From Griffin v. University of Maine System, decided Aug. 16 by Chief Judge Jon Levy (D. Me.):
Plaintiff Patricia Griffin’s employment as a [tenured] Professor of Marketing at the University of Southern Maine was terminated by the University of Maine System … in September 2021…. Griffin asserts that her termination was unlawful retaliation for her having spoken out against the University’s facemask and vaccination policies adopted in response to the COVID-19 pandemic….
On August 18, 2021, in preparation for the University’s fall semester, the Chancellor of the University of Maine System announced a mandatory mask policy (the “Policy”). On August 24, Griffin participated in a luncheon meeting via Zoom at which Cummings was a speaker. She alleges that during the event, [University President Glenn Cummings] did not wear a mask. On the same day, Griffin sent an email to the Dean of the College of Management and Human Service pertaining to the University’s recently implemented mask and vaccine policies. The email reads in pertinent part:
I first want to say how much I love teaching at [the University of Southern Maine] as well as working with such a great faculty. It really has been the highlight of my career and I owe a lot to you for sticking with me. The reason for this email is because I have been following the science, data, and evidence regarding SARS-CoV-2 and searching for anything that will support wearing a mask while indoors as well as vaccinating an entire school population as the optimal method for stopping the transmission of the virus. The reality is that my research has found no evidence to support these measures. I wanted to share the information I gathered and relied upon when making my decision regarding these mandates before the start of classes next Monday to see that my decisions are science, evidence, and data based. However, I do not want to cause any issues, especially for you, if I come to campus on Monday morning to teach my one face to face class so I wanted to give you enough time.
Griffin attached a separate letter to her email, also addressed to the Dean, summarizing the results of her research on the effectiveness of mask mandates and vaccines. She concluded the letter as follows:
In conclusion, I have followed the science, data, and evidence and cannot find any overwhelming support for the wearing of masks nor the mandating of vaccines, especially since the overall survival rate is 99.7% if infected with Covid. And finally, from a legal perspective, asking for my vaccination status is a violation of HIPAA.
My expectation is the University of Southern Maine will appreciate a faculty member who embraces critical thinking and applies both inductive and deductive reasoning rather than emotions when making decisions. I am teaching three courses this fall, two online and one face to face. I welcome any evidence you can provide to the contrary of what I have found which will convince me that my conclusions about the efficacy of wearing a mask and vaccinating an entire population are wrong.
On August 25, Griffin met with the Dean via Zoom, where she reiterated her request for data supporting the University’s Policy and vaccination requirement and asserted her view that Cummings had violated the Policy at the luncheon. Griffin alleges that she never refused to wear a mask and never stated that she would violate the Policy.
Griffin asserts that immediately following the Zoom meeting, her fall semester courses— one face-to-face class and two asynchronous online classes—were removed from the fall class list. Two days later, University administrators convened a pre-disciplinary conference at which Griffin was present and at which she reiterated her request for data supporting the Policy. The administrators allegedly told her that she would not be allowed to teach courses 100% online unless she resigned and accepted a part-time position….
On September 8, 2021, Griffin received a letter from Cummings suspending her and informing her that the University would be moving to terminate her employment. Griffin alleges that the letter falsely asserted that her email to the Dean had indicated that she refused to comply with the Policy, and that the letter included additional false assertions about her refusal to wear a mask and her intention to violate the Policy. She alleges that the letter caused her severe emotional distress and that it was sent in retaliation for her earlier communications with the Dean. University administrators scheduled a Grievance Hearing, and Griffin learned that Cummings would attend the hearing. Because she had previously filed a Human Resources complaint alleging that Cummings had created a hostile work environment, Griffin asserts that she felt intimidated by Cummings’s presence and did not feel comfortable attending the hearing. The hearing went forward in Griffin’s absence, resulting in the termination of her employment effective September 22, 2021….
The court allowed Griffin’s First Amendment case to go forward, to the extent that it sought reinstatement rather than damages (which were barred by Eleventh Amendment immunity and qualified immunity):
Griffin asserts that she engaged in protected speech when she made her requests to the Dean seeking data supporting the University’s COVID-19 policies, and that she was speaking as a citizen on a matter of public concern. Accordingly, she contends that the Defendants violated her First Amendment rights by terminating her employment in retaliation for that speech.
To establish a prima facie case of retaliation under the First Amendment, a plaintiff must show that: “(1) she engaged in protected conduct; (2) she suffered an adverse employment action; and (3) … ‘a causal nexus exists between the protected [conduct] and the adverse action.'” The “threshold inquiry” to determine whether a public employee engaged in protected speech is “whether [the employee] spoke as a citizen on a matter of public concern.” If the answer is no, the employee has no First Amendment retaliation claim. If the answer is yes, then the possibility of a First Amendment claim arises. “In order to survive a motion to dismiss, a plaintiff need not conclusively establish that her speech was made as a citizen; ‘it is sufficient that the complaint alleges facts that plausibly set forth citizen speech.'” …
“Speech involves matters of public concern ‘when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.'””The Defendants argue that Griffin’s speech “was not plausibly lodged on a matter of public concern … [but] was lodged as a complaint regarding her employer’s policy.” However, the Defendants do not meaningfully dispute that the underlying subject matter of Griffin’s speech—the COVID-19 pandemic and the response of public institutions to it—has generated significant public debate and controversy in Maine and elsewhere over the last three years. Thus, the decisive question here is the other element of the threshold inquiry: whether Griffin’s speech was made in her capacity as a public employee or as a private citizen….
