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Free Speech

Claim That Public School Employee Was Unconstitutionally Fired for Sharp Pro-COVID-Vaccine Post Can Go Forward


From Webb v. Aspen View Academy, decided Thursday by Magistrate Judge Scott Varholak (D. Colo.); the plaintiff was the Business Manager of a public charter school, and alleges she was fired in part based on a Facebook post (though there's a lot more there as well, discussed in the long opinion). Note that, the government may generally discipline (including by firing) an employee based on the employee's speech if

  1. the speech is said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), or
  2. the speech is on a matter of purely private concern, Connick v. Myers (1983), or
  3. the damage caused by the speech to the efficiency of the government agency's operation outweighs the value of the speech to the employee and the public, Pickering v. Board of Ed. (1968).

Here's the court's analysis of items 2 and 3:

After examining the content, form, and context of Plaintiff's Facebook Posts, the Court concludes that Plaintiff's speech contained therein was a matter of public concern. The Plaintiff's speech in the Facebook Posts, as understood by Defendants, primarily concerned the safety and efficacy of COVID-19 vaccines. In the first exchange, Plaintiff added her input to a lengthy discussion regarding the safety of vaccines and opinions towards vaccine mandates, particularly as they related to schoolchildren. The discussion involved over a dozen individuals. In response to multiple individuals stating that they refused vaccines for their children based on research that they had conducted, Plaintiff stated: "I did lots of research and vaccinated both my son and daughter. You're welcome." Another individual who had an opposing viewpoint responded to Plaintiff's statement, and the two engaged in a back-and-forth discussion.

Candidly, the discussion devolved—with Plaintiff telling the other individual to "enjoy [her] cancer," and the other individual stating that she "pit[ied]" Plaintiff's children and sarcastically asking for "someone [to] pass this bitch a cookie." But the core communication related to which viewpoint regarding vaccines (and, as Defendants understood it, COVID-19 vaccines specifically) was more supported and more protective of children. This topic is one of public concern….

A similar analysis applies to the second Facebook post. There, Plaintiff states that she has received the COVID-19 vaccine in order to "be able to reduce the spread, travel[,] and not have to wear a mask per our public health order." Plaintiff states her belief that others should "get a vaccination or wear a mask to protect others," and that doing so is "good for the human race." Plaintiff concludes by encouraging others to "ask YOUR [doctor] what they think, [because] they'll suggest the vaccine and administer it while wearing a mask!!!" Plaintiff's post received numerous responses from different individuals, many of whom supported her viewpoint and many of whom opposed it.

Again, Plaintiff's speech contains arguably offensive content, with Plaintiff stating that the "[c]onspiracy theories, and big pharma stuff is bullshit…STFU!!" But the plain message of Plaintiff's speech—supporting the COVID-19 vaccine for adults and encouraging others to consult with their doctors on receiving the vaccine—was one of deep interest to the community.

The Court further rejects Defendants' argument that speech contained in the Facebook Posts was not intended to be "disseminated publicly" because the speech was not, for example, "submitt[ed]…to a local publication for dissemination" or made "out loud" at "a public meeting of the DCSD or AVA Board of Directors." In both instances of speech on Facebook, the conversation that Plaintiff was posting into or that resulted from Plaintiff's post involved numerous engaged individuals representing a broad swath of viewpoints. Indeed, Defendants acknowledge that Plaintiff's posts caused "parents and staff" within the AVA community to ask questions, and that "[m]ultiple employees" shared Plaintiff's posts with AVA. The Court is therefore confident that Plaintiff's speech made on Facebook was disseminated at least as publicly (and likely more so) than if it had been made in a "local publication" or at a school board meeting….

Having determined that Plaintiff's Facebook posts were not made pursuant to Plaintiff's official duties and were made on a matter of public concern, the next question is whether the government's interests, as employer, in promoting the efficiency of the public service, are sufficient to outweigh Plaintiff's free speech interests….

