Discussion of the Mohammed Cartoons Not “Speech Involv[ing] Matters of Public Interest or Concern”?

Today’s Kentucky Court of Appeals decision in Mendez v. Univ. of Kentucky Bd. of Trustees contained an odd bit of analysis that I thought I’d mention. Here’s the fact pattern:

The precipitating event leading up to the cessation of [Fullmer] Mendez’s employment at the College of Health Sciences occurred on March 27, 2006. One morning he was assigned to work on the computer of Dr. Susan Effgen, a professor at the College. She had experienced repeated problems with her computer. After looking at the computer, Mendez decided that he could not fix it until the next day. He informed her and went to lunch. When he returned from lunch, [Bambang] Sutardjo, as his supervisor, asked about the repair of the computer. After Mendez told him that the computer would not be fixed until the next day, Sutardjo told him to finish the work on the computer now because Mendez did not have the authority to determine turnaround time. Mendez replied that he was not trying to create new policy. Then, Sutardjo said he did not want Mendez to work in the department any longer.

But Mendez proffers a different reason for his dismissal. He maintains that the reason for his termination was not based on his failure to work on Effgen’s computer in a timely fashion, but rather, his termination resulted from a disagreement with Sutardjo, which Mendez believes was the cause of his termination. The parties’ religious backgrounds are as follows: Mendez was born and raised Catholic, and Sutardjo was a member of the Islamic religion. Mendez knew Sutardjo’s religion because at one time he had been invited to Sutardjo’s home for dinner at the conclusion of Ramadan. Sutardjo intimated that while he was not sure of Mendez’s religious beliefs, he thought that he was Christian or Catholic.

According to Mendez’s testimony, although he does not cite to the record in providing these details, a few weeks before his assignment ended, Sutardjo and Dr. Maria Boosalis, the Director of the Department of Clinical Nutrition, were having a discussion concerning the publication of cartoons about the prophet Mohammed in the Danish press, and the protests in Europe that occurred after the publication of the cartoons. Mendez claims that Sutardjo asked his opinion about it. Mendez says that he responded that the Danish press was free to publish what they wished. Mendez then describes Sutardjo as being upset during the conversation, but he acknowledged that no mention of either party’s religion was made, nor did either party attack the other during the conversation. After the discussion, again without citation to the record, Mendez stated that the relationship between them soured, and their interactions were only about business. Yet, Sutardjo did not increase Mendez’s workload, although he required Mendez to complete his work assignments within a strict time period. Mendez, however, did not find the requirement to be unreasonable.

Now there’s obviously a factual dispute as to the motivation for Mendez’s firing, and it may well be that he was fired for reasons quite unrelated to the discussion of the cartoons. (Recall the following cautionary joke sometimes said among us Jews: A Jew goes to an interview for a job as a radio announcer. Later in the day, a friend asks whether he got the job; the interviewee shakes his head. “Why not?,” the friend asks. “An-an-an-ti-se-se-se-mitism,” the man responds.) And it’s also possible that Mendez’s claims, brought not under 42 U.S.C. § 1983 — which is generally used for claims that the plaintiff was fired because of his First-Amendment-protected speech — but under Kentucky’s tort of wrongful discharge in violation of public policy, would be legal losers. The court suggests this might be so, though its analysis is not entirely clear.

But what puzzles me is this passage:

["]In order to state a retaliation claim under the First Amendment … a public employee plaintiff must demonstrate that the speech involved matters of public interest or concern. Second, the plaintiff must show that her interest in addressing these matters of public concern outweighs the interest of her employer ‘in promoting the efficiency of the public services it performs through its employees.’”

Mendez has not provided any support that the conversation, the nature of which is disputed, was constitutionally protected, or that it caused an adverse employment action, or even that it was a substantial and motivating factor in his termination. This factor is bolstered even more by the fact that he has not shown that the conversation in question concerned matters of public interest or that the interest in addressing these matters outweighs the interest of his employer in providing public service through its employees….

It seems to me quite clear that a discussion of the Mohammed cartoons, and the protests surrounding them, “concern[s] matters of public interest” and is thus potentially protected by the First Amendment against employer retaliation. (Recall that speech on matters of purely private concern is generally protected against the government as sovereign, but not against the government as employer.) By way of comparison, see Rankin v. McPherson (1987), which held that an employee’s saying to a coworker, right after hearing that President Reagan had been shot, that “If they go for him again, I hope they get him,” is speech on a matter of public concern. To be presumptively protected against government employer retaliation, speech needn’t be said to the public at large, nor need it be expressly political in nature. Discussions of public issues with coworkers qualify for presumptive constitutional protection (unless they’re said pursuant to the coworkers’ duties, which this wasn’t), though this presumption could be rebutted under the “Pickering balancing test” if the tendency of the speech to disrupt the workplace exceeds its constitutional value.

So I think the court of appeals was wrong to express doubt on this score. Again, perhaps Mendez should lose at trial on his claim, or perhaps there’s some other legal reason why he shouldn’t even get to trial. But the claim that Mendez “has not shown that the conversation in question concerned matters of public interest” strikes me as unsound — the articulation of the conversation, as Mendez reports it to be, strikes me as sufficient on that score.

Note that I don’t read the court’s statement that “the nature of [the conversation] is disputed” as meaning that Mendez loses because it’s not clear what, as a factual matter, was said. At this stage of the case — where the court is reviewing the trial court’s grant of summary judgment to the university — the court needs to assume that the facts as claimed by Mendez are accurate.