Government employers have reason to contemplate their termination practices in light of the recent opinion issued by the U.S. Court of Appeals for the Sixth Circuit in Mayhew v Town of Smyrna, recommended for publication, Docket No. 16-5103 (6th Cir. 2017). In that case, the plaintiff sued the Town of Smyrna and its town manager, Harry Gill, alleging he was terminated from his position as lab supervisor of the town’s wastewater-treatment plant in retaliation for two distinct acts protected by the First Amendment:
The Court of Appeals held that the former act (reporting statutory/regulatory violations) was not protected speech under the First Amendment; however, the latter act (voicing concerns regarding Smyrna’s hiring practices) was protected speech. Read on for a summary of the factual and legal issues at play that led the Court of Appeals to rule as it did.
The plaintiff was a long-time employee of the Town of Smyrna’s waste water-treatment plant, which is subject to extensive regulation by the EPA, Tennessee Department of Environment and Conservation (“TDEC”), and the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). As lab supervisor, the plaintiff’s job duties included obtaining waste water-treatment certifications, which required him to comply with the laws, rules, permit requirements, or orders of the governmental agency or court governing the waste water system. Under the certification requirements, the plaintiff’s certification could be revoked if he failed to notify TDEC of conditions violating the water quality standard promulgated by any government agency or prepared laboratory analysis results containing inaccurate data.
In his position as lab supervisor, the plaintiff learned that one of his fellow supervisors was engaging in questionable conduct related to the plant’s collection, recording, and reporting of water samples. In February 2014, the plaintiff reported his concerns regarding his fellow supervisor to the then-plant manager, who was next in the chain of command in the treatment plant. From February to June 2014, the fellow supervisor’s improper conduct increased in intensity and activity. In June 2014, the plant manager to whom the plaintiff voiced his concerns resigned, and the plaintiff began reporting his concerns to the plant manager’s supervisor. Some progress was made in investigating the complaints; however, the town manager later promoted his nephew to chief operator of the plant, and promoted the offending supervisor to plant manager without advertising the positions to the public, requiring them to apply for the positions, or permitting anyone else to apply or be considered for the positions. The plaintiff claimed that the town did so despite the employees failing to possess the qualifications set forth in the respective job descriptions.
Ultimately, the plaintiff was terminated by the town manager after the plaintiff authored an email expressing his concerns regarding the newly-promoted employees, including his belief that it was disturbing that the town manager would promote someone responsible for poor working conditions. Furious and offended that the plaintiff was questioning his ethics, the town manager fired the plaintiff because (1) the plaintiff had not fully declared that he was willing to work with the fellow supervisor about whom the plaintiff complained, and (2) the plaintiff’s work ethics could be compromised if he had to work with the fellow supervisor.
addressing whether the plaintiff was improperly discharged in retaliation for engaging in protected speech, the Court of Appeals considered whether the plaintiff had satisfied the elements of a First Amendment retaliation claim, which are: (1) the employee’s speech must be on “matters of public concern”; (2) the employee must speak as a private citizens and not as an employee pursuant to his official duties; and (3) the employee must show that his speech interest outweighs the interest of the state, as an employer.
The court first addressed plaintiff’s claim regarding retaliation for reporting violations of federal and state regulatory requirements at the town’s waste water-treatment plant.[1] As to that claim, the court focused on the second element, whether the plaintiff was speaking as a private citizen or as an employee. The court found that the plaintiff was speaking as an employee when he reported federal and state violations to the city manager because his statements were within his “ordinary job responsibilities” and, while not specifically within his job description, state and federal regulations required him to report appropriate situations to management. Accordingly, the Court of Appeals’ affirmed the district court’s decision regarding this portion of the plaintiff’s claim in the town’s favor, holding that the plaintiff’s retaliatory discharge claim was not protected by the First Amendment.
On the other hand, the Court of Appeals reversed the district court’s holding regarding the plaintiff’s claim that he engaged in protected conduct when he complained about the town promoting the supervisor and the town manager’s nephew in violation of the town’s typical hiring practices and irrespective of the employee’s lacking qualifications for the positions. Focusing on the first element of a retaliatory discharge claim, that the employee’s speech must be regarding “matters of public concern,” the Court of Appeals held that the plaintiff’s speech was mixed speech because it arose in the context of an employment grievance but also touched upon matters of public concern (i.e., nepotism and public corruption). In reviewing the plaintiff’s email to the town’s HR representative, the court concluded that, particularly where the plaintiff’s complaint regarded public corruption, such speech demanded strong First Amendment protections. Accordingly, the Court of Appeals found that the public-concern prong was met, and reversed and remanded that issue to the district court for further proceedings.
[1] Before this, the Court of Appeals went through an analysis of whether the second element in a first amendment retaliation claim is a question of law or a mixed question of law and fact, ultimately holding (there is a circuit split) that it is a question of law for the judge to decide.