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Eleventh Circuit concludes speech not protected by First Amendment when made in accordance with job duties, and not focused on matters of public concern.

Alves v. Board of Regents, No. 14-14149 (11th Cir. Oct. 29, 2015)

Short version:

In Alves v. Board of Regents, the Eleventh Circuit affirmed summary judgment in favor of the Board of Regents, regarding five Georgia State University employees’ claims of violation of their First Amendment rights. The employees brought claims under  42 U.S.C. §1983, for retaliation under the First Amendment, alleging that they were terminated in retaliation for submitting a memorandum to university officials objecting to poor leadership and mismanagement by the director of Counseling and Testing Center at the University. The Eleventh Circuit agreed with the district court, that the speech was made as employees, and not citizens, and on matters relating to employment, not public concern, and therefore did not have First Amendment protection.

Long version:

In Alves v. Board of Regents, the Eleventh Circuit affirmed summary judgment in favor of the Board of Regents, regarding five Georgia State University employees’ claims of violation of their First Amendment rights. The employees, all clinical psychologists and former full-time staff employees of the University, brought claims under 42 U.S.C. §1983, for retaliation under the First Amendment and violation of the Georgia constitution, alleging that they were terminated in retaliation for submitting a memorandum to university officials objecting to poor leadership and mismanagement by the Director of the Psychological and Health Services (“the Center”) at the University.

At the University, the Center provides clinical services to the study body, which includes mental health services, which involve psychological assessments of students identified as “safety concerns.”  The Director, Dr. Lee-Barber, assumed the role in 2009, and while the employees were employed as full-time staff and psychologists.

On October 18, 2011, one of the employees, Dr. Gunter, initially made complaints about Dr. Lee-Barber to the Office that deals with issues of discrimination. On October 25, 2011, the employees and two other employees submitted a formal, written memorandum of concern to university officials, including Dr. Lee Barber’s supervisor, about perceptions of poor leadership and management by Dr. Lee-Barber.  The employees complained that Dr. Lee-Barber’s leadership adversely impacted client care, and created an unstable work environment. An investigation ensued between November and December 2011. In January 2012, the University concluded that there was insufficient evidence to substantiate the concerns. On week later, Dr. Lee-Barber made a unilateral decision to reduce the Center’s clientele, and eliminated job duties of three of the employees. In February and March 2012, the same employees were terminated under an alleged reduction-in-force by Dr. Lee-Barber and Vice President of Student Affairs – all but one of the employees terminated had submitted the complaint.

The district court granted the Board of Regent’s motion for summary judgment, concluding that the employees spoke as employees on private matters, rather than citizens on matters of public concern. The court found that the complaints were aimed at how Dr. Lee-Barber’s management affected the Plaintiffs as employees, not how the management affected public health and safety. On appeal, the Eleventh Circuit affirmed, after evaluating the speech under the Supreme Court’s two-step inquiry outlined in Garcetti, whether the employee spoke as a (1) citizen and (2) on a matter of public concern.

The Eleventh Circuit agreed with the district court, that the speech was made as employees, and not citizens, and on matters relating to employment, not public concern, and therefore did not have First Amendment protection. Notably, the Eleventh Circuit evaluated the employees’ job duties, and found that part of their responsibilities were to supervise employees, trainees, and other staff, and that the complaint detailed how Dr. Lee-Barber’s actions affected the employees’ abilities to fulfill those roles.  Therefore, they spoke as employees, and not citizens. Moreover, the speech was not on a matter of public concern because the complaint was not directed to matters of public concern, even if it touched on them. The Court noted that the complaint detailed specific issues relating to management, but was general as to public concern. Therefore, the speech did not have protection under the First Amendment.

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* Cathleen Scott is licensed to practice in Florida only.

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