Following a recent Supreme Court case, Garcetti v. Cebalis, 126 S.Ct. 1921 (2006), freedom of speech retaliation claims are now governed by a new five-part test. In Garcetti, the Court held that speech by a public official is only protected if it is engaged-in as a private citizen, not if it is expressed as part of the official's public duties. (An audio recording of the oral argument for Garcetti can be found here.)
Prior to Garcetti, courts charged with evaluating such free-speech claims used a test called the "Pickering-Connick" test. However, in the aftermath of Garcetti, the test has been referred to as the "Garcetti/Pickering" analysis. And, the Courts have added an additional step to the traditional four-part test.
In evaluating retaliation claims, the district court now asks the following questions:
Prior to Garcetti, courts charged with evaluating such free-speech claims used a test called the "Pickering-Connick" test. However, in the aftermath of Garcetti, the test has been referred to as the "Garcetti/Pickering" analysis. And, the Courts have added an additional step to the traditional four-part test.
In evaluating retaliation claims, the district court now asks the following questions:
(1) Does the governmental employee speak "pursuant to his official duties"? If so, there is no constitutional protection because the restriction on speech "simply reflects the exercise of employer control over what the employer itself has commissioned or created." Garcetti, 126 S. Ct. at 1960.
(2) If the employee does not speak pursuant to his official duties, but instead speaks as a citizen, is the subject of the speech is a matter of public concern? If the speech is not a matter of public concern, the speech is not protected.
(3) If the employee speaks as a citizen on a matter of public concern, does the employee's interest in commenting on the issue outweigh the interest of the state as employer?
(4) Assuming the employee's interest outweighs the state's interest, was the employee's speech a "substantial factor or motivating factor in a detrimental employment decision"? The employee has the burden of showing this.
(5) Finally, if the employee established that his speech was such a factor, would the employer have taken the same action against the employee in the absence of the protected speech? The employer has the burden of showing this.
The first three steps are to be resolved by a court, and the last two are ordinarily for the trier of fact.
The Tenth Circuit has recently discussed these factors -- in the context of the new 5-part Garcetti-Pickering test -- in the case of Brammer-Hoetler v. Twin Peaks Charter Academy, 2007 WL 2007546 (10th Cir. July 12, 2007). In that case, several former teachers sued a school district claiming they were terminated and retaliated against for exercising certain first amendment rights. The Court reversed a summary judgment in part, but found that a large portion of the plaintiffs' First Amendment claims were barred by the new Garcetti analysis.
The Brammer-Hoetler court struggled to refine the analysis related to determining when an employee speaks pursuant to his official duties. Garcetti declined to articulate a formula for such determinations. After Brammer-Hoetler, it is clear that speech relating to tasks within an employee's "uncontested employment responsibilities" is not protected from regulation (even if such speech relates to an aspect of the job that is not part of the employee's everyday functions). This includes speech that is "generally consistent with the type of activities the employee was paid to do."
An employee's official job description is not conclusive. Speech may relate to official duties even if it deals with activities the employee is not expressly required to perform. If an employee engages in speech during the course of performing an official duty and the speech contributes to the employee's performance of the official duties, the speech is made pursuant to the employee's official duties. Yet, not all speech that occurs at work is made pursuant to the employee's official duties. Rather, the court takes "a practical view of all the facts and circumstances surrounding the speech and the employment relationship."
In Brammer-Hoetler, the Court found nearly all of the speech related to the teacher's "duties as teachers," including: (1) the school's expectations of student behavior, (2) the school's curriculum and pedagogy, and (3) the school's expenditures on instructional aids, furniture and classroom computers. The Court nevertheless held that certain matters were not made pursuant to their official duties, including (1) the resignations of other teachers, (2) whether the school's code of conduct restricted their freedom of speech, (3) staffing levels, (4) the school's expenditures on salaries and bonuses, (5) criticisms of the school board, (6) the visibility of the superintendent and the school board at events, and others.
