Public Sector Case Notes
| Publication year | 2016 |
| Author | By Stewart Weinberg |
By Stewart Weinberg
Stewart Weinberg, a 1960 graduate of Boalt Hall, is a shareholder of Weinberg, Roger & Rosenfeld in Alameda, a union-side labor law firm. Mr. Weinberg specializes in the representation of unions and employees in the public sector.
Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255 (9th Cir. 2016)
Tristan Coomes was a teacher in the Edmonds School District and managed the school's Emotional/Behavioral Disorders Program. Ms. Coomes had disagreements with her supervisors concerning the "main-streaming" of students in her program (i.e., placing special education students into regular classes). Her union sent an email to the district complaining about Coomes' treatment by her immediate supervisor. The immediate supervisor informed district management that Coomes' statements were false. The following school year, even more students were mainstreamed than previously. Her manager gave Coomes a negative evaluation. Coomes became distraught and went on medical leave and finally resigned. She then filed a lawsuit claiming that she was constructively wrongfully terminated. The trial court granted the district's motion for summary judgment and the court of appeal affirmed. The court of appeal noted that public employees do not surrender all of their First Amendment rights by reason oftheir employment, citing Garcetti v. Ceballos.1 It added, however, "while the First Amendment invests public employees with certain rights, it does not empower them to 'constitutionalize the employee grievance."'2
The appellate court relied upon a five-part test set out in Eng v. Cooley.3 The test is as follows: (1) the plaintiff bears the burden of proof of showing that she spoke on a matter of public concern; (2) she spoke as a private citizen rather than a public employee; and (3) the speech was a substantial or motivating factor in the adverse employment action. If the plaintiff establishes this prima facie case, the burden shifts to the government to show that: (4) the state had an adequate justification for treating the employee differently from other members of the general public; and (5) the state would have taken the adverse employment action even absent the protected speech. In Dahlia v. Rodriguez,4 it was held that all five factors are independently necessary.
In the instant case, the issue of whether Coomes spoke as a private citizen or as a public employee was the critical issue. The First Amendment does not protect speech by public employees that is made pursuant to their employment responsibilities, no matter how much a matter of public concern is involved.5 In Lane v. Franks,6 the Supreme Court stated that the "mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee - rather than citizen - speech."7 The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. To the extent that Coomes' speech was within the scope of her employment duties, it was not protected by the First Amendment. The employer has the burden of showing that the employee spoke as a public employee, or that she lacked sufficient evidence to establish that she had spoken as a private citizen. The district demonstrated that under Coomes' formal job description, her complaints to her supervisors occurred in her role as a teacher and that she referred to herself as a teacher and employee when she communicated those complaints to her superiors. Thus, because Coomes' speech was within the scope of her duties, it was not protected by the First Amendment.
El Dorado Cnty. Deputy Sheriff's Ass'n v. County of El Dorado, 244 Cal. App. 4th 950 (2016)
The County of El Dorado deleted several vacant positions from its law enforcement bargaining unit. Simultaneously, it created a new classification which it placed in a general bargaining unit...
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