about the First Amendment is that it is a limit only on government. It prohibits the federal government from making laws that infringe on the rights of religion, speech, press, assembly and petition. Through the Fourteenth Amendment, state and local governments are also prohibited from infringing on these rights. Yet, one of the most powerful restraints on individual freedom is the power of employers to discharge workers. People are dependent on their jobs because they need their income, their health insurance, and their economic security for retirement. If your employer is a private entity, the First Amendment offers you no protection from being fired on account of what you say. (You may still have protection from other sources described below, or in the one state that abolished employment-at-will, Montana.)
Public employees, by definition, work for the government. So, public employees do have protection from retaliation for exercising certain First Amendment rights. Courts have been cautious in this area, limiting the protection to speech that is on matters of "public concern." The Supreme Court is not yet ready to say that public employees are protected from retaliation for any First Amendment activity. Thus, while the government could not put someone in jail for complaining about a meager raise, the government might still be able to fire a public employee for this reason, unless the complaint was a matter of "public concern."
Many public employees have other protections. Those that belong to unions are likely to be protected from any discharge that is without "just cause." This right is protected by binding arbitration. Similarly, many state and local governments have civil service laws that promise continued employment during good behavior. The civil service laws typically create a government agency to conduct hearings on whether there is sufficient evidence to justify a discharge or long suspension. Public employees with these rights will want to carefully consider whether to pursue these protections, or a First Amendment case in court. They will consider the merits of their claims, the reputation of the arbitrators, civil service agency, and the courts in their area. They may consider pursuing both options, possibly accepting a risk that a decision in one case may control the outcome of the other.
Those who report government illegality, waste, and corruption are likely to make the perpetrators mad. By protecting the rights of whistleblowers, we can discourage not only the retaliation, but also the corruption itself.
What has the U.S. Supreme Court said about the First Amendment rights of public employees?
Public employee speech involving matters of public concern constitutes protected speech
under the First Amendment. See Rankin v. McPherson, 483 U.S. 378, 384 (1987). ("The threshold question . . . is whether [an employee's] speech may be 'fairly characterized as constituting speech on a matter of public concern.'").
The U.S. Supreme Court first recognized that public employees could sue for retaliation in Pickering v. Board of Education, 391 U.S. 563 (1968). "[I]t is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech." Pickering, 391 U.S. at 574. In Pickering, the Court recognized the special vulnerability of the public employee and the societal benefits of protecting employment-related speech. The Court set out the balancing test that remains controlling law today: "the interests of the [employee] as a citizen, in commenting on matters of public concern" must be balanced against "the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees."
In 1983, the Court stated, "Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government." Connick v. Myers, 461 U.S. 138, 147 (1983).
"Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions. And a government employee, like any citizen, may have a strong, legitimate interest in speaking out on public matters." Waters v. Churchill, 511 U.S. 661, 674 (1994)
What are the elements of a First Amendment retaliation case?
To win a case of retaliation, these elements are necessary:- that the plaintiff was engaged in a constitutionally protected activity;
- that the defendant's adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and
- that the adverse action was motivated at least in part as a response to the exercise of the plaintiff's constitutional rights.
For a public employee claiming retaliation by the employer, the court must also find
- that the employee's speech was a matter of "public concern"; and
- the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer's interest in promoting the efficiency of the public services it performs through its employees.
What are matters of "public concern"?
Since the First Amendment is a constitutional principle, the doctrines that interpret it come from a series of court cases. The courts add to the list of what subjects are of "public concern" only when a particular case requires them to decide on a new issue. We can look to some of those cases to discern what is, and is not, of "public concern."
In the Pickering case, Marvin Pickering wrote a letter to the editor of an Illinois newspaper criticizing the Board of Education's allocation of school funds between educational and athletic programs. He also questioned the administration's methods of informing, or not informing, the taxpayers of the real reasons why additional tax revenues were being sought for the schools. At a hearing, the Board charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the Board and school administration. The Board found all the statements false as charged and concluded that publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and that "the interests of the school require[d] [Pickering's dismissal]" under state law. There was no evidence at the hearing as to the effect of Pickering's statements on the community or school administration. The Court ordered the Board of Education to reinstate Pickering. The subjects of his letter were "of legitimate public concern" upon which "free and open debate is vital to informed decision-making by the electorate." 391 U.S. at 571-572.
The controversy in Perry v. Sindermann, 408 U.S. 593 (1972), was whether the college should be elevated to 4-year status - a change opposed by the Regents. The Regents refused to rehire a teacher who had testified before committees of the Texas Legislature. The status of the college, therefore, was a matter of public concern, but the Court may have been influenced by the nature of the teacher's speech. By speaking to the legislature at hearings called for the purpose of discussing this issue, the teacher was participating in a core activity of democracy. The legislature cannot perform its function correctly if knowledgeable public employees could not testify about the controversy.
In Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977), a public school teacher was not rehired because, allegedly, he had relayed to a radio station the substance of a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers. The memorandum was apparently prompted by the view of some in the administration that there was a relationship between teacher appearance and public support for bond issues, and indeed, the radio station promptly announced the adoption of the dress code as a news item.
In Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), the Court held that First Amendment protection applies when a public employee arranges to communicate privately with his employer rather than to express his views publicly. Although the subject matter of Mrs. Givhan's statements were not the issue before the Court, it is clear that her statements concerning the School District's allegedly racially discriminatory policies involved a matter of public concern.
In Connick v. Myers, Sheila Myers circulated a petition asking other Assistant District Attorneys about the office's transfer policy, office morale, whether a grievance committee was needed, and whether they felt pressured to work on political campaigns. Harry Connick, the DA, claimed that the questionnaire created a "mini-insurrection" within the office. The Court said that the First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." The Court then carved out an area that is not of "public concern." It stated:When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.. . .For example, an employee's false criticism of his employer on grounds not of public concern may be cause for his discharge but would be entitled to the same protection in a libel action accorded an identical statement made by a man on the street. We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.
In Connick, the Court concluded that Myers' question about pressure to work on political campaigns was a matter of public concern. However, "the manner, time, and place in which the questionnaire was distributed . . . supports Connick's fears that the functioning of his office was endangered." The Court concluded:her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers' discharge therefore did not offend the First Amendment. We reiterate, however, the caveat we expressed in Pickering, 391 U.S., at 569 : "Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged."
Where speech criticizes government inefficiency and waste, not as an aggrieved employee, but as a concerned citizen, the speech is protected. Voigt v. Savell, 70 F.3d 1552, 1559-60 (9th Cir. 1995) (Criticism of judge's treatment of out of state resident's considered public concern); Schwartzman v. Valenzuela, 846 F.2d 1209 (9th Cir. 1988) (Speech protected where staff psychologist criticized the hospital for unnecessary psychotropic drugs, failing to provide safe working conditions, and inadequately supervising a penal code patient); Gillette v. Delmore, 886 F.2d 1194 (9th Cir. 1989) (Speech was protected concerning the manner in which police and fire fighters performed upon a particular occasion); Chappel v. Montgomery Fire Prot. Dist. No. 1, 131 F.3d 564, 579 (6th Cir. 1997) (adequacy of funding for emergency services is a matter of public concern). Matters of health, safety and illegality should be well within the ambit of public concern. "Public interest is near its zenith when ensuring that public organizations are being
operated in accordance with the law." Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986); Charvat v. Eastern Ohio Regional Wastewater Auth., 246 F.3d 607, 618 (6th Cir. 2001) (environmental violations at wastewater treatment plant).
The Court of Appeals in Cincinnati reinstated an elementary school teacher who claimed she was fired for inviting actor Woody Harrelson to come speak to her class about the environmental benefits of hemp. The Court found that a teacher's choice of an in-class speaker was a form of expression entitled to at least some First Amendment protection. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036 (6th Cir. 2001). "[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political. `Great secular causes, with smaller ones, are guarded.'" Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 223.
The result is that some speech is more clearly of "public concern" than others. Matters of elections, pending legislation, corruption, race discrimination, public health and safety are in the zone. Matters of internal employment policy that do not touch on these public concerns are normally unprotected. Other matters may or may not be of "public concern," depending on the scope of media attention, controversy, or, conversely, how deeply they disrupt the function of the public office. Sometimes we just cannot tell what a court will do with a case raising a new area or an issue that raises strong concerns about both public policy and internal disruption. As the Court stated in Connick:Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.
What is the balancing test courts use to decide these cases?
Once a plaintiff states a claim for unlawful retaliation, a court must decide if "the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer's interest in promoting the efficiency of the public services it performs through its employees." Courts have to make this decision after weighing the facts of each particular case. Some balancing factors for a court to consider includewhether the statement impairs discipline by superiors or harmony among coworkers,whether the statement has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, andwhether the speech in question interferes with the normal operation of the employer's business.
The extent of the government's burden to show disruption depends on the nature of the employee's expression. The more important the First Amendment interest, the more disruption the government has to show. Roth v. Veteran's Administration, 856 F.2d 1401, 1407 (1989). A speaker's "personal stake" in a controversy does not prevent speech on the issue from involving a matter of public concern. Same citation.
