Eleventh Circuit Holds Complaint by Public Employees Not Protected Under First Amendment

In Alves v. Board of Regents, No. 14-14149, 2015 WL 6517011 (11th Cir. Oct. 29, 2015), the Eleventh Circuit affirmed the United States District Court for the Northern District of Georgia’s grant of summary judgment in favor of the defendants, rejecting the plaintiffs’ First Amendment claims. The court determined that a memorandum submitted by several employees to supervisors at the Georgia State University Counseling and Testing Center did not constitute citizen speech on a matter of public concern that required First Amendment protection from retaliation. Thus, the employees’ subsequent termination did not violate the constitution because the memorandum was employee speech on an issue related to their employment, which is not subject to First Amendment protection.

Defendant-Appellee Dr. Lee-Barber took over as Director of the Counseling and Testing Center at Georgia State in 2009. Plaintiff-Appellants, clinical psychologists with various supervisory responsibilities at the Center, were full-time psychologists when Dr. Lee-Barber assumed her role. In 2011, the plaintiffs submitted a memorandum to Dr. Lee-Barber’s direct supervisors alleging leadership and management issues leading to deficiencies in managing at the Center, among several other complaints. Following an inquiry by the University, during which insufficient evidence was found to substantiate the claims, Dr. Lee-Barber cancelled the Center’s practicum training program and the matching program for interns. After cancelling these programs, Dr. Lee-Barber and another doctor determined that a reduction of staff was in order, eliminating the entire full-time staff of psychologists the Center. All but one of those eliminated were signatories of the Memorandum, and most of them became the plaintiffs in the case.

The plaintiffs filed a claim in the district court claiming the termination was in retaliation for constitutionally protected speech. Reviewing the district court’s determination that the memorandum constituted employee speech and subsequent dismissal, the Eleventh Circuit laid out the two requirements for a public employee’s speech to gain the protection of the First Amendment. First, the employee must speak as a citizen, not an employee. Second, the subject of the speech must be a matter of public concern, not private. With regard to whether the employee spoke as a “citizen,” the court determined that the relevant inquiry was “whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Lane v. Franks, 134 S. Ct. 2369, 2379 (2014). As to the subject of the speech, the court determined that the main thrust of the speech must be on a matter of public concern, and that an employee’s attempt to make speech public can weigh in this analysis.

In applying the above test to the plaintiffs’ speech, the Eleventh Circuit held that each complaint in the memorandum related back to the employees’ ordinary duties because each detailed a way in which the defendant’s actions affected the plaintiffs’ ability to fulfill their roles. The court went on to determine that as supervisors and coordinators they spoke within their ordinary job duties by reporting conduct that interfered with those duties. Thus, the plaintiffs spoke as employees, not citizens. Though the analysis could have ended there, the court continued by determining that though the memorandum touched on a matter of public importance (the treatment of mental health issues) it was not intended to raise issues of public concern. Instead, the memorandum took the form of a private employee grievance about a superior’s management and leadership. As such, the memorandum could not be granted the protection of the First Amendment.

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