Vice principal fired after cooking up protest can get day in court

Wednesday, July 18, 2012

While grilling hot dogs might not send the same message as burning bras, the summer tradition — at least according to one court — may be entitled to First Amendment protection.

In Corbett v. Duerring, a federal judge in West Virginia held in May that a former high school vice principal can proceed to trial on his claim that a school district violated his First Amendment rights when it terminated him. Among the speech the administrator asserts is protected is a hot-dog cookout he staged near the district’s headquarters.

Peter Corbett’s problems with the Kanawha County Board of Education began in October 1999, when Superintendent Ronald Duerring summoned Corbett to his office to discuss discipline Corbett had imposed against certain students. During this meeting, Duerring allegedly urged Corbett to “make deals with people on the hill,” which Corbett interpreted as a directive to give preferential treatment to students who lived in Charleston’s affluent South Hills neighborhood.

According to Corbett, these problems simmered until April 20, 2007, when he was supervising a group of low-income students who were grilling hot dogs in the school’s parking lot. Corbett and the students held the cookout despite the principal’s order that, for safety reasons related to the Columbine anniversary, the outside of the building be closed.

Corbett claimed that he did not understand the order to prohibit supervised activities outside, but the principal nevertheless reprimanded him and sought additional discipline against him. In June 2007, a hearing officer recommended that Corbett be suspended without pay for a day. The school board, however, rejected that recommendation and suspended Corbett for five days without pay. In his lawsuit, Corbett claims the board would have imposed the shorter suspension if the children involved had been affluent.

In late November 2007, while serving his suspension, Corbett grilled and sold hot dogs outside the district’s headquarters. Corbett claimed the cookout was a protest intended to call attention to the school’s unequal treatment of students and mistreatment of administrators who refused to comply with the district’s unfair practices. Several news outlets covered Corbett’s protest, and the public’s reaction to the cookout and the coverage indicated some support for Corbett’s position.

Within days, Duerring suspended Corbett with pay pending further investigation and review. Corbett’s actions, Duerring wrote, demonstrated “contempt and disrespect” for the board and administration and undermined their “status, prestige, and authority.” Duerring added that “since these actions and statements relate solely to your status as an employee of Kanawha County Schools and do not relate to matters of general public concern, they are not protected by the First Amendment.”

Duerring’s months-long investigation of Corbett culminated in a lengthy list of charges, including insubordination related to the two cookouts. After a hearing, the school board terminated Corbett in September 2008.

Corbett then sued, alleging that Duerring and the district unlawfully terminated him in retaliation for the hot-dog protest. In March 2012, the defendants moved for summary judgment, claiming that neither the law nor the undisputed facts supported Corbett’s suit.

U.S. District Judge John Copenhaver denied the defendants’ motion on May 21. In his ruling, Copenhaver relied on the 4th U.S. Circuit Court of Appeals’ 1998 decision in McVey v. Stacy. In that case, the court held that a public employee seeking to prove that he was retaliated against for exercising his First Amendment rights must establish that: (1) he was speaking as a citizen (rather than as an employee) on a matter of public concern; (2) his interest in the expression outweighed the employer’s interest in providing effective service and (3) the adverse employment action was motivated in significant part by the protected speech.

In Corbett’s case, the key inquiry was whether Corbett was speaking as a citizen about a matter of public concern. Since the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos — in which the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes” — most employees have lost retaliation claims, as courts have defined “official duties” broadly. Copenhaver, however, held that Corbett’s hot-dog protest was not conducted pursuant to any duty “commissioned or created” by the district and therefore constituted private speech.

Copenhaver then ruled that whether the speech was about a matter of public concern is a factual issue to be decided by the jury. Copenhaver noted, however, that Corbett had produced sufficient evidence to support his theory that his hot-dog protest was symbolic speech protected by the First Amendment.

As to the second prong of the McVey analysis, Copenhaver held that a jury reasonably could conclude that Corbett’s interest in his speech outweighed the district’s interest in providing effective services. The cookout’s interference with school activities was “minimal,” Copenhaver said, pointing to the facts that it occurred during Corbett’s suspension, off school grounds and away from Corbett’s co-workers and students.

Copenhaver held that the jury also could find in Corbett’s favor on the third prong, rejecting the defendants’ argument that Corbett could not establish causation because he never explicitly communicated to the district “the precise matters of public concern he was protesting.”

“[T]he fact that Corbett did not nail a list of grievances to the Board’s door does not mean defendants were unaware that his message touched on matters of public concern,” Copenhaver wrote, noting that several news outlets covered the cookout. “Not only do these articles discuss the matters of public concern about which Corbett protested, but reader comments make clear that Corbett’s message regarding student safety was well-understood by those who read the stories. Inasmuch as these articles and comments appeared in prominent Charleston newspapers and on popular websites, it could be concluded that defendants saw, read, and comprehended Corbett’s message as well.”

Moreover, Copenhaver held, the defendants could not defeat Corbett’s claim simply by professing ignorance of Corbett’s message.

“[I]f this alone were a defense to a First Amendment retaliation claim,” Copenhaver wrote, “all defendants in symbolic speech cases could win summary judgment simply by claiming that they did not grasp the message the plaintiff intended to convey.”

Copenhaver’s decision, of course, is not a complete victory for Corbett, as Corbett still must persuade a jury of the merits of his claim. The decision, however, is both a reaffirmation that public employees can prevail after Garcetti and a reminder that symbolic speech — even when it involves something as simple as hot dogs — cannot be ignored.

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