383 F. Supp. 3d 790
M.D. Tenn.2019Background
- Bennett worked 15 years as a dispatcher for the Metropolitan Government of Nashville; the Department permits annual "Super Hero/Villain Day" with relaxed dress code.
- On April 13, 2016 Bennett wore a pro-Trump "Make America Great Again" sweatshirt; supervisors twice asked her to remove it after coworker complaints; no discipline followed.
- On November 9, 2016 Bennett replied to a public Facebook post about the presidential election using the racial slur variant "niggaz" in a post that identified her as a Department employee; five coworkers and a member of the public complained.
- The Department investigated, placed Bennett on administrative leave, held a disciplinary hearing, and terminated her for conduct reflecting discredit on the Department and "conduct unbecoming."
- Bennett sued under 42 U.S.C. § 1983 (First Amendment), the Tennessee Constitution, and the Fourteenth Amendment (Equal Protection and Due Process). Cross-motions for summary judgment were filed: Bennett sought partial summary judgment on the sweatshirt claim; Defendant sought summary judgment on most claims including the Facebook-post First Amendment claim.
- Court denied Bennett's partial summary judgment on the sweatshirt claim; granted summary judgment for Defendant on Tennessee constitutional, Equal Protection (Engquist), and Due Process (lack of standing for declaratory relief) claims; denied summary judgment for Defendant on the First Amendment claim arising from the Facebook post (held the speech was protected and Pickering balancing favored Bennett).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asking Bennett to remove Trump sweatshirt was adverse action for First Amendment retaliation | Bennett: removal request + threat of insubordination/discipline was retaliation and adverse action | Metro: request was not an adverse employment action; Bennett lacked standing for some policy challenges | Court: Genuine dispute of material fact exists; plaintiff's motion denied because removal alone, without discipline, may be inconsequential; no summary judgment for Bennett |
| Whether Facebook post (including racial slur) was constitutionally protected speech | Bennett: post concerned election (public concern), made as private citizen; protected even considering the slur in context | Metro: termination was justified by use of slur and harmful conduct, not protected speech; slur alone defeated First Amendment protection | Court: Post treated in context; speech touched on public concern, made as private citizen; Pickering balancing tilts modestly to Bennett — Metro not entitled to summary judgment on this claim |
| Whether termination was motivated substantially by protected speech (causation) | Bennett: entire post (including political content) was motivating factor; cannot sever protected parts | Metro: termination was due to racial slur and lack of accountability, not political speech | Court: Because the post must be considered in context and protected, Metro cannot separate out parts; causation issue remains; summary judgment for Metro denied on § 1983 claim |
| Whether Bennett may obtain declaratory relief under Tennessee Constitution or challenge social-media policy / due process | Bennett sought declaratory relief under state constitution and challenged policy as vague/overbroad | Metro: no private damages remedy under state constitution; former-employee lacks standing for declaratory relief | Court: Dismissed Tennessee-constitutional claim (no private damages) and dismissed due-process / declaratory claim for lack of Article III standing because Bennett is no longer an employee and the relief would not redress an ongoing injury |
Key Cases Cited
- Rankin v. McPherson, 483 U.S. 378 (1987) (court must view employee speech in context when determining First Amendment protection)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing employee's speech interest against government employer's efficiency interest)
- Connick v. Myers, 461 U.S. 138 (1983) (public-employee speech must concern matters of public concern to be protected)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (distinguishes speech pursuant to official duties from private-citizen speech)
- Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008) (class-of-one equal protection theory not available in public employment context)
- Scarbrough v. Morgan County Board of Education, 470 F.3d 250 (6th Cir. 2006) (courts should be cautious when employer seeks to penalize employees for disruption that results directly from protected speech)
- Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003) (employer must show actual adverse impact or interference to overcome employee's speech interest)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (political expression on public issues rests high in First Amendment hierarchy)
- McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985) (expression of racist views can still receive First Amendment protection)
- Downing v. West Haven Board of Education, 162 F. Supp. 2d 19 (D. Conn. 2001) (asking teacher to cover attire without discipline did not constitute adverse employment action for retaliation claim)