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| Alexandra Berke |
The U.S. Court of Appeals for the Sixth Circuit's recent decision in Bennett v. Metropolitan Government of Nashville and Davidson County,[1] offers guidance to public employers who may seek to limit employee exercise of free speech, while providing some useful guideposts for all employers — public or private — that are concerned about the impact of employee free speech on their operations.
In Bennett, the Sixth Circuit reversed the U.S. District Court for the Middle District of Tennessee's decision awarding damages to Danyelle Bennett and ruling against her employer, the Emergency Communications Center of the Metropolitan Government of Nashville, or ECC, which terminated Bennett after she published certain offensive statements on her Facebook account in contravention of ECC policy. The court's decision lays out the facts in detail, and applies the well-established Pickering test,[2] to reach its result.
Bennett worked as an emergency medical and fire dispatcher for the ECC.[3] When Bennett heard that Donald Trump had won the presidency, around 3 a.m. on Nov. 9, 2016, she published a public-facing post celebrating his election on Facebook before going to bed.[4]
While Bennett slept, someone she did not know commented on her post using a slur while describing voters who supported Trump.[5] The next day, Bennett responded to the comment, using the same slur.[6] Bennett's response quickly attracted her co-workers' attention, as well as criticism from the public at large. Ultimately, she was fired because her posts and related actions violated ECC policy, and she sued for reinstatement.
Bennett's inflammatory comments immediately caused disruption at the workplace, as well as a negative reaction from the public at large. She was off-duty on Nov. 9, when multiple comments from friends and former and current colleagues poured onto her Facebook page.[7]
There were numerous complaints made about Bennett's posts, with the focus on being offended by her use of a racial slur. The ECC human resources director was receiving similar complaints.[8]
In particular, two employees mentioned the "derogatory comment" on Facebook, and a third sent an anonymous complaint to HR by text.[9] Supervisors began to discuss how to respond as complaints continued to circulate at the ECC.
The Nashville mayor's office also received constituent complaints, including allegations that Bennett's post showed 911 dispatchers were not serving the Black residents of Nashville as effectively as its white residents. The agency's assistant director even suggested that the ECC was exceptionally quiet due to the negative reaction to the posts,[10] raising significant public policy concerns along with workplace issues.
Understandably, questions about how to address vocal employee support or opposition to hot-button issues like the Trump presidency, or the Black Lives Matter movement, are being raised in the current polarized climate. While Bennett lays out the legal framework for analyzing public employee free speech rights and applies that standard to a set of egregious facts, our experience with free speech questions arising during the pandemic is less dramatic but no less consequential for the parties.
For example, my firm has been contacted by a private employee who lost their job because personal items on display in their home that were assumed to illustrate their political preferences were visible on a video call.
In contrast, it was Bennett's use of the offensive slur, rather than her support of President Trump, that led the Sixth Circuit to reverse the lower court's ruling. Notably, U.S. Circuit Judge Eric Murphy, a Trump appointee,[11] issued a concurring opinion which observed that he felt that Pickering's "opaque test has an 'obvious chilling effect on free speech,'" but was constrained by precedent to defer to the state government's decision that "its operational interests outweigh the employee's speech interests."[12]
The complaints raised about Bennett's posts by her colleagues, as well as by residents of Nashville, were focused on her use of a racial slur and not on her support of Trump. The opinion makes it clear throughout, including in its final footnote, how Bennett's use of the slur influenced its ruling, going so far as to include the historical meaning of the term to make the point:
Notably, Bennett's supervisors spoke to her when she came back to work on Nov. 10, 2016, raising some of the complaints received.[14] Bennett claimed she was just being sarcastic, and that although other employees seemed offended, they were "playing the victim" and were not actually offended.[15]The history embedded in the term (its exclusive use in the nineteenth century as an assertion of power by whites over their black slaves) combined with the race of the white speaker and the black listener is akin to the speaker saying explicitly:
"I reject the concept of equality, I reject your humanity, I am more powerful than you, and because of that power, I can say anything I want, and you have no recourse."[13]
Bennett was given the opportunity to apologize at roll call that morning, but she refused to do so and was placed on paid administrative leave for a week or two while the ECC investigated the matter.[16] During the investigation period, the ECC decided to take corrective action, including implementation of diversity training for employees, and offering the services of a counselor to speak with employees for one-on-one conversations.[17] These actions proved so popular with the employees that 911 coverage was affected.
The ECC sent a charge letter to Bennett on Dec. 28, 2016, while she was about to return from family leave, outlining three violations of employer policies and her due process rights:[18]
- Her behavior reflected discredit upon herself, the department, and/or the metropolitan government.
- Her conduct was unbecoming of an employee of the metropolitan government.
- Her Facebook profile stated that she was a metro employee but did not include the required disclaimer that her "expressed views are [hers] alone and do not reflect the views of the metropolitan government."[19]
In January 2017, Bennett was afforded a hearing with legal representation, to respond to the charges.[20] She pleaded not guilty and spoke on her own behalf, defending her decision to use the offensive word.[21] She offered no apology for her actions, and was terminated.[22]
In March 2017, Bennett sued the ECC and a jury ruled that Bennett's actions were reasonably likely to have a negative impact on working relationships.[23] The jury decided that the ECC had terminated Bennett for using the slur "when expressing her views regarding the outcome of a national election on Facebook'"[24] and therefore violated the charges outlined in the charge letter.
