By Robert Margolis, J.D.
The court finds speech on behalf of a union was not preclusive of finding the teacher spoke as a private citizen.
A federal district court in Rhode Island has denied the Tiverton School District’s motion to dismiss claims by a teacher and president of the local teachers’ union alleging she was suspended and ultimately terminated in retaliation for seeking union involvement in the district’s COVID-19 distance learning planning (Mullen v. Tiverton School District, September 29, 2020, McConnell, J., Jr.).
Teacher, union president. The employee was a special education teacher in the district for more than 25 years and president of the local teachers’ union. The union is the exclusive bargaining agent for district teachers, so the district must bargain with the union over all terms and conditions of the teachers’ employment.
COVID-19 plan. In March 2020, when COVID-19 caused school districts in Rhode Island to plan for possible school closures and remote learning, the employee learned that the district’s school superintendent was developing a distance learning plan. The employee, as union president, sought to bargain with the superintendent over any such plan. He responded that he would not negotiate, and she could “file a grievance.”
Planning meeting. When days later she learned the superintendent was holding a meeting to discuss his distance learning plan, the employee attempted to attend the meeting. She advised the superintendent that the union should be part of the discussions about any distance-learning plan. The superintendent raised his voice, told the employee she was not invited to the meeting and that he would write her up for insubordination if she did not leave.
Administrative leave. She left the meeting, after which the superintendent placed her on administrative leave pending an investigation. He also directed her to cease and desist from all communication with parents, students, school committee members, and district staff members, telling her failure to comply would be considered insubordination leading to further disciplinary action.
Further discipline, termination. Later, he advised the employee by letter that he intended to recommend suspension without pay for the remainder of the school year, and termination thereafter, due to her “persistent disruption and insubordination” particularly related to the COVID-19 distance learning plan. The district’s school committee unanimously voted to fire the employee from her teaching position based on the conduct outlined in the superintendent’s letter. Though she already had been terminated, the superintendent sent a second letter to her, advising that he would recommend her termination and adding as reasons her violation of the gag order against her by emailing teachers about distance learning and commenting about educational issues in a Facebook group. The school committee voted again to suspend and terminate the employee, based on the superintendent’s recommendations in the second letter.
The employee and union sued the district for First Amendment retaliation for exercising freedom of speech, First Amendment retaliation for exercising freedom of association, and violations of Rhode Island’s Open Meetings Act. The district moved to dismiss all three claims.
Employee’s capacity. Noting that a public employee speaking pursuant to official duties, rather than as a private citizen, is not insulated from an adverse employment action, the court looked at several factors to determine the capacity in which the employee’s speech was made. It highlighted several that favored finding she was speaking as a private citizen. The district did not pay her to engage in the speech in question and no observer would conclude that she was representing the district when she spoke. To the extent the communications were made to the superintendent rather than the public, they were made in the employee’s role as union president, not as an employee, the court concluded.
She spoke not as a teacher assessing the merits of any plan, but as a union president seeking union involvement in the process. The court rejected the employer’s argument that speaking as union president precludes a finding that an employee is speaking as a private citizen, citing other courts that have held that the adversarial nature of labor negotiations suggests contexts where a union official could not possibly have been speaking as part of official employment duties.
Public concern. Having found sufficient allegations that the employee was speaking as a private citizen, the court next concluded that the district’s COVID-19 plan was a matter “of great public concern.”
Interest balance. The court next balanced the district’s interests and the employee’s free speech rights and again held that the employee alleged sufficient facts for this consideration to weigh in her favor. The development of a distance learning plan is a matter of great public concern and the employee was seeking union involvement. The district’s interest in silencing her did not outweigh the importance of letting a veteran teacher and union president seek to ensure teacher representation in planning discussions, the court concluded. She made her comments in appropriate contexts and in a minimally disruptive fashion, the court further reasoned.
Motivating factor. Similarly, the employee alleged sufficient facts to show that her protected speech was a motivating factor in her suspension and termination. The superintendent’s second letter listed five reasons for his recommendation of suspension and termination, two of which were the employee’s attempt to engage the district in union bargaining over the distance learning plan. The court also pointed out that while the letter identified the employee’s Facebook post as violating the gag order that she not speak to district staff or the school community, the post was made to a public forum from a personal Facebook account and gave no indication that she was speaking as a teacher or district representative (or that it went out to anyone in the school community).
Association. The reasons above tying the adverse employment action to the employee’s speech on behalf of union involvement in the distance learning planning process also tied the adverse employment action to the employee’s constitutionally-protected association with the union, the court concluded. She specifically identified herself as speaking on behalf of the union and sought to attend the planning meeting as union president, leading to the gag order, suspension, and ultimately termination. The court found the gag order and termination “undermined her capacity to serve her union membership.” These actions barred her from meetings and from discussing topics relevant to union members. Finally, the court found this claim was not duplicative of the free speech claim.
No immunity. The court rejected the argument that school committee members had qualified immunity and could not be sued in their individual capacities. The free speech and association rights allegedly violated were sufficiently “clear and established” to defeat a qualified immunity claim, particularly since they voted for the adverse employment actions based on a letter from the superintendent that on its face stated he was recommending those actions due to the employee’s speech and associational activities.
Monell claim. Finally, because under Rhode Island law a school committee is given final authority for the management of all public school interests, the employee stated a Monell claim that the town may be liable for the constitutional violations against her, the court held.
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