Professor’s Claim That She Was Fired for Objecting to Superiors About Mask Mandate Can Go Forward

From Griffin v. College of Maine System, determined Aug. 16 by Chief Choose Jon Levy (D. Me.):

Plaintiff Patricia Griffin’s employment as a [tenured] Professor of Advertising on the College of Southern Maine was terminated by the College of Maine System … in September 2021…. Griffin asserts that her termination was illegal retaliation for her having spoken out towards the College’s facemask and vaccination insurance policies adopted in response to the COVID-19 pandemic….

On August 18, 2021, in preparation for the College’s fall semester, the Chancellor of the College of Maine System introduced a compulsory masks coverage (the “Coverage”). On August 24, Griffin participated in a luncheon assembly through Zoom at which Cummings was a speaker. She alleges that in the course of the occasion, [University President Glenn Cummings] didn’t put on a masks. On the identical day, Griffin despatched an electronic mail to the Dean of the School of Administration and Human Service pertaining to the College’s not too long ago applied masks and vaccine insurance policies. The e-mail reads in pertinent half:

I first wish to say how a lot I like instructing at [the University of Southern Maine] in addition to working with such an awesome school. It actually has been the spotlight of my profession and I owe loads to you for sticking with me. The rationale for this electronic mail is as a result of I’ve been following the science, information, and proof concerning SARS-CoV-2 and trying to find something that may assist sporting a masks whereas indoors in addition to vaccinating a complete college inhabitants because the optimum technique for stopping the transmission of the virus. The fact is that my analysis has discovered no proof to assist these measures. I wished to share the data I gathered and relied upon when making my choice concerning these mandates earlier than the beginning of lessons subsequent Monday to see that my selections are science, proof, and information primarily based. Nonetheless, I don’t wish to trigger any points, particularly for you, if I come to campus on Monday morning to show my one nose to nose class so I wished to present you sufficient time.

Griffin hooked up a separate letter to her electronic mail, additionally addressed to the Dean, summarizing the outcomes of her analysis on the effectiveness of masks mandates and vaccines. She concluded the letter as follows:

In conclusion, I’ve adopted the science, information, and proof and can’t discover any overwhelming assist for the sporting of masks nor the mandating of vaccines, particularly for the reason that total survival price is 99.7% if contaminated with Covid. And eventually, from a authorized perspective, asking for my vaccination standing is a violation of HIPAA.

My expectation is the College of Southern Maine will recognize a college member who embraces essential pondering and applies each inductive and deductive reasoning somewhat than feelings when making selections. I’m instructing three programs this fall, two on-line and one nose to nose. I welcome any proof you’ll be able to present on the contrary of what I’ve discovered which can persuade me that my conclusions in regards to the efficacy of sporting a masks and vaccinating a complete inhabitants are incorrect.

On August 25, Griffin met with the Dean through Zoom, the place she reiterated her request for information supporting the College’s Coverage and vaccination requirement and asserted her view that Cummings had violated the Coverage on the luncheon. Griffin alleges that she by no means refused to put on a masks and by no means said that she would violate the Coverage.

Griffin asserts that instantly following the Zoom assembly, her fall semester programs— one face-to-face class and two asynchronous on-line lessons—have been faraway from the autumn class checklist. Two days later, College directors convened a pre-disciplinary convention at which Griffin was current and at which she reiterated her request for information supporting the Coverage. The directors allegedly informed her that she wouldn’t be allowed to show programs 100% on-line except she resigned and accepted a part-time place….

On September 8, 2021, Griffin acquired a letter from Cummings suspending her and informing her that the College can be transferring to terminate her employment. Griffin alleges that the letter falsely asserted that her electronic mail to the Dean had indicated that she refused to adjust to the Coverage, and that the letter included extra false assertions about her refusal to put on a masks and her intention to violate the Coverage. She alleges that the letter brought about her extreme emotional misery and that it was despatched in retaliation for her earlier communications with the Dean. College directors scheduled a Grievance Listening to, and Griffin discovered that Cummings would attend the listening to. As a result of she had beforehand filed a Human Assets criticism alleging that Cummings had created a hostile work surroundings, Griffin asserts that she felt intimidated by Cummings’s presence and didn’t really feel comfy attending the listening to. The listening to went ahead in Griffin’s absence, ensuing within the termination of her employment efficient September 22, 2021….

