Internal Grievance Procedure May Give Rise To Discipline Of Employee Without Special Burden of Justification By The Government Employer

Two employees from Virginia Department of Corrections (VDOC) filed 42 U.S.C. §1983 civil rights claims in the United States District Court for the Western District of Virginia alleging retaliation by their supervisor for exercising their First Amendment Right in the course of lodging employment complaints with the VDOC’s Equal Employment Opportunity Office (EEOO). The district court dismissed the complaint as barred under the doctrine of res judicata, holding that: “the VDOC and defendants were in privity during the employment dispute resolution proceedings.” The Fourth Circuit, on appeal, reversed the determination and allowed the claims to proceed. On remand the district court concluded that the “threshold question” of showing that the plaintiffs’ complaint before the EEOO addressed a matter of public concern had not been satisfied and therefore granted summary judgment for the defendants. The plaintiffs appealed.

Relying on Supreme Court precedent, the Fourth Circuit held it was undisputed that public employees may not constitutionally be compelled to relinquish their First Amendment Right to comment on matters of public interest. The Supreme Court stressed “the need for an employee to be speaking as a citizen on matters of public concern was not accidental, but rather sets the boundaries of what speech is protected in the public employment setting”

To implement the holding of the Supreme Court, the Fourth Circuit adopted a three-part test to determine whether a public employee has stated a First Amendment claim for allegations of retaliatory discharge. First, the court must consider whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest. When addressing matters of public concern, the Supreme Court directs the lower courts to consider the “content, form, and context of a given statement. To determine the protected status of the employee’s speech, the lower courts are directed to scrutinize the comments, assessing whether they are intended “to evaluate the performance of the office” – which would merit constitutional protection – or merely “to gather ammunition for another round of controversy” with superiors, which would not be protected.

Second, even if the employee spoke upon a matter of public concern, the court must further determine whether the employee’s interest in speaking upon the matter of public concern outweighed the governments’ interest in managing the work environment. Therefore, personal grievances, such as complaints about conditions of employment, do not constitute speech about matters of public concern that are protected by the First Amendment.

Finally, if the employee’s claim satisfies both of these legal criteria, the court then turns to the factual question of whether the employee’s speech was a substantial factor in the employee’s termination. It was against this backdrop that the Fourth District held that the personal character of the suit cannot be disputed in this case and that First Amendment claims demand more. Therefore, in recognition of “the Governments’ interest in the effective and efficient fulfillment of its responsibilities to the public, the court has to respect the line the Supreme Court has drawn. And plaintiffs’ grievances in this case clearly fall on the private side of that line. See: Brooks v. Arthur, 685 F.3d 367 (4th Cir. Va. 2012).

Related legal case