Public Employees First Amendment Rights Upheld By Ninth Circuit; School District Employee Engaged in Protected Speech When She Sat Next To Colleague at Board Meeting

We have commented previously about the First Amendment free speech rights of public employees.  In Nichols v. Dancer, the law took another step in favor of protecting an employee’s right to associate with colleagues who may be involved in controversial issues.

The case arose when the Washoe County School District forced Kathleen Nichols into early retirement against her will. This occurred after Ms. Nichols attended a school board meeting at which her boss was fired. The District claimed it was concerned that her association with her former boss would create conflicts in the office.

Ms. Nichols had worked for the school district for 9 years and during the last 6 of those years, she served as the administrative assistant to Jeffrey Blanck, who was the district’s general counsel. A dispute arose between Blanck and the district superintendent. After Blanck was suspended, Ms. Nichols was transferred to another position; there were no problems with her work performance.

When the Board of Trustees met publicly to consider Blanck’s employment, Ms. Nichols (Blanck's former administrative assistance) not only attended the meeting but sat next to Blanck (but was not observed talking to him). After the meeting -- at which the Board announced that Blanck would no longer be retained as general counsel -- Ms. Nichols was told she would remain in the department to which she had been transferred; that her salary would be frozen; and that she could take early retirement.  She chose the latter and then sued the school district for violating her First Amendment rights because she had chosen to align herself with the former general counsel at a public meeting.

The district court ruled for the school district on a motion for summary judgment. The Ninth Circuit reversed and in so doing noted:

"This case tests the bounds of a public employer’s right to discharge or demote an employee for taking action on a matter of public concern. Under the balancing test in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 568 (1968), we have long given public employers significant discretion to discipline employees if their conduct disrupts the workplace. That discretion, however, has never been unfettered. An employer may not interfere with an employee’s First Amendment rights unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough. In the face of Pickering, the 'because I said so' approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption."

In these cases, the plaintiff must demonstrate that his or her conduct was constitutionally protected and was a substantial and motivating factor in the employment decision.

“It is by now black letter law,” said the court, “that a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression…. At the same time, however, public employees such as Nichols do not enjoy an absolute right to free speech.,,. Rather, as the Supreme Court acknowledged decades ago, 'the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.' Pickering, 391 U.S. at 568. To determine whether Nichols’s conduct receives First Amendment protection, we must engage in the Pickering balancing test, which requires us to seek “a balance between the interests of [the plaintiff], as a citizen, in commenting upon matters of public concern and the interest of the district, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The court cautioned that there are limits to the public employer’s discretion to regulate conduct in the workplace:  “The fact that public employers have significant leeway to regulate employee speech, however, does not mean that their discretion is without bounds. While acknowledging the importance of workplace efficiency, we have never given public employers carte blanche to retaliate against employees whose conduct does not reasonably threaten to disrupt operations.”

There must be actual proof of a workplace disruption to justify a decision based on protected speech.  “Although we accord significant weight to an employer’s reasonable judgments about the workplace,” noted the court, “an employer cannot prevail under Pickering based on mere speculation that an employee’s conduct will cause disruption.”

The balance tipped in Ms. Nichols favor because here was no evidence of any workplace problem. To quote the court:  "The long and short of it is that Nichols is an employee caught in the crossfire between the District and her former boss. In the absence of any evidence that she was disloyal, had disrupted the office or was even reasonably likely to cause disruption in the future—and, viewing the record in the light most favorable to Nichols, there is no such evidence— the District sanctioned her for simply showing up at a public meeting and sitting next to Blanck. Even under the deferential Pickering test, this allegation is insufficient to tip the balance in the District’s favor. We conclude that the District failed to produce adequate evidence to establish, as a matter of law, that its interests in workplace efficiency outweighed meeting and sitting next to Blanck. Even under the deferential Pickering test, this allegation is insufficient to tip the balance in the District’s favor. We conclude that the District failed to produce adequate evidence to establish, as a matter of law, that its interests in workplace efficiency outweighed Nichols’s First Amendment interest in associating with Blanck.”

Note:  The court's original opinion was issued in June 2011, but  a corrected opinion was issued in September 2011 -- only the corrected opinion is attached.

These are often difficult cases that turn on specific facts.  Our firm regularly advises employers and employees on these issues and other concerns related to the workplace.  Feel free to give us a call if you have questions or issues in this area.

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