The Volokh Conspiracy
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Transgender Kent State Prof Loses First Amendment + Discrimination Claim Related to "Weeks-Long, Profanity-Laden Twitter Tirade Insulting Colleagues and the University"
A short excerpt from the long decision in Patterson v. Kent State Univ., decided Friday by Judge John Nalbandian, joined by Judges Danny Boggs and Richard Allen Griffin:
GPat Patterson, a transgender professor at Kent State University, sued the university on several discrimination and retaliation claims. The claims arise out of Kent State's response to Patterson's weeks-long, profanity-laden Twitter tirade insulting colleagues and the university….
Patterson alleged that certain university actions—"(1) the Dean revoking her offer to lighten Patterson's credit load, (2) the Dean's '[r]evocation' of Patterson's leadership role in the Center, and (3) the English department's denial of the tenure-transfer request" through which Patterson sought to transfer] "from Kent State's Tuscarawas campus to the English department on the main campus"—were discriminatory or retaliatory. No, said the court.
[A.] The court concluded that the actions weren't retaliation against First-Amendment-protected speech:
[To be protected against retaliation by a public employer, the plaintiff's] speech must address a matter of public concern, and the plaintiff's interests in speaking on those matters must outweigh the state's interest in promoting effective and efficient public services….
Speech involves a matter of public concern when it deals with "any matter of political, social, or other concern to the community." "The linchpin of the inquiry is … the extent to which the speech advances an idea transcending personal interest or opinion" and instead impacts our shared social or political life. Allegations of public corruption, for example, touch on matters of public concern. So do remarks about government inefficiency or major government policy decisions. And so do statements exposing governmental discrimination.
On the other hand, speech about internal personnel disputes or management doesn't cut it. Run-of-the-mill "employee beef" doesn't implicate the public concern just because it's been spilled to the public. That's because "the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs." The government, as an employer, must "enjoy wide latitude in managing [its] offices, without intrusive oversight by the judiciary in the name of the First Amendment." Put simply, "complaining about your boss and coworkers is not protected by the First Amendment just because you work for the government."
Patterson's tweets didn't involve a matter of public concern. The gist of the month-long diatribe was to complain about [Dean] Munro-Stasiuk's and [Prof.] Mazzei's decisions on how to handle new academic programming. Munro-Stasiuk and Mazzei were repeatedly called out as "cishet white admin ladies" engaged in "F*ckery," "shit," "trans antagonism," and "epistemic violence" who were "quite literally killing [Patterson]." Mazzei was singled out as a "usurper" and "cishet white admin with zero content expertise" whose field of study was a "sentient trash heap," and who was guilty of "back-stabbery" and "horizontal violence." These are complaints about other Kent State faculty members and their workplace decisions—"employee beef," plain and simple.
The tweets are insulting, disparaging, and targeted. They use profanities, and they describe Munro-Stasiuk and Mazzei in terms of their race and sex. Complaining about and insulting your coworkers simply doesn't implicate a matter of public concern.
Patterson frames the tweets as publicizing Kent State's alleged transphobia and exposing discrimination in the workplace. In fairness, a few tweets do make more general references that sound less like targeted insults. For example, one tweet states: "Academia is fundamentally racist, heterosexist, cissexist, ableist, classist & sexist." In isolation, perhaps that qualifies as protected speech. But the tweet is swarmed on either side by other attacks on Munro-Stasiuk and Mazzei. Indeed, that same tweet's very next sentence accuses Professor Mazzei of "violen[ce]." A public employee can't blend protected speech with "caustic personal attacks against colleagues," and then use the protected speech to immunize those attacks.
And even if the tweets did involve a matter of public concern, they still wouldn't receive protection. Kent State's interest as an employer in administering effective public services outweighs Patterson's interest in this kind of trash talk.
There's a way to raise awareness of discrimination without engaging in profanity-laced and race- and sex-based aspersions against colleagues. The tweets created serious strife within the Kent State community, causing Munro-Stasiuk and Mazzei to feel harassed and insulted. And it led to a dysfunctional work environment for several months.
Mazzei had to text Munro-Stasiuk, for example: "I'm really thinking continuing [having Patterson involved] is unhealthy for the potential program and school, at this point. It's clearly already having an impact. I have concerns." Munro-Stasiuk also testified to how noxious things had gotten. "The foundation of [revoking the offer]," she stated, "was the toxic, hostile tweets that Dr. Patterson had been posting over the course of over a month …. [I]t was escalating, continually targeting [Mazzei], in particular, continually targeting Lauren Vachon and Suzanne Holt, to a certain extent myself." The Dean discussed how Patterson had "show[n] over, and over, and over again" a refusal to be collaborative or respectful and was "completely trying to undermine the process." In short, Patterson had compromised any "ability to lead any initiative" and any "ability to work in the Center, or the [major.]"