These factors may seem vague or subjective. For example, even though the education of special needs students is clearly a matter of public concern, a principal may lawfully discharge teachers for disobeying an order to quit talking about this subject. The Court of Appeals in St. Louis held that the speech "resulted in school factions and disharmony among their co-workers and negatively impacted [the principal's] interest in efficiently administering the middle school." Fales v. Garst, 235 F.3d 1122 (8th Cir. 2001).
In Belyeu v. Coosa County Bd. of Education, 998 F.2d 925 (11th Cir. 1993), the Court of Appeals in Atlanta upheld the rights of a teacher's aide who called for a commemoration of Black History Month. She did so in a speech to a PTA meeting. Immediately after the meeting, the principal told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system's interest in avoiding racial tensions outweighed the aide's right to free speech. On appeal, however, the Court reversed, writing that the aide's "remarks did not disrupt the School System's function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so." 998 F.3d at 925.
Is speech protected even if it is just part of doing my job?
This question is currently pending before the U.S. Supreme Court as of this writing in 2005. In the case of Garcetti v. Ceballos, No. 04-473, the Court will decide if employees must be acting as private citizens to receive First Amendment protection, or whether they are protected even while performing their job duties. Here is part of the brief in which the National Employment Lawyers Association joined with the Government Accountability Project and the American Trial Lawyers Academy to ask the Court to do the right thing:The most trenchant weapon against governmental abuse of authority is the whistleblowing employee whose speech identifies waste, illegality or corruption in govern-mental operations. Job-related speech by government employees is critical to maintaining the promise of the First Amendment. It is speech where it counts. And if that speech happens to be part of an employee's job duties, the interests protected by the First Amendment are of even greater significance for the public who is dependent upon responsible government function. This case will establish whether there is constitutional protection for government employees whose responsibilities require them to be, often involuntary, whistleblowers, in order to carry out their duties to the public. If, as this Court has held, a government employee who engages in discretionary speech on matters of public concern is vulnerable and deserving of constitutional protection, the public employee whose duty it is to speak on such matters is even more vulnerable. Likewise, if public employees are uniquely informed due to their government employment, the public employee's unique expertise peaks for speech that is a part of job duties.Finally, an employee suffering retaliation for speech pursuant to job duties has at least as legitimate an interest in speaking on public matters as does any other citizen.No matter how the Court decides the Garcetti case, we can expect that some employment situations will involve more restrictions on speech than others. For example, the speech of teachers in the classroom represents the school's educational product. Most courts apply the more deferential standard that asks whether there is a legitimate educational reason for the school board's policy. One federal appeals court determined that any form of censorship must be reasonably related to a legitimate educational reason. The court ruled as follows in Miles v. Denver Public Schools, 944 F.2d 773, 776-77 (10th Cir. 1991): We are convinced that if students' expression in a school newspaper bears the imprimatur of the school, then a teacher's expression in the "traditional classroom setting" also bears the imprimatur of the school. . . . Although the Pickering test accounts for the state's interests as an employer, it does not address the significant interests of the state as educator.Another teacher found no protection from the Cincinnati appeals court after she showed an R-rated movie (Pink Floyd -- The Wall) to her class. Fowler v. Bd. of Education of Lincoln County, 819 F.2d 657 (6th Cir. 1987), cert. denied, 484 U.S. 986 (1987). As these cases show, many courts are highly deferential to employer interests, especially public school officials. As a result, teachers should understand that the traditional First Amendment rights of academic freedom generally accorded to university professors are much more limited in public primary and secondary schools.
Is filing a grievance protected the same as speech?
Yes, and perhaps even more so. Through the "petition clause" of the First Amendment, the framers recognized that those who ask government to address an unfairness face an extra risk of retaliation. Through the "petition clause," they flatly prohibited any restraint on petitioning government for redress of grievances. At worst, courts will treat a petition as "speech" and require that it pass both the "public concern" and balancing tests before protecting public employee grievants.
Here is what the Court of Appeals in Philadelphia said to expand the protection for filing grievances:
[W]hen government — federal or state — formally adopts a mechanism for redress of those grievances for which government is allegedly accountable, it would seem to undermine the Constitution's vital purposes to hold that one who in good faith files an arguably meritorious "petition" invoking that mechanism may be disciplined for such invocation by the very government that in compliance with the petition clause has given the particular mechanism its constitutional imprimatur. We do not share the Seventh Circuit's apprehension that not applying the Connick "public concern" standard to retaliatory dismissal of a public employee who files a "petition" would constitute "special treatment of the right to petition [that] would unjustly favor those who through foresight or mere fortuity present their speech as a grievance rather than in some other form." Balk, 858 F.2d at 1262. As applied to communications that are not petitions, the Connick rule means that a public employee who goes public — e.g., by writing to The New York Times — with an employment dispute that is not of "public concern" runs the risk of being disciplined by her public employer for undertaking to draw public attention to a private dispute. But when one files a "petition" one is not appealing over government's head to the general citizenry: When one files a "petition" one is addressing government and asking government to fix what, allegedly, government has broken or has failed in its duty to repair.San Filippo v. Bongiovanni, 30 F.3d 424, 445-46 (3d Cir. 1994) (holding deliberate indifference standard applies to failure to investigate dismissal of an employee that may have been in violation of that employee's First Amendment rights), cert. denied, 115 S. Ct. 735 (1995).With a labor grievance, the government can hardly claim that the employee was being disruptive. The employee is following the government's own policy on how to file the grievance! Hopefully other courts will see the light that the right to petition is not limited to matters of public concern. Until then, many labor activists will suffer retaliation without a remedy.
