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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

First Amendment Retaliation

Ms. Karen Owens was a school teacher at Bruce Upper Elementary School for seventeen (17) years until she was fired on February 9, 2010. Ms. Owens suffered neck and back pain for a number of years, and in October 2009, took leave under the Family Medical Leave Act (“FMLA”) to undergo spinal surgery. The principal told Ms. Owens that she could remain on leave until she received her final x-rays. On January 20, 2010, the principal spoke with Ms. Owens to see when she would return to work. Ms. Owens stated that she had a doctor’s appointment on February 12, 2010 and if the doctor released her, she may be able to return to work on February 15, 2010. The superintendent sent Ms. Owens a letter stating that her FMLA leave would soon expire and requesting that she provide him with a return date so that her status could be determined. On February 4, 2010, Ms. Owens again spoke to the principal and restated that she had a doctor’s appointment later in February. During the same time period, Ms. Owens was in discussions with the principal to secure educational support for her son, a student at the school where she worked. Although some of her son’s teachers thought he should receive assistance, the superintendent vetoed the assistance plan. Ms. Owens met with the State Department of Education to complain about the superintendent’s failure to provide her son with adequate educational support and subsequently, the State Department ordered the school to provide Ms. Owens son with assistance.

On February 9, 2010, the principal sent Ms. Owens a letter terminating her for failure to return to work stating that her FMLA paperwork expired on February 1, 2010, and she did not provide a date for her return before the expiration. Ms. Owens appealed her termination to the School Board but was unsuccessful. Ms. Owens filed a lawsuit in Mississippi state court, alleging that the school violated the FMLA, Americans with Disabilities Act (“ADA”), Age Discrimination in Employment Act (“ADEA”) First Amendment, and Fourteenth Amendment in her termination. The district court found that Ms. Owens failed to present sufficient evidence and granted summary judgment for the School Board on all claims except FMLA. Ms. Owens withdrew her FMLA claim. Ms. Owens appealed to the Court of Appeals on her ADA discrimination and First Amendment retaliation claims.

The First Amendment provides in part, that “Congress shall make no law…abridging the freedom of speech.” U.S. Const. Amend. I. This prohibition was made applicable to the States and their political subdivisions by virtue of the Fourteenth Amendment. U.S. Const. amend. XIV. (It is important to note that First Amendment protections only apply to public employees. If your employer is a private entity, the First Amendment offers you no protections from being fired based on your speech. However, there are other legal protections for terminations based on speech for private employees.)

In regards to a First Amendment retaliation claim, a plaintiff must allege that 1) she suffered an adverse employment action; 2) based on speech that involved a matter of public concern; 3) plaintiff’s interest in commenting on matters of public concern outweighs the employer’s interest in promoting efficiency; and 4) her speech motivated the employer’s adverse action. Pickering v. Board of Education, 391 U.S. 563 (1968). Whether speech is a matter of public concern is a question of law. Some matters that were held to constitute “public concern,” were, writing a letter to the editor criticizing the School Board; testifying before the Legislature regarding elevating a school to four (4) year status; speaking on a radio station about a teacher dress code; speaking out regarding racially discriminatory policies; circulating a petition asking about office morale and the office transfer policy for Assistant District Attorneys. Matters of elections, pending legislation, corruption, discrimination, public health, and safety generally fall under the First Amendment’s purview. Matters of internal employment that do not touch on these public concerns are not normally protected. Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.

Ms. Owens alleges that she was terminated in retaliation for attempting to secure educational support for her son. In this case, Ms. Owens concedes that her speech was not a matter of public concern; however, she contends that she is still entitled to protection under the First Amendment. The Court of Appeals noted that the First Amendment only protects a public employee’s speech in cases of alleged retaliation if the speech addresses a matter of public concern. The Court held that Ms. Owens did not assert a viable First Amendment retaliation claim because her speech did not concern the public and affirmed the district court’s grant of summary judgment in this case.

If you believe you were terminated in retaliation for something you said at work or about your employment, contact an attorney to discuss your legal rights.

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