STATE-BY-STATE ROUNDUP - Massachusetts – District Court Reaffirms Public Employers’ Right to Discipline Employees Who Make Unacceptable Statements
 
October 8, 2007
 

In a recent decision, the United States District Court for the District of Massachusetts ruled that public employers may discipline employees who make comments that do not touch on matters of public concern. Jordan, et al. v. Carter, 494 F.Supp.2d 72 (D. Mass. 2007).

In Jordan, two former Massachusetts Bay Transportation Authority (MBTA) police officers brought a First Amendment claim against the MBTA after they were disciplined for making negative comments about the MBTA Chief of Police and other officers during recorded telephone conversations over the MBTA’s phone lines. The disciplined officers argued that their comments were speech protected by the First Amendment because they were public employees discussing matters of public concern.

To receive protection under the First Amendment, the officers had to show: (1) that their statements involved matters of public concern; (2) that their interest and the public’s interest in making the statements outweighed the MBTA’s interest in promoting workplace efficiency; and (3) that the statements were a substantial or motivating factor in the MBTA’s decision to discipline the employees. If the officers had been able to establish all three of these factors, the MBTA would have been required to prove that it would have reached the same disciplinary decision even if the officers had not made the protected statements. The District Court concluded the officers could not meet their burden, and granted summary judgment to the MBTA.

The Jordan Court concluded that the statements made by the former employees related to decisions made and actions taken by the Chief of Police and other superiors that primarily affected the internal workings of the MBTA Police Department rather than matters of public concern. Although the officers argued that their statements were made in response to media coverage of a shooting at an MBTA station and the Police Department’s involvement in that incident, the Court found that none of the comments suggested any intent on the part of the officers to contribute to public discourse. Instead, the Court stated that the comments were “[nothing] more than barracks talk and griping and sniping about internal workings of the Department.” The Court held that the discussions among the officers were not intended to inform the public about issues with the Department that were of public concern, and therefore did not involve matters worthy of First Amendment protection. The Court also held that the second factor – balancing the interests of the officers and the public against the interests of the Department – weighed in favor of the Department. In this regard, the Court stated, “[T]he importance of discipline and harmony is greater in the realm of a law enforcement agency than in other government entities.”

The Jordan decision reaffirms the right of public employers to discipline employees who make unacceptable statements about the internal workings of their workplaces. When such statements are limited to internal matters and threaten to affect the efficient workings of the employer, discipline is an appropriate response.

The author of this article, Maura Gerhart, a former associate at Holland & Knight, is now an in-house counsel at Harvard Pilgrim Health.

For more information, email Miriam McKendall at miriam.mckendall@hklaw.com or call toll free, 1-888-688-8500.

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