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canstockphoto33998951Election season is upon us and talk about our favorite candidates and issues often bleeds into the workplace.  One recent federal opinion out of the Fifth Circuit Court of Appeals sheds some light on an employee’s First Amendment rights related to speech about elections.  In Dearman v. Stone County School District, 832 F.3d 577 (5th Cir. 2016), a teacher sued her Mississippi School District, claiming that the nonrenewal of her teaching contract was in retaliation for expressing her First Amendment support for a candidate for school superintendent.

The record showed that, while serving as a guidance counselor, Dearman openly supported fellow Stone County Middle School teacher, James Nightengale, in his candidacy for superintendent.  Nightengale’s bid was unsuccessful and a new superintendent, Gwen Miller, took over.  According to the suit, Dearman and several other teachers who had supported their fellow teacher were reassigned to different schools.  Dearman was assigned to an elementary school.

During the school year, the District’s Special Education Director, visited Dearman’s office and noticed a folder that contained a student’s individualized education program for one of Nightengale’s special education students.  Dearman was not authorized to have that information.  Dearman informed school officials, including Superintendent Miller, that she had the folder, at the request of Nightengale, to make sure Nightengale had filled out the special education paperwork properly.  She also admitted to using Nightengale’s login and password to access a confidential education profile on the District’s database.  Miller later notified Dearman that she was suspended with pay and that Miller was recommending Dearman’s termination for violating the Family Education Rights and Privacy Act (FERPA) and the Individuals with Disabilities Education Act (IDEA).  The notice of termination was later withdrawn and Dearman was, instead, given notice that her contract would not be renewed at the end of its one-year term.  Dearman’s request for a hearing was deemed to be untimely, and the nonrenewal became final.

Dearman filed suit, claiming that she was terminated for exercising her First Amendment free speech rights stemming from Nightengale’s campaign against Miller.  The trial court granted a pretrial judgment against Dearman and she appealed.  To prove a First Amendment retaliation claim, Dearman had to show that (1) she suffered an adverse employment action, (2) her speech involved a matter of public concern, (3) her interest in commenting on matters of public concern outweighs the employer’s interest in promoting efficiency, and (4) her speech motivated the adverse employment decision.

The main issues in this case were whether Dearman engaged in protected conduct and that it was a motivating factor in her discharge.  The appeals court concluded that Dearman failed to produce sufficient evidence showing that her nonrenewal was motivated by retaliatory animus.  Most telling was the fact that Dearman could not produce any evidence that Miller had any knowledge of Dearman’s support for her colleague’s failed campaign.  Dearman’s evidence that she and others had been warned by another employee not to openly support Nightengale’s campaign was not evidence of retaliatory animus on the part of Miller.  According to the Court, because Dearman failed to establish that her protected speech was the cause of her discharge, she could not maintain a First Amendment claim.  The bottom line is, open support of a political candidate can give rise to First Amendment protections.  However, to prevail in a First Amendment lawsuit, an employee has to show that adverse action was motivated or substantially caused by the protected speech.  Dearman simply didn’t have enough evidence to make that showing in this case.

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