Waters v. Churchill

Petitioners
Cynthia Waters, Kathleen Davis
Respondent
Cheryl Churchill
Petitioners' Claim
That a public hospital employee's speech is not protected by the First Amendment when it disrupts the operational effectiveness and efficiency of the facility.
Chief Lawyer for Petitioners
Lawrence A. Marison
Chief Lawyer for Respondent
John J. Bisbee
Justices for the Court
Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor (writing for theCourt), William H. Rehnquist, Antonin Scalia, David H. Souter, Clarence Thomas
Justices Dissenting
Harry A. Blackmun, John Paul Stevens
Place
Washington, D.C.
Date of Decision
31 May 1994
Decision
Upheld the hospital's claim and overturned a lower court's decision prohibiting the hospital from firing an employee based on what was thought to have been said.
Significance
The ruling established that the government as an employer can restrict its employees' speech under certain conditions, but the public employer must conduct a sufficient investigation before taking action. To avoid violating the First Amendment, the employer must establish a "reasonable belief" that the contested comments were either disruptive to the effectiveness and efficiency ofthe agency's operation or were not related to a topic of public interest. Left undefined were the investigative procedures an employer should follow in establishing that belief thus introducing greater uncertainty in an agency's accountability for personnel actions.
At dinner break in January of 1987 while on duty at McDonough District Hospital, a public hospital, nurses Cheryl Churchill and Melanie Perkins-Graham discussed work. Churchill worked in obstetrics and Perkins-Graham was considering a transfer to that department. A fellow worker, Mary Lou Ballew, overheardthe discussion and, displeased with Churchill's remarks, relayed what she thought she heard to Cynthia Waters, Churchill's supervisor. Ballew claimed Churchill bitterly described an unfavorable work environment in obstetrics, blamed Waters and the hospital's vice president of nursing, Kathleen Davis, for the situation, and cited irreconcilable differences with Waters. The comments apparently led Perkins-Graham not to pursue the transfer.
When approached, Churchill provided a different version of her remarks. She claimed her comments focused primarily on certain training practices of the hospital that could possibly have lowered the quality of nursing care. Two other fellow workers who also overheard the discussion agreed with Churchill's account. Churchill claimed Ballew was biased against her due to a previous incident. Waters and Davis conducted several inquiries before firing Churchill for what they believed was said. Churchill filed a formal internal complaint with the hospital administration. The complaint was rejected following an interview and review of reports prepared by Waters and Davis. Churchill then filedsuit claiming violation of her First Amendment rights to freedom of speech.
The Supreme Court previously provided guidance to lower courts for cases involving public employees' speech restrictions. The Court found in Pickeringv. Board of Education (1968) that government can restrict its employees'speech to a greater extent than private citizens. The Court ruled disciplinary action against a public employee for speech "violates the First Amendment only if it is in retaliation for the employee's speech on a matter of public concern." Later in 1983, the Court developed a test in Connick v. Myersto better determine when a public employee may be appropriately disciplinedor discharged for their speech. Essentially, the Court ruled that a public employee's speech is protected by the First Amendment if it is about a subjectof public concern and not disruptive to the efficiency and effectiveness of an agency achieving its goals. The balancing test involved weighing interestsin agency efficiency, employee performance, and workplace harmony against theemployee's First Amendment rights.
In applying the Connick test, the U.S. District Court ruled in 1991 against Churchill claiming that neither version of the conversation was a matter of public concern, and, even if so, the disruption from her behavior erasedany constitutional protection. The following year, the U.S. Court of Appealsreversed the district court's decision. By accepting Churchill's version ofthe conversation, the court found it a matter of public interest and not disruptive. Possible violations of state nursing regulations and the quality of nursing care at the hospital were matters of public interest. The court concluded that employee action should be based on what was actually said as determined by a jury trial, not what the employer thought was said. The U.S. SupremeCourt accepted the case in 1993 to resolve the conflict between the two lower courts.
A Reasonable Belief
In Waters, the Court first had to determine whether to apply the Connick test to what the employer thought Churchill said, or what a jury might determine was said. Justice O'Connor, writing for the majority, found that the "Connick test should be applied to what the government employerreasonably thought was said," not what a jury might ultimately determine. O'Connor wrote that a government supervisor must be able to make personnel decisions based on common employment factors, such as past conduct, what others have to say, people's believability, and other factors not normally a part of acourt process. The court of appeals, in referring the case to a jury trial,did not adequately consider "the government's interest in efficient employment decision making." Therefore, the employer should not be required to followcommon court procedure, but use more standard employment decision making processes without fear of lawsuit. O'Connor cautioned though that the decision-maker must reach their conclusion in good faith and not in some predetermined biased manner.
O'Connor then introduced a new requirement for making personnel decisions. She wrote the Court must have some means in assessing the "reasonableness of the employer's conclusions." The answer was that the employer must conduct an adequate investigation to establish a "reasonable belief" that the speech violated the First Amendment. So, if Waters and Davis truly believed Ballew's version and conducted an investigation to substantiate the facts, then they acted appropriately. Such an investigation need not be exhaustive. As stated by O'Connor, "Management can spend only so much of their time on any one employment decision." The Court found the investigation conducted by the hospital administration sufficient to establish a reasonable belief.
O'Connor further wrote that Churchill's speech, as reported by Ballew, was not of public interest, and, even if it were, the potential disruptiveness wassufficient to warrant personnel action. O'Connor considered discouraging an employee from seeking a transfer sufficiently disruptive to outweigh any FirstAmendment protection. In addition, Churchill's complaining threatened management's authority and her statements of irreconcilableness established doubt as to her future effectiveness as a nurse at the hospital. Even if part of Churchill's speech regarding training procedures was of public interest, the other speech regarding hospital administration decisions was not and that was sufficient for disciplinary action. The Connick test need only be applied to that part of the speech of public interest. O'Connor wrote, "An employeewho makes an unprotected statement is not immunized from discipline by the fact that this statement is surrounded by protected statements." O'Connor directed the lower court to determine if Churchill was fired for the disruptive speech she made about hospital administration, or for some non-disruptive speech concerning training procedures.
Justice Scalia, joined by Kennedy and Thomas, concurred with the basic judgement of the majority but sharply differed on one key point. Scalia wrote thatthe employer should not be required to conduct an investigation before takingdisciplinary action. This "right to an investigation" inappropriately creates for the employee "a broad new First Amendment right to an investigation before dismissal for speech." In effect, this decision changed the employer's responsibility from avoidance of retaliation motives, as directed in Pickering, to an ill-defined procedural responsibility. Scalia asserted no previous Court findings justified such a ruling.
She Said She Said
With Justice Blackmun joining in dissent, Justice Stevens wrote that the hospital should not be able to take disciplinary action based on what they thought was said. Blackmun wrote that public "agencies are often the site of sharpdifferences . . . When those who work together disagree, reports of speech are often skewed." Blackmun believed the majority opinion inappropriately favored "discipline, rather than further discussion, when such disputes arise." Hebelieved the court of appeals requiring a trial to determine what was actually spoken should be pursued if the hospital could not resolve the issue without disciplinary action. Otherwise, public employees may not be able to "express their views on issues of public concern without fear of discipline or termination." Misconceptions by the employer should not be sufficient cause for violating an employee's First Amendment rights.
Impact
The basic concern of the Court in Waters was the relationship betweenthe government and its employees in regard to regulation of their speech andhow it differs from government regulation of private citizens' free speech. As the Court recognized, various laws require agencies to accomplish specifictasks. Employees are hired "to help with those tasks as effectively and efficiently as possible." As a result, public employers have considerable flexibility to limit its employees' speech. When an employee deviates by speaking outdisruptively, even on matters of public concern, the public employer must have some ability to correct the situation. The Court in Waters established a "reasonableness" test to protect employers who must take disciplinary actions.
Throughout history, the Court has held that a different relationship exists between the government and its employees than with private citizens. O'Connorwrote that in "many situations . . . the government must be able to restrictits employees' speech." Examples include offensive speech to the public or fellow employees, and participation in political campaigns. The finding in New York Times v. Sullivan (1964) that the First Amendment reflects the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" does not necessarily apply to public employees. Providing a service to the public compels standards of conductapplied to public employees that would be considered too vague to apply to the common citizen. Therefore, the courts have provided greater flexibility topublic employers in restricting activity of their employees than with the public at large regarding First Amendment protections.
As stated by Justice Souter, "First Amendment limitations on public employers. . . must reflect a balance of the public employer's interest in accomplishing its mission and the public employee's interest in speaking on matters ofpublic concern." Some believed procedures for limiting the speech of employees in the public workplace as established in Waters served as a model for resolving harassment claims in private workplace settings as well. The Court ruling reinforced that speech disruptive to the mission of an organizationmay not be tolerated by the employer.
A year after the Waters case, the Supreme Court decided another publicemployee speech case in United States v. National Treasury Employees Union (1995). By amending the Ethics in Government Act of 1978, Congress sought to prohibit most executive branch federal employees from earning outside income by giving speeches or writing articles. The restriction applied even when the subject and second employer were totally unrelated to the employee's official public duties. In applying the balancing test, the Court found the law unconstitutional because the ban on the payment was essentially a ban on free speech. Payment served as an incentive toward free expression.
Added to the First Amendment constitutional protections of public employee'sspeech were statutory protections established by the Whistleblower ProtectionAct of 1989. The act further protected public employees from retaliation byemployers for speaking out on matters of public interest about their employers and agency activities. The freedom of speech for public employees on matters of public interest in a non-disruptive manner was the focus of much activity through the 1990s.
Related Cases

