So holds Dixon v. University of Toledo (N.D. Ohio Feb, 6, 2012). (I blogged about this case when it was filed.) A few thoughts:
(1) Some of the analysis seems limited to high-level “policymaking” employees, such as a university Associate Vice President.
(2) But some of the argument suggests that any time any government manager with hiring and firing authority — or even with substantial input into hiring and firing decisions — speaks out in opposition to civil rights laws protecting gays, the government may fire the manager on the grounds that the speech (a) “could disrupt the … [d]epartment by making homosexual employees uncomfortable or disgruntled,” (b) might lead “homosexual prospective employees [to] reconsider applications,” and (c) might “lead to challenges to her personnel decisions.”
(3) This in turn highlights the danger to government managerial employees who want to participate in, for instance, campaigns opposing same-sex marriage or proposed laws banning sexual orientation discrimination. If you’re such an employee, you’d be wise to keep your mouth shut on such matters, whether it comes to letters to the editor, to blog posts, to yard signs, to campaign donations, or to signatures on initiative or referendum petitions (in states that disclose such signatures). After all, any of these might be noticed by people who will publicize what you said or did, and who will directly or indirectly inform your supervisors about it.
Maybe that’s an acceptable price to pay for effective functioning of government workplaces — the Pickering test is generally not very speech-protective, on this subject or others — and maybe it’s not. But in any case that seems to be where things are headed, at least in many such workplaces.
As Associate Vice President for Human Resources, Plaintiff was an “appointing authority” at the University, which means she had the power to hire and fire employees…. The University had an Equal Opportunity Policy which prohibited discrimination based on sexual orientation. Further, the University has taken explicit steps to reach out to homosexuals and make them feel welcome.
On April 4, 2008, the Toledo Free Press ran an opinion by Michael Miller which Plaintiff felt compared the modern movement toward increased tolerance and rights for homosexuals to the historical struggles of the African–American civil rights movement and which noted that one University of Toledo campus offered domestic partner benefits and the other did not. Due to her religious conviction, Plaintiff, an African–American woman, felt the need to respond. The Toledo Free Press ran her response on April 18, 2008. In it she objected to the idea that homosexuals are “civil rights victims,” asserted that homosexuality is purely a choice, and noted that the inter-campus benefits disparities involved all employees, not just those interested in domestic partner benefits. Plaintiff identified herself as “an alumnus of the University of Toledo’s Graduate School, an employee and business owner” and signed only her name, though she used her University photograph. She did not mention her title or duties within the University…. Because of the response to her article, Plaintiff was immediately placed on administrative leave….
In a First Amendment Free Speech employment retaliation claim … a plaintiff must show that the speech involved “matters of public concern,” that the state employer’s interest “‘as an employer, in promoting the efficiency of the public services it performs through its employees’ … [does] not outweigh [plaintiff’s] desire to ‘contribute to public debate’ like any other citizen,” and that the speech was not made “pursuant to” the duties of plaintiff’s employment…. Plaintiff was not attempting to fulfill any job duty in writing her article, but to present a personal opinion. Even if she attempted to give herself credence with the public by identifying herself, this does not satisfy the Garcetti test. Thus, Defendants’ theory that Plaintiff spoke pursuant to her job duties does not defeat her First Amendment claim.
Defendants present two arguments concerning the balancing factor [the so-called “Pickering balance” –EV]. First, they argue that Plaintiff’s specific authority automatically tips the balance in their favor. Second, they assert the specific weights and balances presented by this case demonstrate that the University’s interest outweighs Plaintiff’s.
The first argument relies on the Sixth Circuit’s statement that when certain employees “speak on job-related issues in a manner contrary to the position of [their] employer” they have been insubordinate and a presumption arises that the balance weighs in the favor of the employer. Rose v. Stephens, 291 F.3d 917, 923 (6th Cir. 2002). Thus, “when an employee is in a policymaking or confidential position and is terminated for speech related to his or her political or policy views, there is a presumption that the Pickering balance favors the government.” In determining whether this exception applies to a particular situation, the Sixth Circuit directs the use of the four categories describing permissible political patronage employment actions set forth in McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996). If a position falls within one of the categories, the presumption in favor of the employer automatically applies.
The first category includes “positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted.” Category two includes “positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated.” The third category consists of “confidential advisors who spend a significant portion of their time on the job advising category one or category two position-holders on how to exercise their statutory or delegated policymaking authority, [and] other confidential employees who control the lines of communications to category one positions, category two positions or confidential advisors.” The [fourth] category relates to politically balanced positions. Id. A position may still be sufficiently “confidential” or “policymaking” for the Rose presumption to apply without fitting into one of the four categories….