For purposes of the First Amendment, public employees do not speak as citizens when they “make statements pursuant to their official duties.” …
The Supreme Court has recognized that not all speech that “simply relates to public employment or concerns information learned in the course of public employment” is deprived of First Amendment protections. This is because certain speech—for example, a public employee’s sworn testimony related to misuse of public funds—has “special value precisely because [an] employee[ ] gains[s] knowledge of matters of public concern through their employment.” Speech by public employees related to their employment holds “special value” because “[g]overnment employees are often in the best position to know what ails the agencies for which they work,” and because they “‘are uniquely qualified to comment’ on ‘matters concerning government policies that are of interest to the public at large.'”
Accordingly, the fact that the speech at issue here related to Griffin’s employment is not dispositive of whether she was speaking pursuant to her official duties as a public employee. Instead, as set forth by the First Circuit in Decotiis, several non-dispositive factors must be evaluated:
[(1)] [W]hether the employee was commissioned or paid to make the speech in question; [(2)] the subject matter of the speech; [(3)] whether the speech was made up the chain of command; [(4)] whether the employee spoke at her place of employment; [(5)] whether the speech gave objective observers the impression that the employee represented the employer when she spoke (lending it “official significance”); [(6)] whether the employee’s speech derived from special knowledge obtained during the course of her employment; and [(7)] whether there is a so-called citizen analogue to the speech.
The factors suggest that the context in which a public employee speaks bears heavily on whether the employee was speaking pursuant to her or his official job responsibilities.
As applied to the allegations of Griffin’s Amended Complaint,4 an evaluation of the first two Decotiis factors—whether the employee was commissioned or paid to make the speech in question, and the subject matter of the speech—produces a mixed result. Because Griffin was employed to teach students, and not to analyze and assess the University’s health and safety policies, her speech can fairly be treated as outside the ordinary scope of her duties and instead merely related to her duties. Viewed in this light, although Griffin’s email and letter were related to her employment at the University, that is, without more, insufficient to deprive her speech of First Amendment protections …. On the other hand, a practical inquiry into her employment duties, beyond her official job description, suggests otherwise. The subject matter of her email and letter concerned what she might do in the classroom and expressed concerns regarding the University’s internal policies and the conditions the University had imposed on her in-person teaching responsibilities, thus bearing directly on matters within the scope of her employment.
The third and fourth Decotiis factors—whether the speech was made up the chain of command, and whether the employee spoke at her place of employment—support the conclusion that Griffin’s speech was communicated in her capacity as an employee and not as private citizen. All of the speech at issue was communicated by Griffin directly up the chain of command to the Dean of the College of Management and Human Services. Further, the speech was communicated exclusively within the channels of her employment via her official work email account and at face-to-face meetings with the Dean and other university administrators…. [A] complaint or concern “made up the chain of command … is the quintessential example of speech that owes its existence to a public employee’s official responsibilities.” {I do not address the fifth factor, as there were no objective observers of Griffin’s speech.}
The sixth Decotiis factor—whether the employee’s speech is derived from special knowledge that she obtained during the course of her employment—weighs against concluding that Griffin spoke as a private citizen. Griffin does not allege that she was “uniquely qualified,” to share information about the effectiveness of mask mandates and vaccine requirements as a result of her employment, nor did she obtain special information regarding the Policy through her position. Accordingly, Griffin’s speech does not hold that “special value” of protected speech that pertains to an employee’s official responsibilities ….
The seventh Decotiis factor—whether there is a so-called citizen analogue to the speech—ultimately weighs in favor of a finding that Griffin’s speech was made outside the scope of her employment. On one hand, unlike a letter to a newspaper or other “kind[s] of activit[ies] engaged in by citizens who do not work for the government,” Griffin’s email and letter were sent directly to her superior through her University email account and pertained to her disagreement with the Policy and its impact on her face-to-face teaching conditions. Similarly, the communication that occurred during Griffin’s meeting with the Dean was plainly a private, employment-related encounter. Moreover, Griffin states in her email that she had made a “decision regarding these mandates,” from which one could fairly infer that she was informing her employer that she might not comply with the Policy based on her research.
However, at the motion to dismiss stage I must draw all reasonable inferences in Griffin’s favor. In that light, it is also possible to infer that Griffin’s “decision” represented the conclusion or conclusions she had drawn regarding the Policy and its efficacy, and not a final decision not to comply with it. The substance of Griffin’s email and letter also communicated her concerns about the University’s response to the pandemic and the efficacy of mask mandates on college campuses. Viewed in this manner, Griffin’s speech could be considered “sufficiently analogous to the speech of other citizens in the community troubled,” by facemask and vaccine policies implemented by public institutions during the COVID-19 pandemic, thus warranting a conclusion that there is a plausible citizen analogue to Griffin’s speech.
Assessing the allegations of Griffin’s Amended Complaint in relation to the Decotiis factors produces an uncertain result. However, accepting all of Griffin’s factual allegations as true, the question that I must ultimately decide at this preliminary juncture is whether the Complaint has provided “enough facts to state a claim to relief that is plausible on its face.” …
Here, Griffin has pleaded sufficient facts to make it more than merely possible that once fully developed, the facts will support the conclusion that although Griffin’s speech related to her official duties as a public employee, the subject matter of her speech pertained to a matter of great public concern and was outside the scope of her duties as a professor of marketing. Whether the same conclusion may be true after the parties have completed discovery is another matter for another day. “[I]t is entirely possible that additional facts might show” that Griffin is not entitled to the relief that she seeks, but “absent factual development, dismissal is unwarranted” at this stage….
Note that Griffin’s allegation “that she never refused to wear a mask and never stated that she would violate the Policy” seems quite central here; it wouldn’t violate the Free Speech Clause to fire her for not wearing a mask, or for refusing to wear a mask, but her claim is that she was fired simply for arguing that the policy was unsound.
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