Vallecorsa v. Allegheny Cty., No. 2:19-CV-1495-NR, 2022 U.S. Dist. LEXIS 206720, at *2 (W.D. Pa. Nov. 15, 2022).  United States District Court for the Western District of Pennsylvania holds that Allegheny County (“County”) did not violate former employee’s First Amendment rights when it terminated her following a public outcry after her private conversation on Facebook about the shooting of a young Black teenager, Antwon Rose, was publicized.

Background

Plaintiff worked as a full-time dispatcher for the Allegheny County Department of Emergency Services (“Department”).  In this role she would answer 911 calls from people in need of emergency assistance and dispatch police, fire department and emergency medical services personnel.  On June 19, 2018, a young Black man named Antwon Rose was shot and killed while fleeing the police after a traffic stop.  The incident sparked immediate protests and generated debate across many mediums, including social media.

On June 24, 2018, Plaintiff engaged in a conversation on Facebook regarding the protests. Her Facebook account was private and she believed that her posts could only be viewed by her Facebook “friends”.  The exchange included inflammatory statements about the protesters, but also included comments supporting the police.  While the conversation was on her private Facebook page, an individual took a picture of the exchange, reposted it and “tagged” Allegheny County Emergency Services Facebook page.  The posted exchange was seen by many, including Plaintiff’s co-workers and direct supervisors.  Some submitted complaints about having to work with a “racist coworker.” In addition, the public began chastising Department via telephone calls, social media posts and expressed doubt as to the capabilities of the Department.  Some calls threatened protests of the 911 call center and others tied up the 911 lines.

The Department determined that the posts violated several policies, stirred public outcry and mistrust in the Department and disrupted and risked further disruption to the Department’s ability to render emergency services to the public.  Accordingly, the County terminated Plaintiff’s employment because of the Facebook comments.  Plaintiff sued, claiming the termination violated her First Amendment right to freedom of speech.

Discussion

The sole issue in this case was whether the Facebook posts were protected by the First Amendment.  “A State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.”  That said, a citizen who enters government service must accept certain limitations on his or her First Amendment freedom. To establish a First Amendment retaliation claim, a public employee must show that: (1) her speech is protected by the First Amendment; and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that; (3) the same action would have been taken even if the speech had not occurred.

The Court only addressed the first element in this case (i.e., whether her speech was protected). In order for her speech to rise to the level of constitutionally protected expression, the public employee must speak as a citizen (and not as an employee), the speech must involve a matter of a public concern, and the government must lack an adequate justification for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test.  The Pickering balancing test requires the courts to balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

In this case, the Court assumed that Plaintiff spoke as a private citizen and that her statement involved a matter of public concern.  However, the Court determined that the County’s justification for terminating Plaintiff outweighed her interest in making the statements on Facebook.

First, the Court considered the content and context of the speech.  While the Court agreed that the content deserved a high level of protection because it commented on race relations and the treatment of police, it was not entitled to the highest rung of protection because it was made on a private Facebook page and not in a traditional public forum devoted to assembly and debate (like a public online platform).

Nevertheless, even if her speech was entitled to the highest rung of protection, the Court found that the evidence of actual disruption and the nature of the County’s operations supported the County’s decision to terminate Plaintiff’s employment.  The Court noted that Plaintiff’s service is as a dispatcher for the Department, a public facing agency that works intimately with law enforcement, and that law enforcement agencies are typically granted a wide latitude to regulate an employee’s speech when that speech impacts areas such as discipline, morale and uniformity within the force.  In this case, the County demonstrated that public outcry and mistrust (telephone calls, emails, threats of protest) interrupted the Department’s mission.  In addition, the Department’s staff reported feeling unsafe following the public outcry and one employee expressed discomfort with working with Plaintiff.  Accordingly, internal morale and teamwork were impacted.   Moreover, the County demonstrated that there were numerous potential disruptions both internally and externally that, if they had materialized, would have caused substantial disruptions.

Accordingly, Court granted summary judgment in favor of the County and dismissed Plaintiff’s claims because Plaintiff’s interest in commenting on matters of public concern did not outweigh the County’s interest in providing emergency services without disruption to the public under the Pickering test.

PRACTICAL ADVICE

This decision provides helpful guidance to any school district that faces backlash for a social media post made by one of its employees that threatens to disrupt the orderly operations of the school district.  Nevertheless, each case is different and, school districts should work closely with their solicitor if they consider terminating or otherwise punishing a school employee for speech involving matters of public concern.