Last week we wrote about a teacher whose discharge was upheld because of her critical statements about students in her personal blog. In that case, the court held that her personal and often derisive opinions about students and some staff were not protected free speech because on balance they were not about issues of public concern and they caused significant disruption in the school district where she worked.
On a gut level that makes sense. Now the 8th Circuit has gone even further and found that an email addressed to a local reporter drafted by a firefighter shortly after he was disciplined which was critical of his fire chief was not protected speech. The facts are interesting. The email was retrieved by the firefighter’s employer, a Fire Protection District, from the firefighter’s Gmail account. The email, although addressed to a local reporter was never sent to her. A copy of the email was forwarded to the Fire Chief who had suspended him and also circulated to members of the department. Co-workers became angry with the firefighter over what he wrote and the evidence revealed that it created disharmony in the department. The firefighter was subsequently discharged and he sued, claiming among other things, that his discharge was in retaliation for his exercise of free speech.
The 8th Circuit upheld the district court’s dismissal of the plaintiff’s First Amendment claims on the basis that the defendants were entitled to qualified immunity under the balancing test set out by the U.S. Supreme Court in Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois . Although the First Amendment protects the right of a public employee, in certain circumstances, to speak as a citizen addressing matters of public concern, the court was not persuaded that the plaintiff’s unsent email contained matters of public concern, especially given its proximity in time to the plaintiff’s discipline and his difficult relationship with the Fire Chief. The district court also held that the Fire District had provided evidence that the e-mail had caused disruption to its operations.
The balancing test described by the court in Pickering includes six factors to weigh an employee’s speech against the employer’s need to maintain an efficient operation in the workplace. Those factors are: (1) the need for harmony in the workplace; (2) whether the public employer’s responsibilities require a close working relationship; (3) the time, manner and place of the speech; (4) the context in which the dispute arose; (5) the degree of public interest in the speech; and (6) whether the speech impeded the employee’s ability to perform his or her duties.
The court in this case found that on balance the public concern in the plaintiff’s message was likely minimal while the disruption in the workplace and the attack on the Fire Chief’s authority was significant. It concluded that the speech was not protected in this instance.
We speculate that the court reached this conclusion in part because of the heightened need for firefighters to work closely together and the special problems that might exist if disharmony occurs among them. Nevertheless, employees should take note that it is especially important to document disruption of operations before taking adverse action against an employee for critical remarks. To read the case, see Anzaldua v. Northeast Ambulance and Fire Protection Dist., 40 I.E.R. Cas. (BNA) 469, 2015 WL 4140039 (8th Cir. 2015).