An employer could lawfully terminate an employee who used a racial slur on Facebook, the U.S. 6th Circuit Court of Appeals (whose rulings cover all Ohio employers) recently concluded after applying a test that balances a public employee’s First Amendment right to free speech against the employer’s interest in maintaining an effective workplace.
Danyelle Bennett worked as an emergency dispatcher for the Metropolitan Government of Nashville (Metro). Her Facebook profile identified her as an employee of the Metro Emergency Communications Center (ECC) and Police Department.
A supporter of then-candidate Donald Trump, Bennett stayed up watching the 2016 presidential election returns until he was declared the winner, then posted a picture of the electoral map on Facebook. A stranger posted the following comment: “Redneck states vote[d] for Trump, n***** and latinos states vot[ed] for Hillary.” She replied, “Thank god we have more America loving rednecks. Red spread across all America. Even n***** and latinos voted for trump too!”
The next day, Bennett deleted the Facebook post after several people commented that they were offended. Nevertheless, Metro received numerous complaints.
Supervisor Bruce Sanschargrin and ECC Director Michele Donegan met with Bennett and were taken aback when she argued she was the real victim and that others weren’t truly offended but instead were “playing the victim.” They placed her on paid administrative leave while the matter was investigated.
The investigation revealed Bennett’s comment and use of a racial slur had created discomfort and tension among ECC employees. The impact was particularly problematic because the nature of the job requires the employees to communicate frequently with one another. When it became apparent the level of communication had decreased, Metro provided diversity training and brought in counselors to speak with the employees individually.
Metro charged Bennett with violating three civil service rules. During a hearing, she didn’t express remorse or accept responsibility. The city terminated her, reasoning her comment had discredited Metro, disrupted the workplace, and risked undermining public confidence in the ECC. Further, her lack of remorse created a risk of continued disruption.
Bennett sued Metro for wrongful termination and First Amendment retaliation. The district court ruled in her favor, but the 6th Circuit reversed.
6th Circuit’s Decision
The 6th Circuit noted public employees can sue for First Amendment retaliation if their public employer takes an adverse employment action because they’ve engaged in constitutionally protected speech or conduct. If the speech is on a matter of public concern—and Bennett’s speech indisputably was—then the court must apply a balancing test to determine whether the adverse employment action was unlawful.
The balancing test examined whether Bennett’s interest in commenting on matters of public concern outweighed Metro’s interest in functioning effectively when performing its public duties. Considerations included whether her statement:
- Impaired discipline by superiors or harmony among coworkers;
- Had a detrimental impact on close working relationships;
- Impeded performance of her duties or interfered with Metro’s regular operations; or
- Undermined the employer’s mission.
The 6th Circuit applied the test and concluded Metro had the right to terminate Bennett. The court found her disruption of the workplace was shown by her coworkers’ nonstop conversations about her comment, the resulting need for diversity training and counseling, a decrease in essential job-related communications, and coworkers’ concerns they couldn’t rely on her judgment or her willingness to help every caller. The fact she was unconcerned about her colleagues’ feelings during the trial—and instead called them hypocrites and demanded they apologize to her—showed her return to work would exacerbate the disruption.
Finally, it was reasonable to predict Bennett’s comment would detract from the ECC’s mission because she had held herself out as a Metro employee on her Facebook page, and a perception of bias among ECC employees would undermine the public’s trust in Metro’s ability to provide the same level of services to all citizens. Bennett v. Metropolitan Government of Nashville & Davidson Cty., Tenn., Case No. 19-5818 (6th Cir., Oct. 6, 2020).
Takeaway
Although public employers must be cautious when terminating employees based on speech or conduct protected by the First Amendment, their interests in an effective and functioning workplace can outweigh an employee’s constitutional rights when the speech or conduct disrupts the operation.
Caroline H. Gentry is a partner with Porter Wright Morris & Arthur LLP in Dayton, Ohio. You can reach her at cgentry@porterwright.com.