Public Employee Expression Law Under the Colorado and Federal Constitutions

• Publication year: 2005
• Pages: 77

34 Colo.Law. 77 Colorado Bar Journal 2005.

2005, April, Pg. 77. Public Employee Expression Law Under the Colorado and Federal Constitutions

---

77

Vol. 34, No. 4, Pg. 77

The Colorado Lawyer
April 2005
Vol. 34, No. 4 [Page 77]

Specialty Law Columns
Labor and Employment Review
Public Employee Expression Law Under the Colorado and Federal Constitutions
by J. Michael McGuinness

This column is sponsored by the CBA Labor Law Forum Committee to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado

Column Editor

John M. Husband of Holland & Hart LLP in Denver - (303) 295-8228,
jhusband@hollandhart.com

About The Author

This month's article was written by J. Michael McGuinness, an attorney licensed in North Carolina, Massachusetts, and the District of Columbia. McGuinness practices and teaches constitutional, civil rights, and employment law. He maintains a satellite office in Denver for consulting purposes - (303) 296-3292, jmichael@mcguinnesslaw.com,
http://www.mcguinnesslaw.com.

Public sector workplaces in Colorado and throughout the United States employ public servants who frequently engage in expression both on and off duty, which may stir management to respond with discipline. Employee expression can present a variety of perplexing public employment liability issues under the First Amendment and under Article II, § 10 of the Colorado Constitution. One such issue involves determining when employee expression is protected and when it may constitute grounds for discipline. Public employment litigation involving First Amendment retaliation claims are among the most frequently litigated civil rights cases.1

The constitutional rights of public employees and the obligations of public employers in Colorado are ill-defined in the area of employee expression because of the case-by-case application of several methodological tests. The public concern, interest balancing, and causation tests determine whether speaking public employees are protected or subject to discipline. Recent cases demonstrate uncertainty over the extent that public employees are able to criticize their employers and speak out on a range of issues. However, several leading authorities, including Colorado appellate courts and the U.S. Court of Appeals for the Tenth Circuit, frame the parameters of permissible public employee expression.

Currently, the First Amendment rights of public employees are being widely debated in Colorado and throughout the United States in a dispute involving University of Colorado ("CU") Professor Ward Churchill.2 In an essay regarding the September 11, 2001 terrorist attacks, Churchill made denigrating statements regarding the victims.3

Churchill's remarks set off a national firestorm.4 The Colorado General Assembly passed a resolution denouncing him.5 Governor Bill Owens weighed in and called for Churchill's termination of employment.6 CU's Interim Chancellor ordered a review of Churchill's writings and speeches. These governmental actions raise serious implications about Churchill's constitutional rights to off-duty expression.

This article explores issues that are at the heart of the Churchill debate. It discusses the basic principles of constitutional employee expression cases and reviews important cases in the area. Such cases have been decided by the U.S. Supreme Court, Colorado appellate courts, and Tenth Circuit.

Public Employee
Rights of Expression

In general, a public employee may not be adversely treated because of his or her expression on any matter of public concern, unless the public employer's interest in the efficient fulfillment of its responsibilities outweighs the employee's interest in free expression.7 Colorado and the Tenth Circuit generally are in accord with traditional public expression principles.8

A public employee may be able to recover for retaliation following his or her exercise of the right to expression. In such instances, the employee must establish that: (1) the expression qualified as protected speech or activity; and (2) such protected speech or activity was a substantial or motivating cause of the adverse action or had a chilling effect on employee expression.

In Fikes v. City of Daphne,9 the Eleventh Circuit recognized a free speech claim whereby the employee reported misconduct to law enforcement authorities. The four-part test announced in Fikes has been used in Colorado as well.10 (See accompanying box, "Four-Part Fikes Test.")

Four-Part Fikes Test

In Fikes v. City of Daphne, 79 F.3d 1079 (11th Cir. 1996), the Eleventh Circuit enumerated a four-part test to evaluate a public employee's free speech claim.

1. Matter of Public Concern: Was the expression a matter of public concern?
2. Constitutional Interest Balancing Test: If the speech was not a matter of public concern, do the governmental employer's interests outweigh the employee's interests? In this test, the employee and employer interests are analyzed and balanced by the court as a matter of law. The court will consider: (a) whether the expression impeded the employer's ability to perform its duties; (b) the time, place, and manner of the speech; and (c) the context of the speech.
3. Causation: Was the speech a "substantial or motivating factor" in the adverse action or did it have a chilling affect against the employee?
4. "Anyway" Defense: Would the governmental employer have reached the same decision in the absence of the employee's speech or protected conduct?

Speech as Substantial or
Motivating Factor

After an employee's speech (or activity) is deemed protected, he or she also must establish that the protected speech (or activity) was a substantial or motivating factor in the adverse employment action.11 Unlike the public concern question, the substantial or motivating factor issue is a question of causation to be decided by the jury.12 Circumstantial evidence is sufficient to establish proof of motivation and causation.13

Proof that "exercise of protected expression was a substantial and motivating factor can be shown by close proximity in time between the exercised First Amendment rights and retaliatory action."14 This general rule is supported by scores of cases.15

In Ware v. Unified School District,16 the Tenth Circuit reversed the district court's decision, setting aside an employee's verdict after being discharged for speaking out on a school bond issue. The court rejected the district court's conclusion that the employee's evidence was insufficient as a matter of law because it was subjective.17

Circumstantial evidence and reasonable inferences necessarily involve subjective elements. (See "Circumstantial Evidence Showing Proof of Motivation and Causation" in the accompanying box.) Only rarely can direct evidence of improper motive be captured. Most civil rights claims are ultimately premised on indirect or circumstantial evidence.18 Invidious discriminatory or improper intent "may often be inferred from the totality of the relevant facts."19 The U.S. Supreme Court has held that a plaintiff need not submit "direct evidence of discriminatory intent."20

Moreover, it is not necessary to prove that the challenged decision rested solely on an improper or discriminatory purpose.21 It must be established that an improper or discriminatory purpose was a motivating factor involved, although it need not be the dominant or primary purpose.22 The doctrine of inferred intent is the primary means by which employees typically survive summary judgment.23 A 1995 Fifth Circuit case demonstrates the essence of the causation principle:

[D]irect evidence in proving illegitimate intent is not required to avoid summary judgment in unconstitutional retaliation claims; circumstantial evidence will suffice . We recognize that direct...