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A police officer’s Facebook comments criticizing the police department chief’s decision not to send a representative to attend the funeral of an officer killed in the line of duty was not protected speech, the 5th U.S. Circuit Court of Appeals ruled. The chief was justified in firing the officer to minimize disruption in the department, the court said.
Susan Graziosi was a sergeant of the Greenville (Mississippi) Police Department with more than 25 years of service. Graziosi posted a comment on Facebook criticizing the police department for not sending a representative to the funeral of a police officer killed in the line of duty. Among other comments, she stated that “[t]his is totally unacceptable” and asked the mayor “can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty?” Later that day, Graziosi posted an additional comment that stated “If you don’t want to lead, can you just get the hell out of the way.” Graziosi posted these comments first as her own status updates on Facebook and then on the campaign page of the mayor. Shortly thereafter, Graziosi’s employment was terminated for violating the police department’s rules of conduct.
Graziosi appealed to the city council, but the termination decision was upheld. She then filed a First Amendment retaliation claim in federal court. The district court granted summary judgment in favor of the police department. Graziosi appealed the dismissal of her claim to the 5th Circuit.
Generally, governmental employers, including law enforcement agencies, can fire or discipline employees for being disruptive and for complaining excessively. However, they cannot fire or discipline an employee for speaking out on matters of public concern as a private citizen if the employee’s interest in speaking outweighs the agency’s interest in maintaining efficiency. Here, the 5th Circuit upheld the dismissal, pointing out that while Graziosi may have made the comments while speaking as a citizen, the comments were not of public concern and were instead a private, personal issue. According to the court, the posts amounted to an internal grievance because they constituted a “rant” attacking the police chief and culminated “with the demand that he ‘get the hell out of the way.’ ” Thus, the speech was not entitled to First Amendment protection. The court also found that Graziosi’s minimal interest in speaking on matters of public concern was outweighed by the city’s substantial interest in maintaining discipline and close working relationships and preventing insubordination within the department.
Graziosi v. City of Greenville, 5th Cir., No. 13-60900 (Jan. 9, 2015).
Professional Pointer: Because employees’ use of Facebook is common, public employers should educate employees regarding the consequences of engaging in disruptive unprotected speech and should use caution when making employment decisions based on what could arguably be protected speech.
Robin Banck Taylor is a shareholder in the Jackson, Miss., office of Ogletree Deakins, a labor and employment law firm representing management.
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