The Volokh Conspiracy

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Missouri Legislative Employee's Pro-Mask-Mandate Speech Protected by First Amendment


From Mayfield v. Miller, decided Tuesday by Judge Douglas Harpool (W.D. Mo.):

Plaintiff Tad Mayfield worked for the Missouri House of Representatives … from August 29, 2011, until his termination on August 6, 2020. Plaintiff was employed by the House at the time as a Legislative Specialist II. Defendant Dana Rademan Miller … held the title of Assistant Chief Clerk in 2013, and she was Plaintiff's direct supervisor until 2018. In 2018, Miller was promoted to Chief Clerk, and Defendant Emily White … was promoted to Assistant Chief Clerk and became Plaintiff's new direct supervisor until Plaintiff's termination.

Plaintiff sued, claiming in part that he was fired because of a pro-mask-mandate e-mail he had sent on August 3 to the speaker of the statehouse and the president pro tem state senate:

I am writing to you because I feel an ethical and moral obligation to do so. We are living in unprecedented times that requires, likewise, unprecedented actions and decisions from the leadership and citizens of our state. Those actions and decisions, or lack thereof, will be recorded in history as either appropriate measures that helped save lives, or inappropriate and resulted in an increase in lives lost.

Businesses, cities, and states across this great nation have heeded the CDC's warnings and implemented a number of measures designed to slow/stop the spread of COVID-19, including mandatory face coverings, if we are to continue in our efforts to reopen the economy and get people back to work. I am grateful the Missouri House of Representatives has implemented some of the same measures in an attempt to protect Members, staff, and visitors to our Capitol. Unfortunately, as of yet, the decision to require face coverings in the chambers and public spaces in our Capitol has not been made, leaving all who enter our Capitol at greater risk of contracting COVID-19, and ultimately, negates any benefit received by the measures that have been implemented.

It is important to consider, Members from every district in this state are convening in our chambers and then returning to their respective communities to continue campaigning and holding fundraisers for their reelection bids, or assisting in the election of their successors. It compounds an already serious health crisis for Members to unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in our Capitol, and then return home to unknowingly transmit it to their constituents. All this while hundreds if not thousands of new cases are reported in our state every day.

For the health and well-being of all who enter our Capitol, I am requesting that you, as leadership in the House and Senate, adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within our Capitol, excluding the personal office spaces of Members.

With all due respect and for the safety of all Missourians,

Tad Mayfield
Legislative Specialist – Procedures
Assistant Chief Clerks Office
Missouri House of Representatives
(573) 522-3141

The court held the claim could go forward:

To establish a claim of employer retaliation under the First Amendment, Plaintiff must show that "he engaged in activity protected by the First Amendment." "A public employee's speech is protected under the First Amendment if he spoke as a citizen on a matter of public concern, but a public employee's speech is not protected if he spoke pursuant to his official duties." 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." If it is, then the employer may regulate it; otherwise, "the First Amendment provides protection against discipline."

An employee's speech is part of his official employment duties "if it is 'part-and-parcel of' the employee's concerns about his ability to 'properly execute his duties.'" … "If the speech was mostly intended to further the employee's private interests rather than to raise issues of public concern, [his] speech is not protected, even if the public have an interest in the topic of the speech."

And though an earlier July 28 e-mail, the court held, was just about the employee's private interest in the policies applicable to his workplace, the August 3 e-mail wasn't so limited:

It is undisputed that Plaintiff sent the August 3 email affirmatively seeking a mask mandate to keep those who wanted to visit the Capitol safe, and to keep people in the House member's District safe from House members that would take COVID-19 back to them. He expressed his concern that the Capitol had the potential to be super spreader event during a campaign year. Such a concern was, in part, based upon the fact that House members would campaign by knocking on doors after leaving the Capitol.

Defendants suggest that the fact that Plaintiff used his work-issued computer and email address to send the August 3 email may prevent it from constituting protected activity, though there is no support for this. As Plaintiff notes, the content of the communication is what controls….

Nothing contained in the August 3 email indicates that Plaintiff was expressing concern about performing his own job duties, nor does it express direct concern for his own presence in the workplace. The language is clear—Plaintiff meant to tell those with authority over the House and Capitol decisions on COVID-19 protocol his concerns about how a lack of a mask mandate in the Capitol could have led to or heightened an ongoing public health crisis. Plaintiff pointed to potential dangers from citizens going in and out of the Capitol and House members traveling to and from their districts during a campaign year. Nowhere does Plaintiff imply that he had concern over returning to the office pursuant to his job duties….

And the court held that "[a] reasonable jury could find that the August 3 email was a substantial or motivating factor in Plaintiff's termination," which means the case can go to trial so that this factual question could be determined.

Seems correct to me.