Pornography and Public Employment: Further Implications of Garcetti

scales.gifHaving just returned from speaking at a great conference hosted by the First Amendment Law Review at UNC on all things Garcetti, it is interesting to see many of the various issues discussed there come to the fore in a recent case, Davis v. McKinney, No. 07-20184 (5th Cir. Feb. 21, 2008), decided by the Fifth Circuit this past Thursday. For the uninitiated, Garcetti v. Ceballos (U.S. 2006) is the watershed public employment free speech case that drastically cut down on public employees First Amendment expression rights while such employees are working pursuant to their official duties.

In Davis, here are the interesting background facts:

Davis filed this suit against the above named defendants and the several arms of the University of Texas (“UT”) System. Prior to December 2003, Davis was the IS Audit Manager at the UT Health Science Center in Houston, Texas (“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing computer-related audits and creating audit summaries and reports. Defendant McKinney is the Senior Executive Vice-President and Chief Operating officer of UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and System-wide Compliance Officer . . . .

[After applying for a promotion, Davis was involved in an audit investigation of physicians’ computers.] Davis engaged IT Security and Information Service departments for assistance in confiscating computers from UT personnel. Eleven computers were identified that were believed to have intentionally accessed pornography. After further investigation, evidence in ten of the eleven computers strongly indicated that pornography had been intentionally accessed, including some material that Davis believed to be child pornography . . . .

Davis asked Corum [her direct supervisor] to be taken off the investigation because she felt it created a hostile work environment and the requirement that she review repugnant pornographic material denigrated her as a woman. Davis felt that she was receiving “heat” from other employees and that management was unresponsive to the findings of the inquiry.

Thereafter, Davis was given mundane tasks and she faced continuing harassment from those employees and supervisors who did not want her to continue with her investigation. She therefore sent an internal complaint letter regarding the “unethical and illegal” activity directed at her and alleged, “that upper management had a pattern of sweeping pornography investigations under the rug and not terminating or disciplining offending employees.” In this same letter, Davis wrote that, “because she was no longer confident that the UT System could investigate itself, she had contacted the Federal Bureau of Investigation concerning possible child pornography on eight computers and the EEOC about discriminatory practices.” This last action to go whistle blower would turn out to be crucial.


The UT System eventually decided not to fill the job that Davis sought promotion into and she also claimed retaliation. Davis later quit, alleging that she had been constructively discharged and now suffered from depression.

What makes a case like this so fascinating (at least to employment law geeks like myself) is that without the public employment angle, this would be a fairly (sorry to say), run-of-the-mill Title VII discrimination and retaliation case. But because these events transpired in the public workplace, Davis alleged that her employer violated her First Amendment free speech rights by retaliating against her for speaking out on matters of public concern.

And this is where Garcetti changes everything. Rather than starting with whether what Davis complained about was a private personnel matter or a matter of public concern (which was the threshold question under Connick v. Myers (U.S. 1983), Garcetti now requires at the threshold that it be determined whether the employee was acting pursuant to her professional duties or merely speaking as a citizen. This inquiry is not merely about the job title one has, but what functions one actually carries out. There is also much controversy in these case where the employee is an investigator of some sort and the question is whether she is merely performing her job or going beyond her normal job functions by reporting misconduct by others in the organization (for those of you familiar with SOX whistle blowing cases, all this might ring a bell).

Even if you are lucky enough to get by summary judgment on the liability issues in a public employee case like Davis did (few employees do: in 2007, employees lost 21 out of 26 of these cases on the appellate level and many more on the district level), there are still complicated issues of qualified immunity since this is a civil rights case brought under Section 1983 (at least for state and local employees; federal employees go through an even more arcane and more difficult framework).

In Davis, not only did the appellate court review the very unusual pro-employee findings that the employee spoke as a citizen, not as an employee it making her complaint, but as an interlocutory appeal, also examined the issue of whether the individual defendants should be granted qualified immunity. The standard is whether the officials’ conduct was “objectively reasonable in light of clearly established law at the time of the incident.”

The problem for public employee plaintiffs here is that nothing under Garcetti is really “clearly established.” To the court’s credit and as about twelve different speakers agreed at the First Amendment Law Review Symposium this past week, “Garcetti changed this [public employee free speech] analysis in ways not yet fully determined.” Nevertheless, the court was able to point to an emerging principle that,

Cases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job . . . .

If however a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.

In other words, it appears that the Garcetti question is beginning to turn on whether one is an internal or external whistle blower (which incidentally is how some states define the scope of their own whistle blowing statutes). In any event, under this analysis, Davis was considered an external whistle blower for some of her statements because she also complained to the FBI and the EEOC. But Davis still has a very long road ahead of her if she is ultimately to prevail: on remand, she must be still show she was speaking on matters of public concern, that her First Amendment interests outweighed her employer’s efficiency interests (the Pickering balancing test), that her employer would not have made the same decision absent this protected conduct (Mt. Healthy test), and that it was not objectively reasonable for the defendant officials to take the actions they did given what were then the clearly established constitutional rights. Phew! It is amazing any one even bothers to bring this type of complaint.

