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Posting memo of employees’ right to union representation during investigation not protected speech

By Ronald Miller, J.D.

Affirming summary judgment for a sheriff’s department, the Sixth Circuit, in a 2-1 decision, ruled against the First Amendment retaliation claims of two correctional officers who alleged that they were terminated for posting a memorandum regarding employees’ right to union representation during an investigation into prescription drug trafficking at a jail. After finding the sheriff did not have to show actual disruption of jail operations by the memo, the appeals court concluded that under the Pickering balancing test, the sheriff could reasonably have predicted the memo might disrupt legitimate law enforcement interests in the jail. Judge Moore filed a separate dissenting opinion (Gillis v. Miller, January 6, 2017, Clay, E.).

Prescription drug trafficking. The correctional officers alleged that they were terminated or forced to resign from their positions at the jail in retaliation for posting the memo notifying their fellow correctional officers of their right to union representation during an investigation into prescription drug trafficking at the jail—Weingarten rights. One of the correctional officers was a sergeant at the jail and the other was president of the employees’ union. In early 2014, an investigation began into alleged misconduct at the jail after the sheriff learned that one of his deputies had procured prescription mouthwash for an inmate. The inmate suffered from severe halitosis and periodontal disease and was unable to receive treatment for the condition at the jail.

Investigation tactics. News quickly spread around the jail that an inmate had been given the prescription mouthwash, and several inmates began to speculate that the mouthwash contained codeine, a controlled substance. This news prompted prison management to investigate potential prescription drug trafficking at the jail. During the investigation, the union president began receiving complaints from staff regarding management’s conduct during the investigation. Some of the jail’s staff felt intimidated by management’s investigation tactics. In response to the complaints, the plaintiffs drafted and posted the memo informing jail staff of their rights.

The sheriff was not happy with the posting. He called the union president into his office and threatened prosecution for interfering with an ongoing investigation. An investigation of the sergeant was begun following an anonymous tip to review certain security camera footage from the evening shifts when he was the supervisor. The footage revealed that correctional officers engaged in numerous unacceptable activities. After being placed on administrative leave, the sergeant was terminated. The investigation into the union president uncovered an allegation that he engaged in a sexual relationship with a former inmate during her time in custody and after her release but while under court supervision. Ultimately, he resigned.

Speech not protected. Both correctional officers filed suit under Section 1983, arguing that they were discharged in retaliation for posting the memo. The district court granted the employer summary judgment in both suits. Here, the district court concluded that the corrections officers failed to establish that their speech was constitutionally protected because: (i) it did not touch on matters of public concern; and (ii) even if it had touched on such matters, the plaintiffs could not prevail under the Pickering balancing test, which weighs their First Amendment interests against a public employer’s interest in efficiently managing a public agency.

Balancing test. Agreeing with the district court that the corrections officers’ claims failed under the Pickering balancing test, the Sixth Circuit affirmed its judgment. The appeals court did not reach a conclusion as to whether the Weingarten memorandum touched on matters of public concern. The Pickering balancing test is used “to determine if the employee’s free speech interests outweigh the efficiency interests of the government as employer.” The Sixth Circuit has long recognized “the importance of deference” to law enforcement officials when speech threatens to undermine the functions of organizations charged with maintaining public safety, and recognized that law enforcement officials often have legitimate and powerful interests in regulating speech by their employees.

No actual disruption. Here, the appeals court rejected the corrections officers’ contention that the employer was required to submit evidence that the Weingarten memorandum caused actual disruption to the jail’s operations, and because it failed to submit such evidence, they must prevail under the Pickering test. In fact, the Sixth Circuit has never squarely addressed whether employers must show evidence of actual disruption in order to prevail under the Pickering test. The sister circuits appear to be split on this issue. The Second, Third, Seventh, Eighth, Ninth, and Eleventh Circuits have each held that evidence of actual disruption is not required. By contrast, the Tenth Circuit has held that the “government must produce evidence of an actual disruption of services which results from the employee’s speech.”

The Sixth Circuit observed, like the majority of its sister circuits, that we “do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.” Applying this standard, the sheriff could reasonably have predicted that the Weingarten memorandum might disrupt legitimate law enforcement interests in the jail. The memo expressly counseled the correctional officers not to speak with management without first having a union representative present. Moreover, the memo also expressly encouraged all guards to violate their superiors’ orders and disclose to the plaintiffs the substance of interviews with jail officials. The sheriff could have legitimately predicted that this advice would hinder the department’s ability to conduct a timely and efficient investigation, and halt the flow of illegal contraband into the prison. Thus, the First Amendment did not shield the officers’ conduct.

Dissent. In a dissenting opinion, Judge Moore argued that the majority relied too heavily on the speculative assessments of government employers in endorsing restrictions on public employees’ speech. According to the dissent, while the majority was concerned about safety at the jail and emphasized its concern that the Weingarten memorandum could “hinder [the jail’s] ability to conduct a timely and efficient investigation, and halt the flow of illegal contraband into the prison,” the corrections officers who were subjected to threatening and intimidating behavior by management had a reasonable basis for believing that they could be subject to discipline, and they were therefore entitled to Weingarten’s protections. The dissent argued that viewing the facts in the light most favorable to the plaintiffs, he would conclude that the Pickering balancing test favored the plaintiffs because their important interest in speaking about their colleagues’ union rights during a potentially criminal investigation was not outweighed by the jail’s interest in operational efficiency.