The courtroom allowed Griffin’s First Modification case to go ahead, to the extent that it sought reinstatement somewhat than damages (which have been barred by Eleventh Modification immunity and certified immunity):

Griffin asserts that she engaged in protected speech when she made her requests to the Dean searching for information supporting the College’s COVID-19 insurance policies, and that she was talking as a citizen on a matter of public concern. Accordingly, she contends that the Defendants violated her First Modification rights by terminating her employment in retaliation for that speech.

To determine a prima facie case of retaliation underneath the First Modification, a plaintiff should present that: “(1) she engaged in protected conduct; (2) she suffered an opposed employment motion; and (3) … ‘a causal nexus exists between the protected [conduct] and the opposed motion.'” The “threshold inquiry” to find out whether or not a public worker engaged in protected speech is “whether or not [the employee] spoke as a citizen on a matter of public concern.” If the reply isn’t any, the worker has no First Modification retaliation declare. If the reply is sure, then the potential of a First Modification declare arises. “As a way to survive a movement to dismiss, a plaintiff needn’t conclusively set up that her speech was made as a citizen; ‘it’s enough that the criticism alleges info that plausibly set forth citizen speech.'” …

“Speech entails issues of public concern ‘when it might probably “be pretty thought of as regarding any matter of political, social, or different concern to the neighborhood,” or when it “is a topic of professional information curiosity; that’s, a topic of basic curiosity and of worth and concern to the general public.'””The Defendants argue that Griffin’s speech “was not plausibly lodged on a matter of public concern … [but] was lodged as a criticism concerning her employer’s coverage.” Nonetheless, the Defendants don’t meaningfully dispute that the underlying subject material of Griffin’s speech—the COVID-19 pandemic and the response of public establishments to it—has generated important public debate and controversy in Maine and elsewhere over the past three years. Thus, the decisive query right here is the opposite component of the edge inquiry: whether or not Griffin’s speech was made in her capability as a public worker or as a non-public citizen….

For functions of the First Modification, public workers don’t communicate as residents once they “make statements pursuant to their official duties.” …

The Supreme Court docket has acknowledged that not all speech that “merely pertains to public employment or issues info discovered in the middle of public employment” is disadvantaged of First Modification protections. It is because sure speech—for instance, a public worker’s sworn testimony associated to misuse of public funds—has “particular worth exactly as a result of [an] worker[ ] good points[s] information of issues of public concern by their employment.” Speech by public workers associated to their employment holds “particular worth” as a result of “[g]overnment workers are sometimes in the very best place to know what ails the businesses for which they work,” and since they “‘are uniquely certified to remark’ on ‘issues regarding authorities insurance policies which might be of curiosity to the general public at massive.'”

Accordingly, the truth that the speech at situation right here associated to Griffin’s employment is just not dispositive of whether or not she was talking pursuant to her official duties as a public worker. As an alternative, as set forth by the First Circuit in Decotiis, a number of non-dispositive components have to be evaluated:

[(1)] [W]hether the worker was commissioned or paid to make the speech in query; [(2)] the subject material of the speech; [(3)] whether or not the speech was made up the chain of command; [(4)] whether or not the worker spoke at her place of employment; [(5)] whether or not the speech gave goal observers the impression that the worker represented the employer when she spoke (lending it “official significance”); [(6)] whether or not the worker’s speech derived from particular information obtained in the course of the course of her employment; and [(7)] whether or not there’s a so-called citizen analogue to the speech.

The components recommend that the context through which a public worker speaks bears closely on whether or not the worker was talking pursuant to her or his official job duties.

As utilized to the allegations of Griffin’s Amended Criticism,⁴ an analysis of the primary two Decotiis components—whether or not the worker was commissioned or paid to make the speech in query, and the subject material of the speech—produces a blended end result. As a result of Griffin was employed to show college students, and to not analyze and assess the College’s well being and security insurance policies, her speech can pretty be handled as outdoors the peculiar scope of her duties and as an alternative merely associated to her duties. Seen on this mild, though Griffin’s electronic mail and letter have been associated to her employment on the College, that’s, with out extra, inadequate to deprive her speech of First Modification protections …. Then again, a sensible inquiry into her employment duties, past her official job description, suggests in any other case. The subject material of her electronic mail and letter involved what she would possibly do within the classroom and expressed issues concerning the College’s inner insurance policies and the circumstances the College had imposed on her in-person instructing duties, thus bearing immediately on issues inside the scope of her employment.