However, through application of the remainder of the 4 steps of the Garcetti-Pickering test, the Court narrowed plaintiffs' claim to four discrete areas of speech: (1) discussions regarding whether the code of conduct restricted their freedom of speech, (2) matters related to the superintendent's restrictions on speech and association, (3) speech concerning whether the school charter should be renewed, and (4) comments regarding the upcoming board elections. "Speech concerning potential illegal conduct by government officials is inherently a matter of public concern . . . The prospect that the Acadamy's charter might not be renewed is of public concern . . . [and] political speech regarding upcoming Board elections is undoubtedly a matter of public concern." The matter was remanded to the district court for additional proceedings, including the issue of whether the superintendent was entitled to qualified immunity.
Judge Easterbrook, from the Seventh Circuit, has stated that public employers must be able to react to events -- including statements -- that reveal whether employees are faithfully performing their job functions:
The first three steps are to be resolved by a court, and the last two are ordinarily for the trier of fact.
The Tenth Circuit has recently discussed these factors -- in the context of the new 5-part Garcetti-Pickering test -- in the case of Brammer-Hoetler v. Twin Peaks Charter Academy, 2007 WL 2007546 (10th Cir. July 12, 2007). In that case, several former teachers sued a school district claiming they were terminated and retaliated against for exercising certain first amendment rights. The Court reversed a summary judgment in part, but found that a large portion of the plaintiffs' First Amendment claims were barred by the new Garcetti analysis.
The Brammer-Hoetler court struggled to refine the analysis related to determining when an employee speaks pursuant to his official duties. Garcetti declined to articulate a formula for such determinations. After Brammer-Hoetler, it is clear that speech relating to tasks within an employee's "uncontested employment responsibilities" is not protected from regulation (even if such speech relates to an aspect of the job that is not part of the employee's everyday functions). This includes speech that is "generally consistent with the type of activities the employee was paid to do."
An employee's official job description is not conclusive. Speech may relate to official duties even if it deals with activities the employee is not expressly required to perform. If an employee engages in speech during the course of performing an official duty and the speech contributes to the employee's performance of the official duties, the speech is made pursuant to the employee's official duties. Yet, not all speech that occurs at work is made pursuant to the employee's official duties. Rather, the court takes "a practical view of all the facts and circumstances surrounding the speech and the employment relationship."
In Brammer-Hoetler, the Court found nearly all of the speech related to the teacher's "duties as teachers," including: (1) the school's expectations of student behavior, (2) the school's curriculum and pedagogy, and (3) the school's expenditures on instructional aids, furniture and classroom computers. The Court nevertheless held that certain matters were not made pursuant to their official duties, including (1) the resignations of other teachers, (2) whether the school's code of conduct restricted their freedom of speech, (3) staffing levels, (4) the school's expenditures on salaries and bonuses, (5) criticisms of the school board, (6) the visibility of the superintendent and the school board at events, and others.
However, through application of the remainder of the 4 steps of the Garcetti-Pickering test, the Court narrowed plaintiffs' claim to four discrete areas of speech: (1) discussions regarding whether the code of conduct restricted their freedom of speech, (2) matters related to the superintendent's restrictions on speech and association, (3) speech concerning whether the school charter should be renewed, and (4) comments regarding the upcoming board elections. "Speech concerning potential illegal conduct by government officials is inherently a matter of public concern . . . The prospect that the Acadamy's charter might not be renewed is of public concern . . . [and] political speech regarding upcoming Board elections is undoubtedly a matter of public concern." The matter was remanded to the district court for additional proceedings, including the issue of whether the superintendent was entitled to qualified immunity.
Judge Easterbrook, from the Seventh Circuit, has stated that public employers must be able to react to events -- including statements -- that reveal whether employees are faithfully performing their job functions:
Public employers must be able to change assignments in response to events (including statements) that reveal whether employees will be faithful agents of the decisions made by the politically accountable managers. It promotes rather than undermines first amendment values when those who make decisions, and are held accountable for them at the polls, can ensure their implementation within the bureaucracy. Chief Gulledge was entitled to insist that his subordinates not play the “Yes, Minister” game and undermine his directions. The power of transfer is essential if the top of the bureaucracy is to see its decisions through.
See Mills v. City of Evansville, Ind., 452 F.3d 646, 658 (7th Circ. 2006) (cited in Brammer-Hoetler). Further cases will undoubtedly refine the Garcetti-Pickering analysis.
