By Emily Nelson
Susan Graziosi, a sergeant of the Greenville Mississippi Police Department, alleged she was fired in retaliation for posting criticisms of her police Chief Freddie Cannon on Facebook The federal district court dismissed her free speech claim in Graziosi v. City of Greenville, finding that the Chief was justified in firing her in order to minimize disruption in the department.
In May 2012, Graziosi posted a Facebook “status update” in which she criticized GPD for failing to send a representative to the funeral of a police officer from the nearby city of Pearl, Mississippi, who was killed in the line of duty:
I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don’t want to hear about the price of gas-officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights (sic) as to not to be able to afford a trip to Pearl, Ms., which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi
Soon after posting, Graziosi was notified that she was being terminated for violating GPD’s Policy and Procedure Manual. Graziosi brought suit, alleging a wrongful termination First Amendment retaliation claim. Before determining whether Graziosi could even bring this claim however, she needed to show that she was speaking as a citizen on a matter of public concern, and not in her role as an employee.
[T]o determine whether the First Amendment protects the employee’s speech, a court proceeds to the balancing test established by the Supreme Court in Pickering v. Board of Education. The Pickering test inquires whether the interest of the government employer ‘in promoting the efficiency of the public services it performs through its employees’ outweighs the employee’s interests, as a citizen, ‘in commenting upon matters of public concern.
Despite the fact that “Graziosi’s posting was not related to any official duty she had as a police officer,” the district court found that Graziosi’s speech “was made as an employee of the GPD and not a citizen of the Greenville community,” and as such she could not bring a First Amendment retaliation claim:
In her posts, Graziosi speaks as an employee and uses words such as “we” and “our” to identify herself as a member of the Greenville Police Department. She also writes about the particular things the chief said regarding the funeral issue and her being amazed “everytime (sic) I walk into the door [of the police department].”… Ms. Graziosi did not speak out about any issue that related to the public safety or trust they had in the GPD but rather an internal decision of the department.
Further, the court noted that Graziosi’s “limited First Amendment interest does not require Chief Cannon to ‘tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.’” In other words, GPD’s interest in maintaining order and efficiency in its office would outweigh Graziosi’s First Amendment interest even if the court had found that she was speaking as a citizen on a matter of public concern.
Editor’s Note (Jim Cline): The public employee “free speech” case law is conflicted and complex. The key to speech being protected or not, relates to whether, as this court indicated, it touches on a matter of “public concern.” Although the public might have some passing interest in this incident, this incident appears primarily to be a workplace dispute that the employee decided to make public on Facebook.
There are some takeaways for you and your members. No, posting on Facebook to your “friends” is not solely private communication outside the reach of department discipline. (For discipline purposes, the context of a comment might matter, but that doesn’t completely insulate it from scrutiny). Also, the fact that your complaints about your Chief are made off duty doesn’t make them the protected speech of a private citizen. Speech about work is work related. Work related speech will be subject to workplace speech regulations, whether or not the statements are made during the duty day.
The only issue before the court here was the First Amendment issue. Had this case arisen under a “just cause” claim before an arbitrator, the complete context of these statements likely would have led to the discharge not being sustained.
