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First Amendment Free Speech Protection May Apply to Hospital Director Fired After Complaints About Management

By Roger P. Gilson Jr.
  • October 31, 2003

A former director for an Ohio mental hospital may proceed with a lawsuit alleging her termination violated her right to free speech under the First Amendment to the U. S. Constitution. The former director was fired after criticizing the public institution about placing a psychiatrist's office in a patient unit and for not caring about quality standards, among other complaints. The U.S. Court of Appeals for the Sixth Circuit found the former employee had produced "sufficient evidence of a First Amendment retaliation claim," allowing her to proceed with the litigation.

According to the facility CEO, the former director was terminated after writing a memorandum criticizing the decision to place a doctor's office for consultations inside the patient unit, and accusing management of lacking concern over quality of care standards, among other things. The former director claimed the termination violated the constitutional right to freedom of speech. The trial court dismissed the lawsuit, finding it did not involve a matter of public concern. However, the federal appeals court disagreed, noting the focus of the memorandum was on patient care. The court read the memo as the director's attempt to call the CEO's attention to concerns about patient privacy, not as a complaint about management.

Having found the memo raised a matter of public concern, the court sought to balance the interests of the parties to decide whether the former director's speech was protected by the First Amendment. As a public employee, the director was acting as a citizen commenting upon matters of public concern. It then became necessary for the court to weigh her interest in doing so against the interests of the state mental health facility in providing public services.

In its defense, facility management asserted the memo was "disruptive, inflammatory and interfered with working relationships" at the facility. However, the federal appeals court disagreed, noting that the "memo, on its face, does not appear to be particularly inflammatory." Management presented no evidence of disruption in operations at the facility caused by the memo, nor any state interest outweighing the director's right to call attention to the quality of patient services at the hospital, the court said.

Lastly, the director had demonstrated that the memo was a motivating factor in her termination. As such, the court concluded the jury should decide whether the institution would have taken the same action were it not for the memo. Accordingly, the court ordered the case to proceed in the trial court. [Rodgers v. Banks, 6th Cir., 9/17/03).]

Editor's Note: Lawsuits claiming free speech violations and unlawful retaliation by health care employers have become increasingly common. Claims involving free speech rights under the First Amendment may only be brought against public health care institutions by public employees for whom the constitutional guarantee extends into the workplace. What conduct raises a matter of public concern triggering the constitutional guarantee is a decision for the court; determining whether management had unlawful motives for taking the adverse employment action rests with the jury. Some state constitutions, as well as specific federal and state rights laws with anti-retaliation provisions, give employees more expansive workplace protection. Such provisions may specify rights and remedies, or may form the basis for an argument that a discharge or discipline violates public policy, as demonstrated in the following case.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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