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University facilities director’s email warning of potential COVID-19 exposure constitutionally protected conduct

By Ronald Miller, J.D.

The employee sent an email to fellow workers them that “one of our colleagues is self-quarantined due to exposure to COVID-19,” and advising them to seek medical advice to determine their risk and course of action.

A university president was denied a motion to dismiss a suit brought by an employee who alleged he was terminated the day after he sent an email to colleagues at the university advising them of a credible risk of contracting COVID-19. A federal district court in Pennsylvania first determined that as a public employee, the plaintiff spoke as a citizen, rather than an employee, when he sent the email to colleagues. Further, it concluded that the speech at issue was not part of the work he was paid to perform on an ordinary basis. Moreover, both the content and the context of the employee’s email suggested that he was speaking on a matter of public concern (Woolslayer v. Driscoll, October 8, 2020, Dodge, P.).

The employee worked as the university’s Director of Facilities Operations for approximately four years. He was responsible for the physical maintenance and operation of university facilities. According to the employee, he had no power to speak in the name of any university policy maker and was not involved in matters concerning the scope and nature of the university’s functions or education policies.

COVID-19 notification. In late March 2020, the employee discovered that the spouse of one of his employees had been diagnosed with COVID-19. He determined that he should share this information with university employees and caution them to take the necessary steps to avoid infection. However, the employee’s supervisors and members of the Human Resources Department (HR) disagreed with him and recommended that he not alert employees or advise them to take necessary precautions.

Nevertheless, the employee sent an email notifying a number of coworkers that “one of our colleagues is self-quarantined due to exposure to COVID-19.” In view of their colleague’s exposure to COVID-19, the employee advised the coworkers to seek medical advice to determine their risk and their course of action. HR objected to this notification.

First Amendment retaliation. The next day, the university president fired the employee, allegedly because senior leadership had lost confidence in his ability to effectively perform his assigned duties as the Director of Facilities Operations. No other explanation was provided to the employee.

Thereafter, the employee commenced this lawsuit under 42 U.S.C. § 1983 against the university president alleging a claim of First Amendment retaliation, seeking reinstatement to his prior employment. In response, the president filed a motion to dismiss.

The employee asserted that the president fired him in retaliation for exercising his First Amendment right to free speech. To allege a First Amendment retaliation claim based on a violation of the right to free speech, a plaintiff must establish “(1) he engaged in constitutionally protected conduct; (2) the defendant engaged in retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a causal link existed between the constitutionally protected conduct and the retaliatory action.”

For his part, the president contended that the employee failed to establish that he engaged in constitutionally protected conduct. Further, he asserted that the employee’s official capacity claims against him were barred by the Eleventh Amendment.

Constitutionally protected conduct. The Third Circuit has developed a three-prong inquiry to determine if the First Amendment protects a public employee’s speech: “(1) whether the employee spoke as a citizen; (2) whether the statement involved a matter of public concern; and (3) whether the government employer nevertheless had ‘an adequate justification for treating the employee differently from any other member of the general public’ based on its needs as an employer.”

Here, the court rejected the president’s contention that the employee’s email was sent in his capacity as an employee, not a citizen, and therefore failed to qualify as a protected activity. The fact that the employee’s mode of speech was his work email account or that his audience was composed only of university employees was not dispositive regarding whether he spoke as a citizen. Consequently, the court rejected the president’s assertion that all speech within the office is automatically exposed to restriction.

Rather, in order to determine if the employee engaged in protected activity, that is, spoke as a citizen, the relevant inquiry is whether “the speech at issue is itself ordinarily within the scope of [Woolslayer’s] duties . . ..” In this instance, the employee asserted that he was responsible for the physical maintenance and operation of university facilities. He further alleged that the duties of his position did not include the power to speak in the name of any university policy maker, nor was he involved in matters concerning the scope and nature of university functions or education policies.

Accepting those allegations as true, the court determined that the employee’s duties did not encompass alerting university employees of a colleague’s exposure to a highly contagious disease and advising them to seek medical advice. Accordingly, because the speech at issue was not part of the work he was paid to perform on an ordinary basis, the court concluded that the complaint adequately alleged the employee spoke as a citizen.

Matter of public concern. Finally, the court considered whether the employee’s speech involved a matter of public concern. The court concluded that both the content and the context of the employee’s email suggested that he was speaking on a matter of public concern. The content of the email alerted university employees that a colleague had been exposed to a highly contagious disease and urged them to take precautions to protect themselves, and so reasonably led to the conclusion that he was speaking on a matter of significant public concern. Further, the public import of the email was underscored by its context: it was sent at a time when COVID-19 had caused a statewide public health emergency and had been declared a pandemic.

Accordingly, the court concluded that the employee had sufficiently pleaded that he spoke as a citizen on a matter of public concern and was engaged in constitutionally protected conduct.