On October 6, 2020, in Bennett v. Metropolitan Government of Nashville, No. 19-5818, the U.S. Court of Appeals for the Sixth Circuit reversed a district court’s decision in favor of a public employee who claimed that the city had terminated her employment in retaliation for exercising her rights under the First Amendment to the U.S. Constitution. The city terminated the plaintiff’s  employment after she allegedly made racially derogatory social media posts on the night of the 2016 presidential election. The Sixth Circuit’s decision applies only to public employers, but it is noteworthy because it sheds further light on how courts apply the balancing test to an employee’s off-the-clock social media speech to warrant protection under the First Amendment.

Background

Danyelle Bennett worked as an emergency telecommunicator at the Emergency Communications Center of the Metropolitan Government of Nashville (Metro) since 2001.

According to the case, on the night of the election in November 2016, Bennett posted an image of the electoral map on social media revealing Donald Trump as the winner. Shortly thereafter, an individual commented on her post using racially derogatory language and expressing his view that certain minorities did not vote for Trump. Bennett replied using the same racially derogatory language but expressed a different view about who did and did not vote for Trump. Bennett later deleted the entire post.

Two Metro employees later complained about Bennett’s comments and another anonymously sent a screenshot of the post to Metro’s human resources (HR) officer. Metro’s HR officer informed her supervisor about the complaints and he agreed that Bennett’s comment were “racially offensive” and “degrading” towards African Americans and Caucasians. After further review, Metro learned that Bennett identified herself on social media as both an employee of the Emergency Communications Center and the Metro Police Department.

In response to Metro’s inquiry about the post, Bennett stated that her comments were a sarcastic reply mocking the prior poster’s comment. Although Bennett acknowledged that other employees may have been offended by her comments, she told her supervisors that she believed they were just “playing the victim” and were not actually offended Ultimately, Metro decided to place Bennett on paid administrative leave while it continued its investigation.

After a lengthy investigation, Metro determined that Bennett’s conduct violated several workplace policies and issued Bennett a charge letter pending a hearing. Metro terminated Bennett’s employment following the hearing.

Bennett sued her former employer alleging, in part, violations of the First and Fourteenth Amendments to the U.S. Constitution. Both parties filed motions for summary judgment and the district court dismissed all but the First Amendment claim. The district court ruled from the bench in Bennett’s favor awarding back pay and damages for humiliation and embarrassment. Metro appealed.

The Sixth Circuit’s Analysis

The Sixth Circuit wrote that “[t]o establish a claim for First Amendment retaliation, a public employee must show that:

(1) [she] engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against [her] that would deter a person of ordinary firmness from continuing to engage in that conduct; [and] (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by [her] protected conduct.”

The Sixth Circuit further explained that to determine whether the discharge of a public employee violates the First Amendment, courts will generally apply a two-step analysis. First, courts must determine whether the statement “constitutes speech on a matter of public concern.” According to the Sixth Circuit, “[t]hen, if it does, we apply [a] balancing test to determine whether the Plaintiff’s ‘interest in commenting upon matters of public concern … outweigh[s] the interest of [Metro], as an employer, in promoting the efficiency of the public services it performs through its employees.’” The court continued, “[t]hese two steps are sub-elements of the first element of the First Amendment retaliation framework.”

The parties did not dispute that Bennett’s discussion of the presidential election was “a matter of public concern.” The Sixth Circuit explained that at issue was whether Bennett’s interest in commenting upon matters of public concern outweighed the interest of Metro in promoting the efficiency of the public services it performs through its employees. In applying this balancing test, the court found that the key considerations are whether the statement (a) “impairs discipline by superiors or harmony among co-workers”; (b) “has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary”; (c) “impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise”; or (d) “undermines the mission of the employer.”

Here, the Sixth Circuit determined that the first factor weighed heavily for Metro because several employees expressed offense with Bennett’s comments. The court also found that the second factor favored Metro because dispatchers must work in harmony or the public could be put at risk. Regarding the third factor, the Sixth Circuit found that the social media post probably would not impact Bennett’s ability to do her job; however, it could negatively affect her relationship with colleagues and thus “affect the quality and quantity of her work.” Finally, the court determined that the fourth factor favored Metro because the racial slurs detracted from Metro’s mission as a public employer.

Although it expressed appreciation for First Amendment values, the Sixth Circuit reversed the district court’s decision for the above reasons and remanded the case to the lower court.

Key Takeaways

This latest decision from the Sixth Circuit in Bennett comes on the heels of a similar decision involving a former City of Cleveland employee who was discharged for making racial slurs in comments about the 2016 Tamir Rice shooting (Marquardt v. Carlton, et al., No. 19-4223 (August 19, 2020)). Although the court does not cite or refer to the Marquardt decision in the majority opinion of the Bennett case, a comparison of the decisions shows that there is substantial room for interpretation in the court’s evaluation of similar racially and politically charged off-the-clock social media commentary. In the Bennett case, the court upheld the firing of the public employee, while in the Marquardt case, the court did not. In the present case, the evidence that tipped the scales in favor of the employer was not the offensiveness of the comment itself, but rather the impact the comment had on the workforce.

Further, the decisions confirm that there is no bright-line test for public employers to discern whether they can take adverse action against an employee who makes racially charged political statements on social media while off the clock. Each case will be assessed using the tests recognized by this court, and will depend not only upon the nature of the commentary but its impact on the workforce.

Private sector employers generally have far more discretion in making termination decisions based on similar facts, as off-the-clock speech by their employees does not have the same First Amendment protections.