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When an employee engages in an activity protected by law, the safe response by an employer is to consider any adverse employment action related to such activity to be off-limits. But an employee who engages in protected activity can lose that protection when his or her actions go beyond the law's scope.
Matthew Gillis and Fred Walraven were correctional officers for the Bay County, Mich., jail in Bay City, Mich. Gillis was also the president of the Bay County Corrections Officers Union. In 2014, the Bay County sheriff learned that an officer had smuggled prescription mouthwash into the jail for an inmate. Rumors circulated among inmates that the mouthwash contained codeine, leading prison management to initiate an investigation into potential drug trafficking at the jail.
Gillis received multiple complaints from co-workers about the manner of investigation by management, including allegations of threats and intimidation of jail staff in the course of interrogation. In response, Gillis and Walraven jointly drafted a memorandum to bargaining-unit members to advise them of their Weingarten rights. Among other things, the memorandum recommended that employees:
Shortly after the posting of the memorandum, Walraven was terminated and Gillis resigned under circumstances that he claimed constituted a constructive discharge. Both corrections officers brought claims of unlawful retaliation for engaging in free speech through the drafting and publication of the Weingarten rights memorandum, in violation of the First Amendment. The federal district court granted summary judgment to Bay County. The appeals court affirmed.
[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]
The appeals court focused on a balancing test established by the U.S. Supreme Court in Pickering v. Board of Education, which analyzes whether the First Amendment interests of the plaintiffs outweigh a public employer's interests in efficiently managing a public agency. While there was no actual disruption of operations due to the memorandum, the appeals court found that Bay County could "reasonably have predicted" such a disruption.
In the context of a correctional facility faced with allegations of drug smuggling, the appeals court held that the interest in conducting an effective investigation outweighed the plaintiffs' claimed First Amendment rights. The conclusion was buttressed by the memorandum's call for employees to ignore the orders of supervisors to maintain the confidentiality of investigatory meetings. Urging employees to disobey their supervisors in this manner caused the Pickering test to weigh further on the side of the employer.
The appeals court concluded that had Gillis and Walraven simply advised employees of their Weingarten rights, they may have had valid retaliation claims. However, by encouraging noncooperation and insubordination with regard to the investigation through the words they used in the memorandum, Gillis and Walraven had engaged in conduct that outweighed any First Amendment interests attached to the memorandum.
Gillis v. Bay County Sheriff's Department, 6th Cir., Nos. 16-1245/1249 (Jan. 6, 2017).
Professional Pointer: Consider adverse actions carefully, as the risk of a successful retaliation claim is significant.
Scott M. Wich is a partner with the law firm of Clifton Budd & DeMaria LLP in New York City.
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