In Nichols v. Dancer (9th Cir., Sept. 15, 2011, 10-15359) 2011 WL 4090676, the Ninth Circuit held that under the Pickering balancing test, employers must prove an employee's speech causes workplace disruption to justify subjecting an employee to an adverse employment action. Following the Fifth Circuit, the Court rejected the employer's claim that it is sufficient to merely assert a potential disruption.
Kathleen Nichols worked in the General Counsel's office of the Washoe County School District. She went to a school board meeting about whether her boss would be fired and sat next to him during the meeting. When she returned to work, a manager told her there were questions about her loyalty to the District. The manager told Nichols that she could remain in Human Resources, where her salary would be frozen, or take early retirement. She opted for the latter and sued for a violation of her First Amendment rights.
The case turns on whether Ms. Nichols' conduct caused sufficient interruption to trigger the employer's right to preserve workplace efficiency. Balancing Nichols' rights against workplace efficiency is part of the Pickering balancing test, the analytic framework used by courts to evaluate public employee free speech claims. In this case, the District asserted Nichols' association with her former boss met its burden under the test. The Court rejected that claim.
The Court explained "engaging in Pickering balancing is not like performing rational basis review, where we uphold government action as long as there is some imaginable legitimate basis for it." (Id. quoting Kinney v. Weaver (5th Cir. 2004) 367 F.3d 337, 363.) The Court went on to explain, "An employer may not interfere with an employee's First Amendment rights unless there is evidence that the employee's actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough. In the face of Pickering, the “because I said so” approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption." (Id.)
Kathleen Nichols worked in the General Counsel's office of the Washoe County School District. She went to a school board meeting about whether her boss would be fired and sat next to him during the meeting. When she returned to work, a manager told her there were questions about her loyalty to the District. The manager told Nichols that she could remain in Human Resources, where her salary would be frozen, or take early retirement. She opted for the latter and sued for a violation of her First Amendment rights.
The case turns on whether Ms. Nichols' conduct caused sufficient interruption to trigger the employer's right to preserve workplace efficiency. Balancing Nichols' rights against workplace efficiency is part of the Pickering balancing test, the analytic framework used by courts to evaluate public employee free speech claims. In this case, the District asserted Nichols' association with her former boss met its burden under the test. The Court rejected that claim.
The Court explained "engaging in Pickering balancing is not like performing rational basis review, where we uphold government action as long as there is some imaginable legitimate basis for it." (Id. quoting Kinney v. Weaver (5th Cir. 2004) 367 F.3d 337, 363.) The Court went on to explain, "An employer may not interfere with an employee's First Amendment rights unless there is evidence that the employee's actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough. In the face of Pickering, the “because I said so” approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption." (Id.)
