The Sixth Circuit Rules on Public Employee First Amendment Rights

On May 11, 2017, the United States Court of Appeals for the Sixth Circuit, which hears appeals from federal district courts in Tennessee, Kentucky, Michigan, and Ohio, issued its opinion in Mayhew v. Town of Smyrna, Tennessee, which focused on a public employee’s First Amendment free speech rights.

The Plaintiff was the lab supervisor for Smyrna’s wastewater treatment plant. His work duties included ensuring that the plant met governmental regulations and quality-control standards. The Plaintiff reported to the plant manager that one of the supervisors was engaging in questionable conduct regarding water sample evaluations and hindering the Plaintiff’s ability to perform his work duties. Eventually, the supervisor was promoted to plant manager and, after different dialogues, including the Plaintiff complaining about the promotion process and a meeting about the Plaintiff’s ability and willingness to work with the new plant manager, the Plaintiff’s employment was terminated. The Plaintiff filed a Tennessee Public Protection Act claim, which was eventually refiled in Tennessee state court, and a First Amendment claim, which the district court ruled on in favor of the Defendant pursuant to summary judgment and the Sixth Circuit reviewed on appeal.

The Sixth Circuit set forth the legal framework for a First Amendment free speech analysis for public employees. Three elements must be met in order for speech by a public employee to have possible First Amendment protection. The employee must: (1) speak on matters of public concern, (2) speak as a private citizen and not as an employee, and (3) have individual speech interests that outweigh the state’s interest in promoting efficient public services (Opinion, p. 6).

In Mayhew, the Plaintiff’s speech about the water testing concerns likely constituted speech regarding a matter of public concern. This speech, however, fell within the Plaintiff’s “ordinary job responsibilities” because his duty was to oversee all water-sample testing and report “situations and accidents immediately to management” (Opinion, p. 10). Therefore, the Plaintiff’s complaints about the then-supervisor’s questionable conduct regarding the water sample evaluations was not protected by the First Amendment because this speech was made in the Plaintiff’s employment capacity.

The Sixth Circuit then decided whether the Plaintiff’s complaints about the promotion process could be considered protected speech. The Court found that the Plaintiff’s complaints about the promotion of the supervisor to plant manager could constitute protected speech because the Plaintiff’s complaints referred to the supervisor’s alleged past misconduct and stated that the normal hiring procedures were not followed. Promoting someone who may have or may be engaging in misconduct in the water-safety context could constitute a matter of public concern. The Sixth Circuit mentioned in a footnote that the Defendants did not contest whether the alleged misconduct constituted a matter of public concern, the Plaintiff’s promotion process complaints were made in a private capacity, or governmental interests would outweigh private speech interests. Thus, the Sixth Circuit remanded the case to the district