In the Tenth Circuit, "[t]he only public employer interest that outweighs the employee's free speech interest is 'avoiding direct disruption, by the speech itself, of the public employer's internal operations and employment relationships.'" But the employer need not show that the speech "in fact disrupted…internal operations and employment relationships." "It need[ ] only to establish that the speech could potentially become so disruptive to…operations as to outweigh [the employee's] interest in the speech." …

Viewing the facts in the light most favorable to Defendants, Defendants simply have not established that Plaintiff's speech actually disrupted AVA's operations and employment relationships, or held real potential to do so.

As for actual disruption of this type, the most that Defendants can muster is that "questions were asked [by parents and staff] as to whether it was professional for an employee of the school to be posting on a social media platform;" AVA had "a few conversations with parents and staff [who] felt that [the speech] was an unprofessional, inappropriate remark to put on social media;" and "[m]ultiple employees shared [the speech] with AVA and were showing it around the school because…they couldn't believe it."

None of the individuals who were asking questions, involved in conversations, or sharing the speech are identified. There is no evidence that Plaintiff's speech strained internal employment relationships or harmony, impacted the ability of AVA to achieve its organizational and educational goals, or impaired Plaintiff's ability to effectively perform her job. Defendants do not provide support for the notion that a public employer has an interest in restricting speech simply because it causes member of the public to have "conversations" or "ask questions."

Nor does the record support a significant potential for disruption. For example, Defendants (understandably) focus on Plaintiff's statement to the parent of an AVA student to "enjoy your cancer," when arguing that Plaintiff's "inappropriate and insulting" language damaged AVA's mission. Defendants proffer that this type of language may "create an environment where students are encouraged to be similarly insulting, [or] where staff members feel free to insult, or fear insult from, other members of the school community."

But this instance of speech occurred on July 8, 2020—well over a year before Plaintiff's termination. Yet Defendants offer no evidence that any of the feared organizational disruptions occurred during that year (besides "a few conversations" with unidentified parents and staff), nor do they provide any reason to believe that these disruptions would materialize over a year after the speech occurred. Relatedly, the lack of documented real-time disciplinary actions for Plaintiff's speech undercuts the strength of Defendants' fears of potential disruption. While Mr. Barber may have had a "verbal conversation" with Plaintiff about "times where…she made some social media posts being angry," the urgency of Defendants' real-time concern about Plaintiff's speech on Facebook does not correspond to the weight that Defendants now seek to place on the harms that the speech could have caused….

Defendants' testimony does indicate that the Facebook posts may have only been a "small piece of" what Defendants considered. Defendants also rely on, for example, documented negative interactions with staff, mistakes raised by the finance committee, and being late with required audits. Looked at in the light most favorable to Defendants, the record could be construed to indicate that the Facebook posts exerted "little or no influence on the employer's decision," such that it "cannot be said to have played a substantial part in the employment decision."

Plaintiff, of course, disputes the legitimacy of these alternative reasons—arguing that they were part of a "pretextual…search for unprofessional conduct after the decision to terminate" Plaintiff for protected speech had already been made. But the record could be read to support the opposite conclusion as it relates to the Facebook posts, with the Facebook posts being unearthed and provided as "more of the unprofessional behavior" only after Mr. Barber and AVA leadership had already recommended that AVA consider terminating Plaintiff.

Ultimately, the record is not so clear on the role that Plaintiff's Facebook posts played in her termination as to merit summary judgment for either Plaintiff or Defendants. Instead, the issue should remain with the factfinder, as is typical in cases such as this.

The court also allowed plaintiff to proceed on her Colorado Lawful Off-Duty Activities Statute, which I discuss at pp. 309-10 of this article; note that the statute would apply to the off-duty speech and other lawful off-duty activities of private employees and not just government employees.

Plaintiff is represented by Bradley John Sherman (Cornish & Dell'Olio, P.C.)