The third and fourth Decotiis components—whether or not the speech was made up the chain of command, and whether or not the worker spoke at her place of employment—assist the conclusion that Griffin’s speech was communicated in her capability as an worker and never as non-public citizen. All the speech at situation was communicated by Griffin immediately up the chain of command to the Dean of the School of Administration and Human Providers. Additional, the speech was communicated solely inside the channels of her employment through her official work electronic mail account and at face-to-face conferences with the Dean and different college directors…. [A] criticism or concern “made up the chain of command … is the quintessential instance of speech that owes its existence to a public worker’s official duties.” {I don’t tackle the fifth issue, as there have been no goal observers of Griffin’s speech.}

The sixth Decotiis issue—whether or not the worker’s speech is derived from particular information that she obtained in the course of the course of her employment—weighs towards concluding that Griffin spoke as a non-public citizen. Griffin doesn’t allege that she was “uniquely certified,” to share details about the effectiveness of masks mandates and vaccine necessities on account of her employment, nor did she get hold of particular info concerning the Coverage by her place. Accordingly, Griffin’s speech doesn’t maintain that “particular worth” of protected speech that pertains to an worker’s official duties ….

The seventh Decotiis issue—whether or not there’s a so-called citizen analogue to the speech—in the end weighs in favor of a discovering that Griffin’s speech was made outdoors the scope of her employment. On one hand, not like a letter to a newspaper or different “form[s] of activit[ies] engaged in by residents who don’t work for the federal government,” Griffin’s electronic mail and letter have been despatched on to her superior by her College electronic mail account and pertained to her disagreement with the Coverage and its influence on her face-to-face instructing circumstances. Equally, the communication that occurred throughout Griffin’s assembly with the Dean was plainly a non-public, employment-related encounter. Furthermore, Griffin states in her electronic mail that she had made a “choice concerning these mandates,” from which one may pretty infer that she was informing her employer that she won’t adjust to the Coverage primarily based on her analysis.

Nonetheless, on the movement to dismiss stage I have to draw all cheap inferences in Griffin’s favor. In that mild, additionally it is attainable to deduce that Griffin’s “choice” represented the conclusion or conclusions she had drawn concerning the Coverage and its efficacy, and never a last choice to not adjust to it. The substance of Griffin’s electronic mail and letter additionally communicated her issues in regards to the College’s response to the pandemic and the efficacy of masks mandates on school campuses. Seen on this method, Griffin’s speech could possibly be thought of “sufficiently analogous to the speech of different residents in the neighborhood troubled,” by facemask and vaccine insurance policies applied by public establishments in the course of the COVID-19 pandemic, thus warranting a conclusion that there’s a believable citizen analogue to Griffin’s speech.

Assessing the allegations of Griffin’s Amended Criticism in relation to the Decotiis components produces an unsure end result. Nonetheless, accepting all of Griffin’s factual allegations as true, the query that I have to in the end resolve at this preliminary juncture is whether or not the Criticism has offered “sufficient info to state a declare to aid that’s believable on its face.” …

Right here, Griffin has pleaded enough info to make it greater than merely attainable that when totally developed, the info will assist the conclusion that though Griffin’s speech associated to her official duties as a public worker, the subject material of her speech pertained to a matter of nice public concern and was outdoors the scope of her duties as a professor of selling. Whether or not the identical conclusion could also be true after the events have accomplished discovery is one other matter for an additional day. “[I]t is fully attainable that extra info would possibly present” that Griffin is just not entitled to the aid that she seeks, however “absent factual growth, dismissal is unwarranted” at this stage….

Be aware that Griffin’s allegation “that she by no means refused to put on a masks and by no means said that she would violate the Coverage” appears fairly central right here; it would not violate the Free Speech Clause to fireside her for not sporting a masks, or for refusing to put on a masks, however her declare is that she was fired merely for arguing that the coverage was unsound.