6th Circuit rejects special-ed teacher’s retaliation claim

Wednesday, May 19, 2010

A federal appeals court panel has found that a former special-education teacher in Michigan had no First Amendment right to complain about the size of her teaching caseload.

On May 17, the unanimous three-judge panel said that Susan M. Fox merely engaged in unprotected employee speech when she complained to her supervisors and was not speaking as a citizen on a matter of public concern.

The 6th U.S. Circuit Court of Appeals opinion in Fox v. Traverse City Area Public School Board of Education shows the continuing reach of the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos, in which the majority found that public employees have no First Amendment right when they engage in speech related to their job duties. The opinion in Fox also highlights a legal issue that has divided the federal appeals courts and may need to be resolved by the Supreme Court.

Fox worked as a special-ed teacher for Blair Elementary School in Traverse City during the 2005-'06 and 2006-'07 school years. In February 2007, school officials notified Fox that they would not renew her contract. They alleged that Fox had numerous performance deficiencies, including failing to complete required student reports, delegating too much authority to her teaching assistants and making inappropriate medical recommendations for her students.

Fox countered that the real reason her contract wasn’t renewed was because she had voiced concerns to the school principal and special-education director that the size of her teaching caseload exceeded the legal limit.

The teacher sued in federal court, contending she was not re-hired in retaliation for her complaints. A federal district judge dismissed her suit, citing the Supreme Court’s decision in Garcetti: “It’s hard for me to see, frankly, a clearer case of Garcetti applying in the context of a public employee’s speech,” U.S. District Judge Richard Jonker wrote.

On appeal, the 6th Circuit affirmed Jonker’s ruling. Judge Martha Craig Daughtrey, writing for the 6th Circuit panel, noted that Fox made her statements to her supervisors rather than going outside the normal chain of command. “Fox’s complaints were directed solely to her supervisor, not to the general public,” Daughtrey wrote.

Daughtrey also addressed a legal issue that has sharply divided the federal appeals courts post-Garcetti — whether a public employee’s speech is job-related is a question of law for a court to decide or a mixed question of law and fact that allows a greater role for a jury. In the legal system, judges decide questions of law, while juries decide questions of fact. The difference is important, because if the Garcetti question is considered a mixed question of law and fact rather than purely a question of law, more cases will go to a jury rather than being decided solely by a judge.

Daughtrey pointed out the deep divide in the federal appeals courts, explaining that the 3rd, 7th, 8th and 9th Circuits have determined that the question is a mixed question, while the D.C., 5th and 10th Circuits have determined it is purely a question of law. She then added that the 6th Circuit also has determined in prior cases that the Garcetti job-related speech question is a question of law.

However, Daughtrey also noted that this circuit split was “ultimately irrelevant” to Fox’s case because it was clear from the record that she spoke as an employee, not a citizen. “Even if the question were purely a question of fact … the district court properly granted summary judgment because the factual record presents no genuine issue for trial,” Daughtrey wrote.

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