IMLA Amicus Brief Quoted in Sixth Circuit Public Employer Victory

IMLA Amicus Brief Quoted in Sixth Circuit Public Employer Victory

Today, in a great victory for the City of Nashville and IMLA, the Sixth Circuit decided that Nashville did not violate the First Amendment when it fired a 9-11 dispatcher who used a racially offensive slur in the context of the 2016 election in a public Facebook post that identified her as an employee of the City.  The parties all agreed that her post was on a matter of public concern given the broader context of the election even though it used a racial slur.  The City argued on appeal that the district court failed to properly weigh the Pickering factors and the Sixth Circuit agreed, explaining that the City had shown substantial disruption in the workplace “to tip the Pickering balance towards” it.  The district court, according to the Sixth Circuit, had erroneously discounted the importance of harmonious relationships, particularly given the nature of the work the 9-11 operators did.

The court also emphasized that the City should be afforded discretion to maintain “an effective workplace with employee harmony that serves the public effectively,” which outweighed “the employee’s interest in incidentally using racially offensive language in a Facebook post.”  The decision walked through the discord in the workplace, including many complaints from employees both to management and their union representatives as a result of the offensive Facebook post.

There was also evidence of a complaint from a member of the public.  The district court concluded that while there was some evidence that the employee’s comment would undermine the mission of the agency, it provided that the weight of this factor was “relatively slight.”  The Sixth Circuit disagreed, concluding that her “comment detracted from the mission of ECC, weighing again in favor of [the City] and noting that “[w]hen someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.”

IMLA’s amicus brief emphasized that the public safety employer may reasonably anticipate that racially charged, derogatory speech threatens its relationship with the public and our brief was quoted in the decision on this point and relied on elsewhere.

Finally, the Sixth Circuit emphasizes the hurtful nature of the use of this particular racial slur and criticized the district court for characterizing the employee’s use of the word “niggaz” as “the mere use of a single word”, noting the “use of the term “evok[es] a history of racial violence, brutality, and subordination.”  The court then went on to point out that the use of the term, even once, could lead to the erosion of public trust.

A big thanks to our amicus authors: Robert Hagemann, Stephanie Gumm, Colin McGrath, and Joanna King with the firm Poyner Spruill for drafting our brief.   A link to the decision can be found here.