First Amendment Does Not Protect Employee's Criticism of Supervisor

An employee's criticism of her supervisor's possible misconduct in her official area of responsibility was not protected under the First Amendment, ruled the 7th U.S. Circuit Court of Appeals.

The plaintiff worked as a customer service representative in the Bargersville, Ind., clerk-treasurer's office collecting utility bills and setting up payment plans for customers. In August 2017, the plaintiff noticed that a wealthy resident had fallen behind on his utility payments so she disconnected his service.

The clerk-treasurer countermanded her decision and reconnected the resident's utilities after business hours. The plaintiff believed that the clerk-treasurer's action was influenced by the resident's prominence in Bargersville and by the fact that the two were business partners in a land development project.

The plaintiff confronted the clerk-treasurer about the reconnection and expressed her view that customers should be treated uniformly, regardless of their wealth or the extent of their property ownership. The clerk-treasurer testified that reconnecting the resident's utilities was consistent with his general policy of reducing the number of disconnections in Bargersville, which he viewed as an unnecessary waste of resources.

Shortly after this incident, the plaintiff was removed from handling disconnections. Later that year, she made a fee collection error that cost the town about $1,000. The clerk-treasurer fired her in January 2018.

The plaintiff sued the town, alleging a violation of her First Amendment right to free speech, specifically her objecting to the clerk-treasurer's decision to reconnect the resident's utilities. The First Amendment protects "a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern," the court said. But it "does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities."

The plaintiff's job duties during the relevant time included handling utility disconnections. The court noted that her criticism of the clerk-treasurer for reconnecting a delinquent citizen amounted to a complaint about possible misconduct in her official area of responsibility and therefore was not constitutionally protected.

Despite the plaintiff's contention that it was not her job as a low-level employee to confront a high-ranking elected official about questions of policy, the court stated that precedents did not define job duties so narrowly but rather the inquiry goes beyond an employee's formal job description. Since the plaintiff was responsible for utility disconnections and she criticized her boss over his decision to reconnect a wealthy delinquent customer, the 7th Circuit concluded that her speech "owed its existence to her professional responsibilities," even though she was "not strictly required to make it."

Additionally, the court explained that even if the plaintiff's criticism was constitutionally protected, she lacked sufficient evidence to support an inference that it was a motivating factor in the termination of her employment. The plaintiff's criticism about the decision to reconnect the utilities in August 2017 and her termination five months later in January 2018, the court observed, were "far too distant" to support a causal link between the two.

Alternatively, the plaintiff contended the relevant timeframe should be measured from the time of her criticism to the time that the clerk-treasurer decided to fire her, reducing the timing gap to three months. Nevertheless, the 7th Circuit expressed that to assess whether the employer's timing is suspicious enough to show retaliation, courts look to the duration of time between the protected speech and the adverse employment action itself, not the steps in the decision process that preceded it.

Sweet v. Town of Bargersville, 7th Cir., No. 20-2061 (Nov. 17, 2021).

Professional Pointer: Proper documentation regarding employee deficiencies, including timely performance evaluations, can protect an employer against claims of wrongful action.

Roger Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.