Kent State's business is educating students. When an employee seriously undercuts the university's power to do its basic job, the Constitution doesn't elevate the employee over the public that Kent State exists to serve.
All told, "[t]he First Amendment does not require a public employer to tolerate an embarrassing, vulgar, vituperative, ad hominem attack, even if such an attack touches on a matter of public concern." When "the manner and content of an employee's speech is disrespectful, demeaning, rude, and insulting, and is perceived that way in the workplace, the government employer is within its discretion to take disciplinary action."
Here's a longer excerpt of the Tweets:
- June 19: Patterson criticized the "two cishet1 white ladies in charge, with [no] content expertise in this area" (Mazzei and Munro-Stasiuk) and called Mazzei a "usurper."
- June 23: In response to the idea that insulting colleagues on social media was "unprofessional," Patterson wrote, "No the fuck it isn't."
- June 26: "Academia is fundamentally racist, heterosexist, cissexist, ableist, classist & sexist…. [B]lock[ing] multimarg2 faculty from leading is violent."
- June 29: Clarifying who the tweets were about, Patterson referred to people "on the main campus" (Munro-Stasiuk and Mazzei) acting in "a kind of translash." "[T]he minute I raise an equity issue, I'm suddenly read as a problem to be neutralized." Patterson also denounced Kent State's "[i]nstitutional transphobia" and "overt trans antagonism."
- June 30: "I wish there'd have been a grad practicum called Oh, The Places They'll Go: How to Navigate F*ckery as a Multimarg Faculty Member." Patterson again criticized "the white cishet admin with zero content expertise" who would be leading the new major (Mazzei).
- July 3: "Thanks for coming to my TED talk on how u can claim to be a trans ally all you want, but if you pull sh*t to bar trans ppl's access to life chances, ur still a transphobe. Also, if ur a bystander who watches someone do this mess & don't intervene? Also a transphobe."
- July 5: Patterson criticized "individual back-stabbery" and the "horizontal violence … [of people in higher education] who see you as competition & want you to fail," and declared that "the whole damn system is killing you a bit more each day."
- July 6: "I need you to understand the death-dealing & soul-murdering consequences that result from profoundly privileged administrators not grasping the insidiousness with which inequity & violence show up in multimarg faculty & staff workplaces. Y'all are quite literally killing us."
- July 8: "Absolutely zero surprise it's a poli sci prof. Forgive the generalization but that discipline is a sentient trash heap."
- July 10: "I'd like to talk about the epistemic violence of a university attempting to create a [gender-studies] major, but blocking scholars, with whole PhDs in the discipline, from leading the effort. Please. Tell me another discipline where admins try to pull this shit. I'll wait."
[B.] The court also concluded that Patterson hadn't sufficiently shown evidence of transgender identity discrimination. Among other things, the court reasoned,
Patterson … points to the committees' discussion of whether the English department needed more faculty with backgrounds in LGBT studies, claiming that this is direct evidence of discrimination. That argument conflates a professor's scholarly discipline with a professor's personal traits. An Italian person may offer to teach Italian classes, but if a university doesn't need more Italian classes, that's not direct evidence of animus against Italian people. So there's no direct evidence of discrimination….
And the court concluded there wasn't enough circumstantial evidence of such discrimination, either.
[C.] And the court rejected Patterson's claim of discrimination based on perceived disability:
The disability claim rests on one stray remark that Professor Holt made to Mazzei. Recall that Patterson sent several messages to Holt and Lauren Vachon venting at Mazzei; Holt and Vachon then became worried about whether they could work with Patterson. In her deposition, Mazzei recalled Holt saying "that she [Holt] had very deep concerns about Dr. Patterson's stability, mental stability, and that the communications were spiraling downward." Patterson points to this "mental instability" reference to invoke the disability protections of the Rehabilitation Act.
This isolated comment is not the kind of evidence that courts have found satisfies the "regarded as disabled" definition. "Personality conflicts among coworkers (even those expressed through the use (or misuse) of mental health terminology) generally do not establish a perceived impairment on the part of the employer." Holt's remark simply expressed her concern about Patterson's uncollegial and unprofessional attitude. At most, it is a "mere scintilla" of evidence—insufficient to survive summary judgment.
Daniel James Rudary (Brennan Manna & Diamond, LLC) represents the university.