What time limits apply to First Amendment retaliation cases?
The time limit for federal employee claims of retaliation in violation of the First Amendment will depend on the administrative remedies available to them. If they have a right to appeal an adverse employment action, for example to the Merit System Protection Board (MSPB), then they do not have a right to sue in court. Bush v. Lucas, 462 U.S. 367 (1983); Arnett v. Kennedy, 416 U.S. 134, 168 (1974). The time limit for MSPB appeals is typically thirty (30) days. 5 CFR Part 1201.22(b). See
http://www.mspb.gov/foia/forms-pubs/mspbappealform.htm
http://www.mspb.gov/aboutus/title5cfr/1201.htm#%A7%A01201.22
A federal whistleblower who filed a complaint with the Office of Special Counsel (OSC) will have sixty-five (65) days after OSC issues a notice of termination of its investigation. 5 U.S.C. 1214(a)(3). If OSC takes longer than 120 days, then an appeal can be filed anytime thereafter (up until 60 days after receipt of notice from OSC).
The time limit for state and local employees to file a lawsuit for violating the First Amendment varies from state to state. This is because Congress did not establish a time limit for claims under 42 U.S.C. 1983, the federal law that allows people to sue when someone acting "under color of state law" violates rights guaranteed by federal law. So, the Supreme Court has said that federal courts should use the time limit for personal injury claims in the state where the court is located. This is the same time limit set by each state for automobile accident claims. Depending on the state, the time limits run from one year (Kentucky, Louisiana and Tennessee) to six years (Maine and North Dakota). The time limit in Ohio is two (2) years. You can find the time limit in your state from web pages like:
http://www.drugintel.com/public/statute_of_limitations.htm
http://www.brooklynaccidents.com/accident-statutes-of-limitations.cfm
http://www.car-accident-advice.com/statute-of-limitations.html
Do I have other remedies?
Some states may recognize that a discharge in violation of the First Amendment is a wrongful discharge and allow you to sue for damages in state court. See, for example, New Jersey Conscientious Employee Protection Act (N.J.S.A.34:19-1)
http://www.judiciary.state.nj.us/civil/charges/232.htm
We can also ask our state legislators to adopt the Montana law that abolished employment-at-will. In Montana, no employee who has successfully completed the probationary period can be fired without cause. Montana adopted the statute in the 90's and its economy did not stop. Still, no other state government has adopted a similar law.
If you are unlawfully fired, you can also apply for unemployment compensation benefits.
How do I prove I met my duty of mitigation?
Whenever anyone has a legal claim against another, they have a duty to mitigate damages. That means you have to do what you can to minimize the damages. In retaliation and discrimination cases, a discharged worker has a duty to look for new employment. If the other side can convince the judge or jury that you did not do what was reasonable, you could win your case and be awarded one dollar (nominal damages). In employment cases, you must make a good faith effort to reduce the money that you have lost because your former employer caused you to lose your job. This means that you need to actively look for another job. You can find more information about how to document your mitigation at:
http://www.workplacefairness.org/index.php?page=mitigation
Information on building your case is at:
http://www.workplacefairness.org/index.php?page=buildcase
Should I get a lawyer?
It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a retaliation case. Some lawyers with experience will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will be trusting the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer's first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement of the complaint.
When you shop around for an attorney, look for attorneys who have experience in employment matters, such as the members of the National Employment Lawyers Association (NELA).
http://www.workplacefairness.org/index.php?page=attorneys
Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.
If you would like me to help you evaluate our options, I would like to have copies of all the papers you have about your case. When I review your papers, I may be able to point out violations of your rights, or other remedies you might have. If you have any other questions about your case, I hope you would feel free to call on me.
Very truly yours,
Richard R. Renner
Tate & Renner
505 N. Wooster Ave.
P.O. Box 8
Dover, OH 44622
330-364-9900
330-364-9901 (FAX)
Email: rrenner@igc.org