The Volokh Conspiracy
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Missouri Legislative Employee Was Unconstitutionally Fired for Pro-Mask-Policy Letter
From Mayfield v. Missouri House of Representatives, decided Friday by Eighth Circuit Judge Jane Kelly, joined by Judges Lavenski Smith and Jonathan Kobes:
On August 3, 2020, while employed in the assistant clerk's office of the Missouri House of Representatives …, Mayfield sent an email to Elijah Haahr, the Speaker of the House, and Dave Schatz, the President Pro Tem of the Missouri Senate, titled "Capitol Safety." It read:
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 ….
Three days later, Mayfield was fired; he sued, and won $15K in lost wages, $15K in punitive damages, plus over $160K in attorney fees and court costs, and the Eighth Circuit panel affirmed:
We agree with the district court that Mayfield's speech in the August 3 email was a matter of public concern. First, the email's content focused on protecting the public from the COVID-19 pandemic. Mayfield wrote that he was advocating "[f]or the health and well-being of all who enter [the] Capitol" and requested that leadership "adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within [the] Capitol, excluding the personal office spaces of Members." In the email, Mayfield did not express personal concerns, but rather addressed the welfare of communities across Missouri. Mayfield reasoned that without a masking requirement, "all who enter[ed] [the] Capitol [building were] at greater risk of contracting COVID-19." And he said that, with the special session, "Members from every district" would come to the Capitol, "unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in [the] Capitol, and then return home to unknowingly transmit it to their constituents."
The August 3 email was devoid of any mention of Mayfield personally. Although Mayfield noted capitol staff once, he mentioned them along with elected representatives and visitors, all of whom he thought were at risk of contracting COVID-19 by entering the building. Unlike his previous communications with White, Miller, and the human resources director, Mayfield did not express concerns specific to his or his family's health. Mayfield also did not request remote work accommodations. Rather, the email focused solely on public health and safety during what the Defendants have described on appeal as "the defining political issue of the time." In sum, the content in Mayfield's email squarely addressed a matter of public concern.
Defendants urge that the form and context of the August 3 email dictate otherwise. They point to Mayfield's other, more personal COVID-related communications—asking to stay at home, expressing disappointment that face masks were not being required at the capitol, and the like—to reject the public nature of the email at issue. Defendants argue that the email was merely a continuation of "the same, personal considerations" and "veneer for Mayfield's private desire to continue working at home." Defendants also argue that the form of Mayfield's speech—"an internal, nonpublic email" sent through his work account and during work hours—further shows his email was not a matter of public concern.
The August 3 email's form and context do not change the result here. Mayfield sent a formal email from his work address to his elected representatives, and he sent it in the context of the COVID-19 pandemic, at a time when many staff and elected representatives were planning to convene at the state capitol. The fact that Mayfield previously shared his private concerns about COVID-19 with his superiors and human resources representative does not change the nature of the August 3 email: a public employee's request for individual accommodation does not waive that employee's right to later speak about a related "subject of general interest and of value and concern to the public." …
Because Mayfield's speech was on a matter of public concern, we then ask whether his public employer "has produced evidence to indicate the speech had an adverse impact on the efficiency of the [employer's] operations." "If there is evidence of disruption, an analysis under the so-called Pickering balancing test is necessary."
Defendants bear the burden of putting the Pickering balancing test into play by submitting evidence of disruption. "Any underlying factual disputes concerning whether the plaintiff's speech is protected … should be submitted to the jury through special interrogatories or special verdict forms." This is because "the jury should decide factual questions such as … whether the speech created disharmony in the work place." Here, Defendants failed to submit jury instructions on the Pickering issue. Without factual findings from the jury to support their assertion of disruption, Defendants cannot show that their interests as a public employer outweighed Mayfield's First Amendment rights….
The evidence presented at trial showed that one day after Mayfield sent the August 3 email, Defendants decided to terminate him. And on August 6, Defendants fired Mayfield. Where—as here—temporal proximity between the protected conduct and the adverse employment action is "very close," that proximity can create a factual issue as to whether the protected activity was a substantial or motivating factor in the adverse action. Defendants argue that the reason for Mayfield's termination was "poor performance." But the evidence adduced at trial showed that Mayfield consistently received good performance reviews: in his seven years employed at the House, he had to speak with Miller once about an incident with another employee, but he was never placed on any correction plans or probation. Given this evidence, the issue was not "so one-sided" that the district court could have determined as a matter of law that the August 3 email was not a motivating factor in the decision to terminate Mayfield….
The panel also concluded that the law was clearly established enough that defendants weren't entitled to qualified immunity.
Brandon Corl and Kirk Daniel Holman represent plaintiff.
