Privacy Issues in the Workplace

The Court held that Johnson's banners constituted his speech as a public employee. The Court applied the following standard for making this determination for a teacher, in this particular case: "[B]ecause of the position of trust and authority they hold and the impressionable young minds with which they interact, teachers necessarily act as teachers for purposes of [an "official duties" analysis] when [they are] at school or a school function, in the general presence of students, in a capacity one might reasonably view as official." The Court determined that Johnson's banners were pursuant to his "official duties" under this standard: "An ordinary citizen could not have walked into Johnson's classroom and decorated the walls as he or she saw fit, any more than an ordinary citizen could demand that students remain in their seats and listen to whatever idiosyncratic perspective or sectarian viewpoints he or she wished to share." In Coomes v. Edmonds School District No. 15 580 , the Ninth Circuit held that school administrator/teacher’s complaints about a special education program were not protected speech. In that case, the employee, Coomes, was the manager of a school’s Emotional/Behavioral Disorders (“EBD”) program and the primary teacher for students in the program. She made a number of complaints about how the program was run, both up the chain to her supervisors and also to parents. The Ninth Circuit found that her speech was not protected as it was made as part of her employment responsibilities. Her speech to her supervisors was made pursuant to her role as an employee and was not protected. Her speech to parents, while outside of the chain of command, was also part of her job as head of the program. Thus, her speech was not protected by the First Amendment. The United States Supreme Court in Borough of Duryea v. Guarnieri, 581 held that public employees cannot assert retaliation claims based upon the First Amendment right to petition unless their ‘petitioning” in question involves a matter of public concern. A “petition” can be a grievance or lawsuit; however, a constitutional retaliation claim will arise only if the petition involves something sufficiently important to the general public. In Maner v. County of Stanislaus and Birgit Fladager 582 , a California Eastern District court held that it was not enough for an employee to show that he engaged in free speech and disciplinary actions were taken against him for misconduct. Instead the employee must show that the disciplinary actions taken against him were substantially motivated by his free speech. This matter is currently on appeal before the Ninth Circuit. 583 In Brandon v. Maricopa County 584 , a county attorney in Arizona made comments to a newspaper reporter about the settlement of a lawsuit that the attorney had handled for the county. The comments suggest that the county had made an excessive settlement offer to avoid embarrassment for certain county officials who potentially would have been deposed. The attorney was quoted as saying: “I don’t know why they did what they did, and I’m sure they have their reasons.” The attorney was later fired, allegedly because of an altercation at work.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 177