Waters v. Churchill

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 employer reasonably 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 a court 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 follow common 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 was sufficient to warrant personnel action. O'Connor considered discouraging an employee from seeking a transfer sufficiently disruptive to outweigh any First Amendment 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 employee who 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 that the employer should not be required to conduct an investigation before taking disciplinary 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.