Disruption To Workplace Trumps Worker’s Free Speech Right

A federal appeals court has upheld the dismissal of a 9-1-1 dispatcher who repeated a racial slur in a social media post celebrating the 2016 election of GOP President Donald Trump.

A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, OH, concluded the lower court judge gave too much weight to the dispatcher’s right to free speech and too little to the disruptive impact of her speech on her workplace.

Following a trial, a jury awarded the plaintiff, Danyelle E. Bennett, $6,500 in back pay and $18,750 for humiliation and embarrassment stemming from the incident.

Bennett was fired from her job after 16 years as a Nashville, TN, Metro 9-1-1 dispatcher after making an off-duty social media post from her home to her personal Facebook page. Bennett posted an electoral map showing Trump’s victory at 3 a.m. on election night.

Shortly thereafter, a man she did not know, Mohamed Aboulmaouahib, replied, “Redneck states for Trump, n****z and latinos states vote for hillary.” Bennett responded: “Thank god we have more America loving rednecks … Even n****z and latinos voted for Trump too.”

A friend questioned Bennett’s language the next morning and Bennett said she was being sarcastic about the original commentator’s “ignorant message” and not racist except “against ignorance and rudeness.”

Bennett subsequently deleted the Facebook post and wrote an apology letter saying she felt embarrassed and humbled.

Half Dozen Complaints?

The city’s Human Resources office received three complaints and former Nashville Mayor Danyelle E. Bennett, a Democrat, forwarded a complaint to Bennett’s boss from a former dispatcher. At least one member of the public complained, according to the 6th Circuit decision.

A key factor in the case was that Bennett identified herself in her public Facebook profile as a Metro ECC employee so her comments could be tracked back to the agency. Additionally, it was felt Bennett was not sufficiently sorry and, instead, complained of being “ganged up on.”

Bennett was fired following a disciplinary hearing for reflecting discredit on the Metro government and failing to include a disclaimer on the post that her “expressed views are [hers] alone.”

U.S. District Judge Eli J. Richardson ruled in Bennett’s favor after a trial in which a jury said her Facebook comment was not reasonably likely to interfere with the operations of the ECC or to impede the performance of her duties. Moreover, he said that even if African Americans were offended it is unlikely that they would refrain from calling 9-1-1 in an emergency.

The appeals court disputed that Bennett was engaging political speech, finding instead that she used a racial slur “couched” in terms of political debate. Bennett had argued there would be no grounds for discipline if she had use the “N-word” to quote Dr. Martin Luther King or Barack Obama or to denounce the bigoted use of the word.

The panel also rejected Judge Richardson’s conclusion the flap boiled down to  “the mere use of a single word.” The panel said “centuries of history … make the use of the term more than just ‘a single word.’”

Bennett’s speech was not deserving of a high level of protection when weighed against the “substantial” disruption it caused, said the panel. “The record makes clear that the harmony of the office was disrupted, and the district court erred in discounting the importance of harmonious relationships at ECC,” it said.

The panel was comprised of Circuit Judges Martha Craig Daughtrey, Julia Smith Gibbons, and Eric E. Murphy. The case is Bennett v. Metro. Gov’t of Nashville, No. No.19-5818 (Oct. 6, 2020).

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