The lingering question is whether this development in the law of public employee constitutional rights is a good one. I think not. Employees are being given an incentive to air the dirty laundry of their public employers for all to see in order to gain constitutional protection. This makes no sense and is counter to other areas of employment law (see sexual harassment law cases like Faragher) in which employees are required to first exhaust internal procedures with their employer before filing an external complaint. Yet, in the Garcetti situation, there is no exhaustion requirement (the court recognizes in footnote 3 that, “it is not dispositive that a public employee’s statements are made internally.”), so one might as well just go directly outside of one’s employer to gain additional protection. This state of affairs leads to a waste of judicial resources on unnecessary litigation that might have been nipped in the bud if the employee just simply complained internally.

None of this is surely an enviable position for any plaintiff who is not merely seeking to vindicate a private interest in getting his or her job back, but is also seeking to vindicate a public interest in holding public employers accountable to the citizens they are supposed to be serving.

Hat Tip: Elaine Mittleman

You may also like...

5 Responses

  1. Howard Wasserman says:

    Suppose she had been fired just off her refusal, grounded in First Amendment and/or Equal Protection ideas, to participate in the audit? Or suppose she had been demoted after that refusal? Any Title VII and/or First Amendment claim then?

  2. Paul says:

    As far as the First Amendment, if she were fired for just refusing to participate in the audit (either because she had privacy concerns for the physicians or did not want to view pornographic material), I think that might be more seen as insubordination and she would probably lose because her “speech” would be either as viewed as an employee pursuant to official duties (per Garcetti) or at the very least speech on a matter of private interest, not public concern (per Connick).

    Equal Protection? No fundamental right involved, so you would either have to show that the government classification was not substantially related to an important government end (unlikely) or you would have to go the “class of one” route and I think the Supreme Court is well on its way to say that that theory is not available in employment cases in the Enquist case in which the Court just granted cert.

    Demotion vs. constructive discharge probably doesn’t make a whole lot of difference under the First Amendment as Garcetti itself involved a demotion for disagreeing with a supervisor’s decision.

    As far as Title VII on demotion, a demotion is still an adverse employment action under all circuit precedent for sexual harassment, discrimination, and retaliation cases (though there is a broader standard for retaliation adverse employment actions after the Burlington Northern case). If she in fact was discriminated, harassed and/or retaliated against and was demoted, she could have a cognizable claim under Title VII.

  3. Howard Wasserman says:

    Your last point is what I was trying to get at: Is it “harassment” to make her look at pornography that is on a computer she is auditing as part of her job?

  4. Paul says:

    Harassment is not the issue in the First Amendment context. There, the issue is whether her speech was non-official capacity speech on a matter of public concern.

    As far as Title VII sexual harassment, the conduct would have to be severe or pervasive (not sure this conduct would qualify), subjectively and objectively harassing (maybe being generous), and “because of” sex. I think this last element might be hardest to prove, especially if similarly-situated male employees were also assigned to the same audit.

    The 9th Circuit employs something called the “reasonable woman” standard when it comes to sex harassment, but we’re not in the 9th Cir. (far from it) and it still doesn’t help with the causation inquiry noted above.

  5. Hans Bader says:

    I don’t really see much of a harassment case here.

    The Fifth Circuit expressly rejected the Ninth Circuit’s “reasonable woman” standard for sexual harassment cases, in favor of a gender-blind “reasonable person” standard, in DeAngelis v. El Paso Municipal Police Officers Ass’n, 51 F.3d 591 (5th Cir. 1995).

    So the plaintiff had no right to dump the unpleasant task of reviewing the porn on her male co-workers.

    Moreover, the Supreme Court cast doubt on whether exposure to sexual speech that is relevant to your job can qualify as sexual harassment in Clark County v. Breeden (2002), saying that the fact that your job requires you to view sexual material weighs not just against the claim that viewing it harasses you, but also even against your claiming to have a reasonable belief that it constitutes harassment.

    (The Breeden case rejected the claim that the female plaintiff had a Title VII retaliation claim for complaining about an instance of exposure to such material).

    And in Butler v. Ysleta Ind. Sch. Dist. (5th Cir. 1998), the Fifth Circuit said that the fact that you were repeatedly exposed to sexually offensive material isn’t usually enough where it was aimed at you based on your gender.

    Here, there’s no proof that the plaintiff wouldn’t have been asked to do the unpleasant task had she been male rather than female, is there?