Employee Free Speech: Ninth Circuit Discusses Whether Employee’s Speech is Within Official Duties; Factual Analysis Required to Assess Chain of Command Issues

Nelson Anthoine, a low-level employee of the North Central Counties Consortium, jumped the chain of command to report directly to the consortium’s chairman that his immediate supervisor had misrepresented the status of the consortium’s compliance with legal obligations.  The consortium discharged Anthoine and he sued, contending that he was fired in retaliation for his exercise of First Amendment rights.

The legal question was whether Anthoine’s speech was within his “official duties” – a test articulated in past cases, including Garcetti v. Ceballos, decided by the U.S. Supreme Court.

In general, if an employee speaks pursuant to his or her official duties, the speech is not protected by the First Amendment and the employer can discipline the employee.  But if the employee speaks as a private citizen on a matter of public importance, that speech is protected and adverse employment action taken because of it violates the First Amendment.

Past cases have explored the issue of just what constitutes an employee’s “official duties.” For example, in one case the court concluded that a prison guard who complained to her superiors about sex harassment at Calfiornia's Pelican Bay Prison was speaking within her job duties when she complained to the warden (unprotected speech), but not when she wrote to a state senator (protected speech); whether she was within her job duties when she wrote to the state Director of Prisons was a difficult question that the court left for trial.

In Anthoine’s case, the Ninth Circuit followed up on this theme, holding that when a low-level employee complains directly to the employer’s highest ranking officer, he may well have been outside of his official duties and hence engaged in protected speech;  in such a situation, the factual dispute is a difficult one to resolve and  it is improper for the trial court to grant summary judgment in favor of the employer.

The court reiterated the traditional five-part test that applies in these cases. The questions are:

1) Whether the employee spoke on a matter of public concern;

2) Whether the employee spoke as a private citizen or as a public employee;

3) Whether the protected speech was a substantial or motivating factor in an adverse employment action;

4) Whether the state had an adequate justification for treating the employee differently from other members of the general public; and

5) Whether the state would have taken the adverse employment action even absent the protected speech.

Although the test is clear, establishing the individual elements – especially the second one -- often requires a detailed factual showing, particularly where there are many layers of authority and different levels of reporting on a jobsite.  In such cases, summary judgment may be difficult to obtain and only a trial on the merits will resolve the important First Amendment issues.

For your convenience, a complete copy of the court's opinion in Anthoine v. North Coast Central Consortium is attached.

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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