Defendants assert that Plaintiff’s position as Associate Vice President for Human Resources fits into either category two or three. Plaintiff responds with her Declaration which states that she was not delegated “significant” policy making authority and did not spend a “significant” amount of time advising Defendants. She concludes that she was a ministerial employee. While the contours of any delegation or time spent advising may be factual questions, whether any delegation or time spent are “significant” is a question of law for the Court.
Notably, Plaintiff’s Declaration does not mention appointing authority. The Board of Trustees is charged, by Ohio law, with governing the university. Thus, it falls within category one. At the time Plaintiff was fired, the Board had adopted a policy delegating appointing authority to four specific positions, in addition to the President; Plaintiff’s position was listed and Logie’s was not. Further, not only did Plaintiff testify that she was responsible for employment decisions such as hiring and firing, but Ohio law states that all appointing authorities have that power. Jacobs testified that he had been directly involved in only a handful of terminations. Any delegation of the ability to hire and fire is clearly significant, especially due to the possibility of employment related lawsuits. Plaintiff does not present anything to restrict the import of her appointing power and instead focused on Jacobs’ control of written policy. As such, the Court concludes that Plaintiff was vested with a significant portion of the statutory authority available, placing her within category two.
Even though Plaintiff fell within the second McCloud category, the presumption of insubordination will only apply if her statement related her policy view on a matter related to her employment. Plaintiff stated that she did not think homosexuals were civil rights victims. Not only does this statement directly contradict the University’s policies granting homosexuals civil rights protections (such as the Equal Opportunity Policy), but as an appointing authority, Plaintiff was charged with ensuring that the University maintained those protections in employment actions. Thus, the Rose insubordination presumption applies. Plaintiff has offered nothing more than her claim that she “was never insubordinate to anyone” without any justification for why that would overcome (or even address) the presumption. Because the presumption holds, the balance of employee and employer concerns automatically tips in the employer’s favor.
Defendants further argue that even if the Rose presumption does not apply, the actual weighing of employee versus employer interests in this case would clearly favor them. Plaintiff counters by asserting that her speech should be afforded the greatest protection.
In demonstrating the employer’s interests in this case, Defendants again emphasize Plaintiff’s position. As such, they emphasize her authority over employment actions and further note that even she has testified that she was serving as “an ambassador” for the University. Given her position, her statements against the rights of homosexuals could have done very serious damage to the University in three ways (all of which Defendants cited and stated multiple times, including in the termination letter). Though all three may be speculative and concern only what might happen, as noted above, the law does not require Defendants to wait for damage to occur.
First, her statements could disrupt the Human Resources Department by making homosexual employees uncomfortable or disgruntled. Though it did not enter into the actual consideration, Erich Stolz’s letter to Defendants clearly demonstrated that effect: he stated that her letter not only made him individually uncomfortable, but it also reduced his respect for her professionalism. Plaintiff responds that mere offense is insufficient to justify her termination. That might be an appropriate response to Defendants’ offense, but it does not address loss of cohesion in the Human Resources Department as a legitimate interest of her employer. Further, this addresses only the least of the three feared effects.
Second, Plaintiff’s public statements could have interfered with the University’s interest in diversity. Because of her statements, homosexual prospective employees might reconsider applications they knew she would review or withdraw them altogether. This concern removes a significant portion of Plaintiff’s rebuttal that she has only acted fairly because she has not demonstrated how any applicants would know. Plaintiff also complains about consideration of the value of diversity as opposed to focus on teaching capacity alone. However, not only is that an overly simple description of the University’s interest, any decrease in the capability of the University workforce could have an impact on instruction. If fewer qualified people apply, because some are homosexuals who know that the head of Human Resources (Plaintiff) does not think they deserve civil rights, then it could be that the quality of the eventual workforce will decline. Further, Plaintiff has not rebutted the concept that diversity itself (even with regard to non-faculty positions) improves the teaching function.
Third, as the termination letter stated, Plaintiff’s public position could lead to challenges to her personnel decisions. In other words, Defendants feared lawsuits from homosexuals alleging sexual orientation or sexual harassment discrimination. This fear is clearly appropriate as her statement could be offered in a suit for either direct evidence of discrimination or for evidence of pretext (in rebuttal to a non-discriminatory reason). Further, Plaintiff’s article could also lead to additional suits and grievances as people realize they may have a claim or the statement could be just enough to cause someone to decide to sue who otherwise might not have undertaken the expense and effort. Thus, Plaintiff’s statements could subject the University to significant expense through more litigation or more difficult litigation (or other employment action challenges)….