One of the nightmares of HR professionals is to be told about a workplace problem “privately as a friend.” Whether something is an informal chat between friends or public notice of a problem is very hard to determine. That was essentially the question in deciding whether a Rancho Cordova sheriff was engaging in protected speech about a public topic or an informal chat among friends.
New Year’s Celebration Takes a Turn
Kate Adams began working for the Sacramento County Sheriff’s Office in 1994. She became Chief of Police for the City of Rancho Cordova in March 2020.
On New Year’s Eve in 2013, Adams was having “a friendly, casual text message conversation” with her coworker and then-friend Dan Morrissey. The two were exchanging New Year’s wishes. At some point in the exchange, Adams sent Morrissey a text message stating, “Some rude racist just sent this!!” One of the images depicted a white man spraying a young black child with a hose and contained a superimposed offensive racial epithet. The other message included an image of a comedian, with superimposed text containing an offensive racial slur. Morrissey responded, “That’s not right.” On the same evening, Adams also texted the same images to another coworker and then-friend, LeeAnnDra Marchese.
Adams’ messages were not posted on social media nor otherwise made readily discoverable by the general public. Neither message contains an intent to communicate the images to the public nor to transmit a comment on the images to the general public. The messages were intended for a purely private audience of several friends in the context of private, social exchanges during “a friendly, casual text message conversation.” Seven years passed without further incident. However, during that period, her friendships with Marchese and Morrissey deteriorated.
In 2015, Adams was promoted to Assistant Chief of Police for the City of Rancho Cordova. In 2019, she was informed of potential misconduct on the part of Marchese. She forwarded the allegation to the department’s Internal Affairs Division. After Marchese learned of Adams’ report, several anonymous misconduct complaints were lodged against Adams—none of which were found substantiated.
Texted Images Come Back to Haunt
In July 2020, Adams filed a formal harassment and retaliation complaint against Marchese with the county’s Equal Employment Opportunity office. During the investigation, Marchese provided printouts of the text messages Adams had forwarded in 2013. The department commenced an investigation of Adams. It then gave her a choice to either resign or be “terminated and publicly mischaracterized as a racist.” An attorney for the county told her that if she agreed to resign, the investigation would never become public. However, if she refused to resign, “the investigation would fuel a ‘media circus’” in which she would be labeled a racist. She chose to resign in September 2021.
Six months later, in March 2022, the president of the Sacramento chapter of the NAACP published an open letter stating that Adams had sent racially charged pictures to other sheriff’s department employees. The letter described the hose-spraying image and called for accountability. The Sacramento Bee then published an article repeating the open letter’s allegations. As a result, Adams resigned from her longtime adjunct teaching position at a local university, and two prospective employers ended their consideration of her. She also claims anxiety, stress, and depression were caused by the significant blows to her professional career and personal reputation.
Was Adams Punished for Making a Protected Communication?
In August 2022, Adams filed suit against the county of Sacramento and the sheriff, claiming violation of her right to free speech under the First Amendment. The trial court threw the claim out, finding a failure to plead that the text messages constituted speech “on a matter of public concern.” According to the court, “sen[ding] racist images, along with [Adams’] disapproval of the images”—as Adams described it—was not speech on a matter of public concern because her speech concerned neither racism in her community nor racism in the police department.” Rather, the speech was intended to be private and didn’t relate to the personnel or functioning of the department. Adams appealed to the U.S. 9th Circuit Court of Appeals (whose rulings apply to all California employers).
The 9th Circuit noted “The First Amendment prohibits government officials from subjecting individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech.” Here, Adams’ burden was to establish that “(1) she spoke on a matter of public concern; (2) she spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action.” If she could demonstrate that, the burden would “shift to the government to demonstrate that (4) it had an adequate justification for treating her differently than other members of the general public; or (5) it would have taken the adverse employment action even absent the protected speech.”
Private Chat, Not Protected Speech
The 9th Circuit found Adams couldn’t meet the threshold burden to show that her statements “substantially address a matter of public concern,” pointing out that “if . . . the speech did not address a matter of public concern, [she] simply has no First Amendment cause of action.” The essential question was whether the speech addressed matters of “public” as opposed to “personal” interest. Where it is essentially self-interested, with no public import, then it isn’t of public concern but rather more properly viewed as essentially a private grievance.
The court considered the content, form, and context of her statements, as revealed by the whole record, to assess whether her messages involved a matter of public concern when they were texted. It concluded her speech was one of personal interest, not public interest.
Speech that addresses the topic of racism can involve a matter of public concern, but speech that complains of only private, out-of-work, offensive individual contact does not. The content of Adams’ private communications to her friends, even when accompanied by a forward of offensive images, doesn’t change the analysis. When made, the texts involved a private matter—her receipt of offensive images transmitted by an anonymous sender. The fact that the images became newsworthy later is irrelevant.
Adams received private offensive texts and complained privately about receiving them to two friends. The form of the communications was private texts not intended to be accessed by the public, evincing nothing more than a casual private conversation among friends, while they exchanged Happy New Year’s wishes. It wasn’t the type of public communication protected by the First Amendment. Therefore, while her other claims may proceed to a trial, her First Amendment retaliation claims were dismissed. Adams v. County of Sacramento; Scott Jones, Sheriff, United States Court of Appeals for the 9th Circuit, No. 23-15970, Filed September 9, 2024.
Bottom Line
This case presents a close call for public employers governed by the First Amendment, as illustrated by a 2022 case, Hernandez v. City of Phoenix, in which the 9th Circuit ruled the opposite way when similarly dealing with racist drawings forwarded by a police officer. In Hernandez, it found the images were posted on a Facebook account and “touched on matters of cultural assimilation and intolerance of religious differences,” so the officer was permitted to make a claim of retaliation for exercise of First Amendment rights. Add to the facts presented here some suggestion by Adams that the images raise a disciplinary issue, and the holding might be different. The facts surrounding arguably protected speech have to be individually and rigorously analyzed.
But the general rule is clear. If the intent of the communication when made is personal—as shown by its form, content, and surrounding circumstances—it deals with a private rather than a public interest, such that a First Amendment retaliation claim cannot be made.
Mark I. Schickman is the editor of California Employment Law Letter. You can reach him at mark@schickmanlaw.com.