Seventh Circuit Finds the First Amendment Did not Protect Employees Complaints About Their Supervisor – Pre-Employ.com

The U.S. Court of Appeals for the Seventh Circuit has ruled that an employees criticism of their supervisor for alleged misconduct is not protected under the First Amendment.

In this case, the plaintiff was employed as a customer service representative in the clerk-treasurers office in Bargersville, Indiana. The plaintiffs duties included collecting bills and setting up payment plans for utility customers. In late 2017, the plaintiff found that a wealthy resident of the area had failed to make utility payments and had the customers services disconnected.

Soon after, the decision was countermanded by the clerk-treasurer who had services reconnected after business hours. The plaintiff felt that the clerk-treasurers decision was influenced because the resident was a prominent figure in the area and because the two were business partners.

The plaintiff confronted the clerk-treasurer over the matter and stated that she believed all customers should receive uniform treatment no matter their wealth and status. Soon afterward, her duties were shifted away from handling disconnections in favor of more general customer service functions. Approximately five months later, the plaintiff made a mistake in handling fee collections that resulted in the town losing the opportunity to collect approximately $1,000 in fees. The clerk-treasurer fired the plaintiff soon afterward.

The plaintiff filed a lawsuit against both the town and the clerk-treasurer, alleging that she was fired in retaliation for exercising her right to free speech under the First Amendment by confronting the clerk-treasurer over the decision to reconnect the prominent residents utilities. The trial court acknowledged that the first amendment protects the right of a public employee to, in particular circumstances, speak of matters of concern as a citizen.

However, the court also found that in the time in which the criticism took place, the plaintiffs job duties included handling utility disconnections. As a result, criticizing the clerk-treasurer for their handling of utility disconnections amounted to a complaint within the plaintiffs area of responsibility and was not protected by the constitution.

Further, the court noted that even if the complaint was constitutionally protected, there was still insufficient evidence to show that the issue was a motivating factor in the dismissal. There was a five-month gap between the plaintiffs complaint and the termination, which the court noted was too distant to establish a causal link between the incidents.

In response, the plaintiff argues that the timeframe should be measured from the point of the criticism to the point in which the clerk-treasurer decided to fire her, which would reduce the timeframe to only three months. However, the court found that the relevant measure to consider in judging whether or not the timing is suspicious would be between the protected speech and the actual adverse employment action, not the decision process preceding it. Further, the court noted, based on court precedent, even the three-month time frame would not be enough.

This case demonstrates the importance of properly documenting employee misconduct, including performance reviews. These can provide significant protection against claims of wrongdoing in cases where adverse action is necessary.

Pre-employ offers free resources to help you stay compliant in your hiring practices. Check out our guide on 5 Tips To Avoid FCRA Non-Compliance to keep your company up-to-date.

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Seventh Circuit Finds the First Amendment Did not Protect Employees Complaints About Their Supervisor - Pre-Employ.com