Fall 2012
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The Public Manager

Speaking Out in the Workplace

Saturday, September 15, 2012

Although public employees retain the right of free speech in the workplace, that speech must be outside the scope of their official duties and must regard some legitimate public concern.

Public sector employees do not check the constitutional right of free speech at the door when they enter public service. According to the Supreme Court, a public employer cannot infringe on constitutionally protected rights as a condition of employment. In the course of their employment, employees who speak out on waste, fraud, abuse, or illegal activity and then face retaliation as a result are protected from retaliation by 42 U.S.C. § 1983.

Signed into law in 1871 to combat the adverse treatment of African Americans following the Civil War, Section 1983 creates a private cause of action for those who are deprived of their constitutional rights under the color of state law. Over the years Section 1983 has been used as a tool to protect public sector employees who are deprived of a constitutional right, such as free speech, by their employers.

Both public sector managers and employees should be aware of Section 1983's ramifications. Employers should appreciate the consequences of the statute to avoid potential liability, and employees should know when their speech is protected and what redress is available in the event of retaliation. Section 1983 jurisprudence is far too vast to completely address here, so I will focus on what is considered protected speech and who can be sued, as well as the implications of liability.

Claims Under Section 1983

The federal courts require a Section 1983 claim to include:

  1. that an employee speaks on a matter of legitimate public concern
  2. that the employee speaks as citizen, not as a public employee
  3. that the employer takes an adverse action against the employee as a result of the employee's protected speech, such as termination or demotion.

The first element—that an employee's speech is on a matter of legitimate public concern—may seem a bit amorphous, but it is easily fulfilled in most cases. Speech regarding a matter of legitimate public concern is speech designed to bring a breach of the public trust or wrongdoing to the attention of the public.
Matters such as the misappropriation of public funds, waste, fraud, and inefficient management have qualified as matters of legitimate public concern. An employee speaking on a matter that he reasonably believes is illegal or fraudulent is within the protections of the statute provided the other elements are met.

Speaking as a Citizen

Employees must not only speak on matters of legitimate public concern; they also must speak as citizens. Although an employee still retains free speech rights, not all speech is protected. The courts are reluctant to deprive government employers of all control over their employees' conduct in the workplace.

Public employers cannot provide efficient management and distribution of public services if they have no control over employees. Obviously, a government office cannot operate efficiently if every employment decision runs afoul of the constitution. To strike a balance between protecting legitimate constitutional speech and efficient government operation, the courts have required that employees must speak as a citizen to qualify for Section 1983's protections.

In 2006 the Supreme Court clarified what it means to speak as a citizen in the seminal case of Garcetti v. Ceballos. Distilling the Supreme Court's opinion down to its ultimate holding, an employee must speak outside the scope of her official job duties. When the Supreme Court considered the facts of the case the focus of its analysis was whether the plaintiff's speech was in furtherance of his job duties. The fact that the plaintiff's official job duties specifically required him to investigate and report on the very issue his speech involved meant that he was speaking as a public employee, not as a citizen.

The Supreme Court's holding may appear cut and dry, but a fact specific case-by-case analysis is necessary to determine if an employee is speaking as a citizen or not. This analysis can turn on specific and seemingly minute details, but the more an employee speaks outside of regular reporting channels or goes beyond her official job description, the more likely she will be speaking as citizen, not as an employee.

Who Can Be Liable Under Section 1983?

There are constitutional limitations on who can be held liable under Section 1983. The 11th Amendment of the Constitution prohibits a citizen from bringing suit against a state and state agencies in federal court. For the purposes of the 11th Amendment, state agencies are usually viewed as a state's alter ego and therefore enjoy the same protections as the state itself. For example, courts have found that in certain circumstances such state agencies as police departments and universities are immune from suit under Section 1983. However, local municipalities are not generally considered alter egos of the state and can be sued under Section 1983.

Public managers also can be sued under certain circumstances. If an aggrieved employee attempts to sue his manager in her official capacity, then that manager will likely enjoy immunity. A suit against managers, who were acting in their official capacities, is not really a suit against the individual. Rather, it is a suit against the manager's office and therefore simply synonymous with the state.

However, public managers are not completely immune. Managers can still be sued under two different, but similar theories. First, managers can be sued in their official capacities for prospective relief. Prospective relief, often referred to as equitable relief, is an order from the court that will place the employee back in a position as though the retaliation never occurred.


Courts have incredibly broad powers to fashion nonmonetary relief to remedy the harm an employee suffered. Usually this will take the form of reinstating the employee to his job. Second, managers and supervisors can be sued in their personal capacities. In such cases, managers are acting as individuals, not as representatives of the state. Managers' personal assets are therefore vulnerable if they are held liable.

Because public sector managers can be sued in their individual capacities, this raises concerns about the employee's ability to obtain a full recovery from the manager and the manager's ability to pay court-awarded damages. Public employers can indemnify managers who are found liable under Section 1983. Indemnification is available based on individual state laws, so whether managers are indemnified will vary based on the state. Federal courts applying federal law have found repeatedly that there is no inherent right of indemnification for federal employees.

Available Remedies

Section 1983 offers a broad array of relief. Primarily a successful plaintiff is awarded compensatory damages. This is a monetary award designed to place the employee in the same position as if the retaliation never occurred, often calculated by the salary and value of the benefits lost from the time of termination, offset by any salary from new employment, to the date of judgment. This is often described as "making the plaintiff whole."

In certain circumstances punitive damages are available when a defendant's actions are reckless, callously indifferent to the rights of the employee, or if the defendant was motivated by some evil intent. These damages are designed to punish a defendant for his unlawful conduct and to deter similar conduct in the future. Juries are free to award punitive damages even if the plaintiff has very little or no actual monetary damages. So an employer who blatantly retaliates against an employee for engaging in protected speech can face significant financial liability even if the retaliation does not result in a financial loss.

Plaintiffs have access to equitable remedies that allow the court to order action to ensure that justice is satisfied. In the employment context a court can order an employer to reinstate the employee and even require the employer to place the employee under a different supervisor to avoid further retaliation. In lieu of reinstatement, a court can award front pay, which is a sum of money equal to future lost income resulting from the termination.

Public employers should be aware that taking an adverse action against an employee for speaking on matters of public concern in the workplace can result in significant liability, and they may or may not be indemnified by their employer. In addition, employees should be aware that although they retain the right of free speech in the workplace, that speech must be outside the scope of their official duties and must regard some legitimate public concern.

Respecting and understanding Section 1983's protections will result in more efficient government service free from retaliation.

About the Author

R. Scott Oswald is the managing principal at The Employment Law Group law firm in Washington, D.C., where he litigates whistleblower retaliation and other employment related actions on behalf of employees.

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