Psychologists' Complaint About University Isn't Shielded

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By Lisa Nagele-Piazza

Oct. 29 — A group of clinical psychologists for Georgia State University's counseling center can't proceed with their claim that they were fired in retaliation for complaining about the center's leadership in violation of their First Amendment free speech rights, the U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 Oct. 29.

The five claimants were discharged in an alleged program elimination shortly after they submitted a formal memorandum expressing concern about how the center's leadership was affecting client care. They claimed the university's reason for the layoff was pretextual and that they were actually fired in retaliation for submitting their memorandum.

Although public employees accept some limitations on their freedoms, government employers can't fire a worker in retaliation for engaging in First Amendment-protected free speech when the employee is speaking as a citizen on a matter of public concern. The key issue in this case was whether the psychologists' memorandum was an unprotected employee grievance about a matter of personal interest or constitutionally protected speech about student safety and the center's level of client care.

Affirming summary judgment in favor of the university, the psychology program director and the vice president of student affairs, the Eleventh Circuit found that the memorandum didn't constitute citizen speech on a matter of public concern. “We find that Appellants spoke as employees about matters of only personal interest, and their speech is therefore beyond the protection of the First Amendment,” Judge Charles R. Wilson wrote for the majority.

Attorney Says Ruling Conflicts With Lane

The majority does what the U.S. Supreme Court advised against in Lane v. Franks, 189 L. Ed. 2d 312, 134 S. Ct. 2369, 2014 BL 170102 (U.S. 2014), John F. Beasley Jr., an attorney for the psychologists, told Bloomberg BNA Oct. 29.

In Lane, Justice Sonia Sotomayor wrote that “the mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech” (118 DLR AA-1, 6/19/14).

Defense counsel didn't immediately respond to Bloomberg BNA's request for comment.

Psychologists Were Laid Off After Complaining

According to the court, the psychologists submitted the memorandum in October 2011 to the center's director, Jill Lee-Barber, and her supervisor. In the memorandum, the psychologists expressed concern about Lee-Barber's leadership and management. They complained that she “created an unstable work environment” and prevented the staff from being effective in their work. They also complained that Lee-Barber treated “staff of color” less favorably than white staff.

The university investigated their complaints but concluded that the psychologists' “negative attitudes” were due to their desire to run the center based on a more collaborative model. No action was taken against Lee-Barber.

A week after the final report about the investigation was issued, Lee-Barber canceled a practicum training program and laid off all full-time staff psychologists—all but one of whom had signed the memorandum. The university said it planned to outsource clinical services to reduce the costs of running the center.

The psychologists alleged they were actually fired in retaliation for complaining about the program. They claimed their memorandum addressed student safety and client care, which are matters of public concern and are therefore protected by the First Amendment to the U.S. Constitution.

The university argued that the speech wasn't protected because it related to “ordinary job duties” and that the memorandum was an internal complaint about Lee-Barber's management style.

Complaint Addressed Personal Grievances

Employee speech is rarely exclusively public or exclusively private, the appeals court said. Thus, the key question is whether the “main thrust of the speech in question is essentially public in nature or private,” it said.

Siding with the university, the appeals court said that each of the psychologists' complaints “relates back” to their ordinary job duties. They made “vague and sweeping references” to student well-being and the quality of client care, but the majority of the memorandum addressed their personal grievances with Lee-Barber, the court said.

“Appellants’ speech, while ostensibly intertwined with the services provided by the Center, was not intended to address a matter of public concern from the perspective of a citizen,” the court held.

Judge Wm. Terrell Hodges joined the majority opinion.

Speech Outside Scope of Job Duties, Dissent Says

In a separate dissenting opinion, Judge Beverly B. Martin said the First Amendment provides more protection to public employees than the majority's ruling allows.

The claimants “spoke of their own duties only in the context of raising broader concerns about the effects of the Director's mismanagement,” Martin said.

Martin pointed to the Supreme Court's decision in Lane, which partially reversed an Eleventh Circuit ruling. In Lane, a state community college employee was terminated after testifying under subpoena in a state legislator's criminal trial. The Eleventh Circuit had held that the claimant spoke as an employee and wasn't entitled to First Amendment protection because his testimony exclusively involved matters he learned through his job.

But the Supreme Court said the testimony related to a “matter of public concern,” and when a public employee doesn't routinely testify in criminal trials as an ordinary part of his job, he speaks as a citizen whose testimony has First Amendment protection.

In Lane, the court said the critical question is “whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.”

It is clear in this case that the claimants' speech was outside the scope of their ordinary job duties, Martin said. Although the majority emphasized that the psychologists had some supervisory responsibilities within the center, Martin said they were not responsible for assessing Lee-Barber's performance or center leadership's impact on student well-being.

“Public employees ‘are uniquely qualified to comment' on issues of public concern because of the knowledge they gain through their ordinary work responsibilities,” Martin said.

In addition to Beasley, Janet E. Hill represented the psychologists. Bryan K. Webb and Annette M. Cowart, of the Georgia Attorney General's office, represented the university and the individual administrators.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com