• New York Times v. Sullivan, 376 U.S. 254 (1964).
  
• Pickering v. Board of Education, 391 U.S. 563 (1968).
  
• Connick v. Myers, 461 U.S. 138 (1983).
  
• United States v. National Treasury Employees Union, 513 U.S. 454 (1995).

Whistleblower Protection Act of 1989
The Whistleblower Protection Act of 1989 protects the jobs of federal employees who report fraud, waste, abuse of authority, or mismanagement within the workplace. The act requires a worker to only prove his whistleblowing was "a contributing factor," not a "dominant" reason, in disciplinary actions broughtagainst him. Employing agencies must prove with "clear and convincing evidence" that actions against an employee would have occurred even if the employeehad not "blown the whistle." Office of Special Counsel (OSC) and the Merit System Protection Board (MSPB) are charged with investigating cases and protecting whistleblowers.
The OSC's primary role is to protect federal workers reporting incidents within their agencies. Responsibilities include forwarding worker complaints of employer harassment to the appropriate agency, investigating allegations of retribution, and filing complaints with the MSPB or recommending disciplinary action against employers. A worker can appeal directly to the MSPB only if theOSC drops the case or issues no reply to a complaint within 20 days. The OSCis required to respond to allegations of a "gross" nature.
The MSPB protects witnesses from harassment and encourages reluctant colleagues to testify. The MSPB also conducts hearings, appeals, special studies, andoversees the U.S. Office of Personnel Management's federal employment policies.
Sources
Congress and the Nation. Vol. IX: 1993-1996: A Review of Government and Politics. Washington, DC: Congressional Quarterly, Inc., 1998.