The Volokh Conspiracy

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Free Speech

"Only an Official with Skin as Thin as Rice Paper Could Find That Insulting"


From Myers v. City of Centerville, decided Thursday by the Sixth Circuit (Judge Richard Suhrheinrich, joined by Judges Karen Nelson Moore and Eric Clay):

By nearly all accounts, James Myers was a model employee for the City of Centerville, steadily climbing the Police Department's ranks over three decades to become a detective sergeant. In 2015, however, Myers started causing headaches for the City's bigwigs—in a smalltown, Frank Serpico sort of way. He reported several serious allegations of misconduct among the Department's upper brass, some of which have yet to be fully investigated.

{[In particular, i]n October 2018, Myers learned that Brad Kavalunas, a longtime employee of the City's Public Works Department "with whom [Myers] was familiar," was fired for actions and speech that the City deemed "bigot[ed]" and harassing. Although Myers was not involved in any investigation leading to Kavalunas's termination, Kavalunas asked him for "a character letter." Myers obliged, writing a letter off-the-clock and at home; that letter, which the parties dub the "Brannon Letter," was later given to Manager Davis by Kavalunas's attorney.} … The City … suspend[ed] Myers without pay for five days. Not long thereafter, the City fired Myers, allegedly for secretly recording a meeting between him, City Manager Wayne Davis, and Police Chief Matt Brown.

Myers sued, claiming he was retaliated for his speech, including the letter supporting the Public Works acquaintance; here's the court's analysis, which for procedural reasons is focused on the suspension based on the letter:

Courts use a three-prong test to determine if a public employee's speech is constitutionally protected. First, the employee must have spoken as a private citizen, not "pursuant to [his or her] official duties." Second, the speech must involve "matters of public concern." Third, the employee's interests, "as a citizen, in commenting upon matters of public concern," must outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." …

As to the Brannon Letter, the defendants challenge only prongs two and three—arguing that the letter did not involve a matter of public concern and that, even if it did, Myers's interests in writing the letter did not outweigh the City's interests in running an efficient workplace….

[W]e have little trouble concluding that the Brannon Letter addresses a matter of public concern…. Myers wrote the letter in support of Brad Kavalunas, a Public Works employee who was fired for alleged workplace misconduct. Myers began the letter by stating that he's known Kavalunas for 24 years, that he vouches for Kavalunas's "personality," "character," and "reputation," and that he was "surprised and saddened" to learn of the alleged misconduct. After giving that preamble, Myers proceeded to the heart of his letter, concluding with these two paragraphs:

Along the way, I have also witnessed many instances of what I will refer to as "shop or locker room talk" between various employees of the Public Works staff over the years. While the language used was frequently inappropriate and often displayed someone's poor attempt at humor, I can say that I never witnessed any situation that bordered on illegal or hate speech. Instead, what I observed was a culture where grown men were accustomed to behaving as adolescents, sometimes using crude jokes or inappropriate language during their social interactions. Furthermore, this type of conduct was pervasive and not limited to just a select few employees. My lay opinion is that the workplace conduct alleged in this instance is or was much more systemic. The use of this type of language was just part of the everyday norm and had in a sense became the culture at Public Works over the last two decades.

While this type of conduct should certainly not be justified, it seems ill-advised to single out one individual as the "poster child" for the same or similar conduct displayed by many in the same group over the last two plus decades. Given Brad's past performance during his long-tenured career, it seems that the City would have been better served to find an alternative to termination. Knowing Brad, the way that I have, it seems to me a demotion, suspension and/or training would have corrected his alleged misconduct and the City would have been able to keep a diligent, trustworthy and dependable individual in their employ.

Simply put, the letter voiced Myers's concern that Kavalunas was unfairly fired for misconduct that the City otherwise tolerated. Indeed, Myers directly asserted "that the workplace conduct alleged in this instance"—i.e., the misconduct allegations lodged against Kavalunas—"is or was much more systemic" within Public Works, which made it unfair to single-out Kavalunas for that conduct….

Viewing the letter's point as such, it addresses a matter of public concern for two interrelated reasons. First, the letter complained about an unfair firing…. Second, and more importantly, Myers viewed the firing as unfair not simply because Kavalunas is a good worker; instead, it was unfair because the City had previously tolerated similar "actual or potential wrongdoing," something the public certainly has an interest in learning about. And the misconduct need not be limited "to illegal acts, for a public concern includes 'any matter of political, social, or other concern to the community.'" The letter, by premising its support of Kavalunas on the City's previous tolerance of similar misconduct, thus crossed the line dividing public matters from internal personnel disputes….

The defendants next claim that the Brannon Letter is unworthy of constitutional protection merely because Myers sent it privately to Kavalunas's attorney, rather than distributing it publicly. Not so. Whether speech addresses "matters of public concern is not premised on the communication of that speech to the public."

Finally, the defendants argue that Myers's references to harassment amounted to merely "an attempt to normalize" the harassing behavior (and thus somehow isn't protected)…. [E]ven if that was Myers's point, it matters little: so long as the point addresses a matter of public concern, the viewpoint taken is immaterial….

The defendants claim [the City could nonetheless punish Myers for his speech because of its] overlapping interests in being able to (1) "make disciplinary decisions without backlash and insult from" employees, (2) "make personnel decisions free from ridicule," and (3) "make an important personnel decision … without interference from [Myers], a City employee who was employed in a totally separate" department….

The defendants' claimed interests to be "free from ridicule" and to "make disciplinary decisions without backlash and insult" are far too sensitive to suffice…. [B]ecause "free and open debate is vital to informed decision-making by the electorate," "the judgment of" public officials "cannot … be taken as conclusive." That implies that some criticism should be expected, if not embraced…. [And in any event], the Brannon Letter's vanilla tone can hardly be called ridicule or insult. At worst, it said that Kavalunas's firing was "ill-advised" and that the "City would have been better served to find an alternative to termination." Only an official with skin as thin as rice paper could find that insulting.

And the defendants' claim that the Brannon Letter "interfered" with Kavalunas's termination is specious at best. As noted, Myers sent the letter to Kavalunas's attorney, who provided it to Manager Davis. Myers did not distribute the letter publicly, nor did he circulate it even among the City's staff. The defendants point to nothing showing that the letter hindered their disciplining Kavalunas (indeed, Myers wrote the letter only after Kavalunas was fired), that the letter impaired harmony among co-workers, or that it had any other detrimental effects.

The defendants' last claim—that the letter was especially intrusive because Myers worked in a separate department—seems to cut both ways. On one hand, Myers was a quasi-outsider injecting himself into another department's proceedings; on the other hand, there's little to no indication that Myers regularly interacted with Public Works employees, so his interjection could damage their working relationships only so much. The defendants have not even asserted, for example, that any Public Works employee (other than Kavalunas) learned of the letter. These unspecific claims of interference are insufficient to deem, on the pleadings and as a matter of law, that Myers's speech is not protected. And, to the extent that Myers's speech exposed "official misconduct[,] … 'the employer's side of the … scale is entirely empty.'" …