The district court ruled from the bench that the Pickering balance weighed in Bennett's favor and awarded her back pay and damages for humiliation and embarrassment.[25]
The Sixth Circuit applied the Pickering test in much more detail in this decision, and in doing so, overturned the district court's decision that Bennett's right to free speech outweighed her employer's concerns.
The Pickering test is applied by courts that have determined the statement made by a public employee's speech is a matter of public concern.[26] The Pickering balancing test is used to determine whether the employees' statement outweighs the employer's interest in promoting the efficiency of public services.[27] The test considers the "manner, time, and place of the employee's expression,"[28] as well as the statement's effects on the workplace.
The Pickering test requires that the court review whether the speech "impaired discipline by superiors or harmony among co-workers."[29] The Sixth Circuit determined that this factor weighed heavily in favor of Metro's termination decision, based on four factors:
- The harmony in the office was disrupted, as evidenced by the need to have a counselor in the office for three to four weeks, and to conduct diversity training.
- The speech had a "detrimental impact on close working relationships for which personal loyalty and confidence are necessary."[30] In this role specifically, emergency telecommunicators operate as a team and rely on each other. By using such a hurtful word, colleagues questioned whether they could trust Bennett. Again, this factor weighed in favor of the metropolitan government.
- It was not clear that Bennett's speech "impeded the performance of the speaker's duties or interfered with the regular operation of the enterprise."[31] The circuit court did not give weight to this factor, although it noted that by damaging her relationships with co-workers, Bennett may have harmed her ability to work.
- Whether the statement detracts from the employer's mission; this final factor again weighed in favor of the government.[32]
Bennett's public Facebook profile identified her as a metropolitan government employee, and did not include the disclaimer about her opinions, and the government received complaints from the public regarding the post. The Civil Service Rules demonstrate that the public's perception of government is critical to its mission. Bennett's comment discredited her employer, and prevented it from appearing impartial, which is well established in the law.
In sum, the Sixth Circuit determined that the government's interest in promoting the efficiency of public services outweighed Bennett's interest in making her statement, in the manner that she made it. Although the Pickering test is available only to public employees, there are three takeaways that may be instructive not only for public employers, but for private employers as well, seeking to address potentially disruptive employee speech.
First, employers should have social media policies, and ensure that their employees are following them, before it's too late. In this instance, the metropolitan government had a policy stating that employees needed to have a disclaimer on their social media stating that their opinion does not represent their employer, and Bennett did not follow that procedure. If her social media account had not been publicly searchable, and had included the required disclaimer, the outcome could have been very different.
Second, employers should have a process for evaluating and, if necessary, disciplining employees whose actions disrupt the workplace. Bennett was offered the opportunity to apologize, and to be heard in response to the findings of the employer, which she rejected even though it was obvious that her statements had offended colleagues, the union and members of the public.
Finally, an employee's public use of racial slurs that impact a protected class of colleagues may subject the employee to discipline up to and including termination. In these turbulent times, on investigation of such claims, private employers in particular may conclude that employee safety concerns may outweigh any free speech claims made by the speaker.
Certainly, this election and moment in America will raise more thorny questions of balancing free speech with employer's rights, but Bennett has demonstrated, that even in a conservative court, when the employee makes their statement publicly, the statement affects their colleagues and the public, does not follow the employer's own policies, and is thoroughly investigated without apology from the employee — employers can feel more confident in taking action against the employee.
Alexandra Berke is an associate at Berke-Weiss Law PLLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Bennett v. Metro. Gov't of Nashville & Davidson Cty., Tennessee
, No. 19-5818, 2020 WL 5905067 (6th Cir. Oct. 6, 2020).[2] Pickering v. Board of Education
, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).[3] 2020 WL 5905067, at *1.
[4] 2020 WL 5905067, at *1.
[5] 2020 WL 5905067, at *1.
[6] 2020 WL 5905067, at *1.
[7] 2020 WL 5905067, at *2.
[8] 2020 WL 5905067, at *2.
[9] 2020 WL 5905067, at *2.
[10] 2020 WL 5905067, at *2.
[11] Hon. Eric E. Murphy, The Federalist Society, https://fedsoc.org/contributors/eric-murphy (last visited Oct. 26, 2020).
[12] 2020 WL 5905067, at *14, 20.
[13] 2020 WL 5905067, at *11.
[14] 2020 WL 5905067, at *2.
[15] 2020 WL 5905067, at *2.
[16] 2020 WL 5905067, at *2.
[17] 2020 WL 5905067, at *3.
[18] 2020 WL 5905067, at *4.
[19] 2020 WL 5905067, at *3.
[20] 2020 WL 5905067, at *4.
[21] 2020 WL 5905067, at *4.
[22] 2020 WL 5905067, at *4.
[23] 2020 WL 5905067, at *4.
[24] 2020 WL 5905067, at *4.
[25] 2020 WL 5905067, at *4.
[26] 2020 WL 5905067, at *4.
[27] 2020 WL 5905067, at *4.
[28] 2020 WL 5905067, at *6 (quoting Rankin v. McPherson
, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)).[29] 2020 WL 5905067, at *7.
[30] 2020 WL 5905067, at *7.
[31] 2020 WL 5905067, at *8.
[32] 2020 WL 5905067, at *8.
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