Sixth Circuit Upholds Firing of Nashville Dispatcher For Racial Slur on Facebook

The US Sixth Circuit Court of Appeals has upheld the termination of a Nashville dispatcher for the use of a racial slur in a Facebook post on election night, 2016. Danyelle Bennett was fired the Metropolitan Government of Nashville over the post she made while off duty. Due to the nature offensive the slur, balanced against the accuracy of the issues, the decision will be quoted at length verbatim:

• On the evening of November 8, 2016-Election Day – Bennett anxiously awaited the results of the Presidential election, hoping for a win by the candidate she supported, Donald Trump.
• She stayed up watching the results until about 3:00 a.m. on November 9, when the electoral votes for Trump reached 270.
• At that time, she made a Facebook post from her public-facing profile of an image of the electoral map revealing Trump as the winner.
• Shortly thereafter, before Bennett went to bed, she received a notification that Mohamed Aboulmaouahib – a man she did not know – commented on her post, writing that “Redneck states vote[d] for Trump, niggaz and latinos states vot[ed] for hillary.”
• [Bennett] replied: “Thank god we have more America loving rednecks. Red spread across all America. Even niggaz and latinos voted for trump too!”
• The following morning, Bennett was off-duty when she received a notification that her friend and former colleague had commented on her post, asking “Was the niggaz statement a joke? I don’t offend easily, I’m just really shocked to see that from you.”
• Bennett replied, and several other comments demonstrating offense to Bennett’s use of the racial slur followed.
• At approximately 3:45 p.m., after Bennett’s friend and former colleague, Tamika Barker, responded to the comment, Bennett spoke on the phone with her and, as a result, deleted the entire Facebook post.

Following an outcry from her colleagues and members of the public, Bennett was placed on administrative leave and subsequently terminated. She sued alleging that her posting was protected speech, and her termination violated the First Amendment.

At trial, the judge concluded as a matter of law that the Pickering Balancing test “weighed in Bennett’s favor”, and left the outcome to a jury, who awarded Bennett $6,500 in back pay and $18,750 for humiliation and embarrassment. Nashville filed an appeal to the Sixth Circuit.

In reversing the trial court’s Pickering ruling, the Sixth Circuit concluded that public employee speech falls into two categories for First Amendment purposes: speech warranting the “highest rung” of protection based on “the level of importance the speech has in the community,” and speech that lacks “special insight.” Quoting again from the ruling:

• The application of the Pickering balancing test is a matter of law for the court to decide and, thus, we review it de novo.
• Before applying the balancing test, it is appropriate to begin this analysis by determining the degree of protection the speech warrants, i.e., the level of importance the speech has in the community.
• Because “the state’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression,” … we first consider the context of the speech for which Metro fired Bennett.
• On appeal, Metro does not challenge the district court’s finding that the statement in question was political in nature.
• But Metro does argue that it “was not purely political” and, thus, was not entitled to the heightened level of protection the district court had granted to it.
• Bennett, on the other hand, argues that Metro’s decision to terminate her “was based on the entirety of her post-election, political comment as a whole.”
• Bennett bases her argument that she was fired for political speech on the jury’s interrogatory response indicating that Metro terminated her “for using the term ‘niggaz’ when expressing her views regarding the outcome of a national election on Facebook.”
• Though the district court similarly relied on the jury’s response, its reliance is somewhat misleading.
• The interrogatory form was presented in a multiple-choice format, and the selected answer was the only answer choice that included the actual slur.
• The alternative responses included: “For expressing her views regarding the outcome of a national election on Facebook;” “For lack of accountability;” and “For the workplace disruption her Facebook comment caused.”
• Presented with its options, it seems logical to infer that the jury believed the speech at issue was the term “niggaz” and not statements expressing Bennett’s views on the election, as selecting option one would have indicated.
• So, even though Bennett’s speech was protected, it was not in the “highest rung” of protected speech as the district court erroneously found.
• It is true that the speech in question was couched in terms of political debate, made in response to and repeating back the words of another person, and used a more casual version of an offensive slur.
• Still, Bennett’s speech does not garner the high level of protection that the district court assigned to it, and the balancing test requires less of a showing of disruption and other factors than the district court would require. See Connick, 461 U.S. at 152 (explaining that the greater extent to which the speech involves public concern, the stronger the showing of disruption necessary).
• In any event, the evidence of disruption caused by the language in Bennett’s Facebook post was substantial.
• Bennett’s post prompted a “nonstop conversation” in the office that lasted for days, and for as much as three weeks to a month after Bennett’s comment, there was a need for a counselor to address the office.
• At Bennett’s disciplinary hearing and during trial, she did not exhibit concern for her colleagues’ feelings, called them hypocrites, and indicated that she would not apologize because someone else took something the wrong way-indeed, she believed her colleagues should instead apologize to her.
• Such facts indicate that if she had returned to work at ECC, her presence would have continued or exacerbated the disharmony.
• Because Bennett’s speech does not occupy “the highest rung” of public concern, less of a showing of disruption is required. Several factors weigh heavily in favor of Metro.
• Although there are factors weighing in favor of Bennett, sufficient disruption was shown to tip the Pickering balance towards Metro.
• Based on the above analysis and in light of the discretion we must grant leadership at Metro, its interest in maintaining an effective workplace with employee harmony that serves the public efficiently outweighs Bennett’s interest in incidentally using racially offensive language in a Facebook comment.

In a footnote worth considering, the Sixth Circuit quotes from a law journal article by Leora F. Eisenstadt:

• The slur is a “speech act”-an act with meaning and consequences. In fact, when a white person uses the term “nigger,” regardless of his conscious intentions, he is making a fundamental statement about his place in the world and, by extension, the place of African Americans. The history embedded in the term (its exclusive use in the nineteenth century as an assertion of power by whites over their black slaves) combined with the race of the white speaker and black listener is akin to the speaker saying explicitly: “I reject the concept of equality, I reject your humanity, I am more powerful than you, and because of that power, I can say anything I want, and you have no recourse.” And the act has that consequence. It typically renders the targeted listeners speechless and often demoralized, and creates in them a feeling of helplessness that is met with anger, fear, or sadness.

The N-Word at Work: Contextualizing Language in the Workplace, 33 Berkeley J. Emp. & Lab. L. 299, 319-20 (2012).

Here is a copy of the ruling: