Bennett v. Metro. Gov't of Nashville & Davidson Cnty.

977 F.3d 530

Danyelle E. BENNETT, Plaintiff-Appellee,

v.METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, TENNESSEE, Defendant-Appellant.

No. 19-5818

United States Court of Appeals, Sixth Circuit.

Argued: May 6, 2020

Decided and Filed: October 6, 2020

Rehearing En Banc Denied November 6, 2020

MARTHA CRAIG DAUGHTREY, Circuit Judge.

At issue in this case is whether a public employee's use of a racial slur when discussing politics on Facebook is sufficiently protected by the First Amendment to outweigh a government agency's interest in having an efficient workplace and effectively serving the public. Plaintiff Danyelle Bennett was terminated from her position at the Emergency Communications Center (ECC) of the Metropolitan Government of Nashville (Metro) for a Facebook comment she made on November 9, 2016. On the night of the Presidential election, Bennett posted from her public-facing Facebook profile concerning Trump's victory. In response to someone else's comment, Bennett replied using some of the commenter's words: "Thank god we have more America loving rednecks. Red spread across all America. Even niggaz and latinos voted for trump too!" As a result of Bennett—a white woman—using what Metro deemed racially-charged language, several employees and a member of the public complained to ECC leadership and the Mayor's office. ECC officials determined that Bennett violated three Civil Service Rules and, after paid administrative leave and a due process hearing, they terminated her from her position. Bennett sued Metro for retaliation under the First Amendment and, following a jury trial that determined certain issues of fact, the district court found in favor of Bennett.

Metro appeals, arguing that the district court gave greater protection to Bennett's speech than the law warrants and improperly minimized the disruption Bennett's speech caused in the agency. A review of the record reveals the district court erred in its analysis, and we therefore reverse the district court's decision and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Bennett began working for Metro's ECC as an Emergency Telecommunicator in 2001 and was employed there for 16 years. Her role was to field emergency calls, and she was also certified in emergency medical dispatch and emergency fire dispatch. On the evening of November 8, 2016—Election Day—Bennett anxiously awaited the results of the Presidential election, hoping for a win by the candidate she supported, Donald Trump. She stayed up watching the results until about 3:00 a.m. on November 9, when the electoral votes for Trump reached 270. At that time, she made a Facebook post from her public-facing profile of an image of the electoral map revealing Trump as the winner. Shortly thereafter, before Bennett went to bed, she received a notification that Mohamed Aboulmaouahib—a man she did not know—commented on her post, writing that "Redneck states vote[d] for Trump, niggaz and latinos states vot[ed] for hillary." She replied: "Thank god we have more America loving rednecks. Red spread across all America.

Even niggaz and latinos voted for trump too!" The following morning, Bennett was off-duty when she received a notification that her friend and former colleague had commented on her post, asking "Was the niggaz statement a joke? I don't offend easily, I'm just really shocked to see that from you." Bennett replied, and several other comments demonstrating offense to Bennett's use of the racial slur followed. At approximately 3:45 p.m., after Bennett's friend and former colleague, Tamika Barker, responded to the comment, Bennett spoke on the phone with her and, as a result, deleted the entire Facebook post.

During this same day, the Facebook comment also became an issue at the ECC office. On the morning of November 9, Lynette Dawkins, the Metro Human Resources (HR) coordinator, began receiving complaints about Bennett's comment. Two ECC employees came to her office upset and complained about a derogatory comment on Facebook made by Bennett. She also received an anonymous text with a screenshot of Bennett's comment to her post, asking "when is this ever acceptable?" Dawkins informed her supervisor, Bruce Sanschargrin, of these complaints when he arrived in the office. He then opened Facebook, found Bennett's public post, and agreed that her comment on the post was "racially offensive" and "degrading" towards both African Americans and Caucasians. Sanschargrin then contacted ECC director Michele Donegan to make her aware of the complaints and how Metro employees were being impacted. Shortly thereafter, Assistant Director Angie Milliken came to his office. She also had received reports about complaints and conversations over the post; she noted that the office was unusually quiet that day.

When Donegan arrived to Sanschargrin's office, she learned that Bennett not only identified herself as a Metro employee in her Facebook profile, but also as an ECC employee and a Metro Police Department employee. Donegan became concerned about the potential impact Bennett's use of racially charged language could have on the workforce and determined that the next step would be to have Sanschargrin reach out to Bennett to have her remove the post and to speak with her first thing in the morning.

Throughout that day, additional complaints were made. Alisa Franklin, Emergency Telecommunicator and chief steward of the Service Employees International Union (SEIU), received multiple complaints, both in person and over text messaging, complaining about Bennett's comment and use of the racial slur. Franklin conveyed to her supervisor that, in addition to the complaints she received, she, too, was shocked, hurt, and disgusted by Bennett's post. Donegan also received an email from the mayor's office that included a complaint from a constituent. The mayor's office specifically questioned whether Bennett identified herself as a Metro employee on her Facebook page. The complaint contained a screenshot of the constituent's Facebook post showing only Bennett's response and omitting Aboulmaouahib's, with a caption:

If you've called 911 & officers don't get there as quickly as you need them it may not be the officer. And it may not have anything to do with calls around the city. In fact it may be the dispatcher that got your call. If your skin is too dark your call may have just been placed on the back burner. #WelcomeToNashville #MusicCity #Metro.

The screenshot was accompanied by a statement:

These kind of derogatory statements are being made by our own government here in Davidson County. Despite everything else going on across the country I've always had a sense of hope for my city, Nashville. But after seeing things in this light I don't know anymore. I want to know that my life is valuable and that I will be protected just as well as any other citizen despite the color of my skin. Please fix this!

Sanschargrin also received a screenshot via text message of the same cropped Facebook post with the message "I just came across this post. I know it doesn't matter but this is an ex-employee throwing gasoline on the fire."

Later that afternoon Bennett returned Sanschargrin's call. Sanschargrin asked Bennett to remove the post because several other employees had spoken to him that day and were upset about it. She explained that it had already been removed. He then asked Bennett to come to work early the next day, prior to roll call, to discuss the matter further with him and Donegan.

The following morning Bennett met with Sanschargrin and Donegan. Bennett explained that her comment on the post was a sarcastic response mocking the comment by Aboulmaouahib. Sanchargrin, and Donegan made clear that the language she used was inappropriate and that it was viewed as racially charged. Although Bennett acknowledged that other employees appeared to be outwardly offended, she believed they were just "playing the victim" and were not really offended. Bennett claimed that she was the real victim in the situation and resented being ganged up on. Donegan was concerned by Bennett's lack of remorse about her language and by her failure to acknowledge that it was an issue. It was only when Sanschargrin said it was possible the situation could result in some form of corrective or disciplinary action that Bennett changed her tune. Bennett asked how to fix the situation and offered to apologize to employees, but she declined Donegan's offer to issue an apology at roll call that morning. In the end, Donegan decided to place Bennett on paid administrative leave for a week or two to give management time to investigate the matter and allow the "uproar that had started to settle down."

Donegan was concerned about the impact of Bennett's language on the dynamics of the office. Communication between telecommunicators was essential to the work they did and, after the racially charged comment and the reactions of the employees, she was anxious about the team dynamics and the creation of a racial divide. She directed Sanschargrin to complete a summary of what had happened, investigate the facts, and identify any policies that Bennett may have violated.

Conversations about the issue continued after Bennett's leave began. The following week, Donegan received a call from the "second-in-command" for Metro Human Resources telling her that some ECC employees had come to his office with concerns. Franklin—in her role as chief union steward—reported that there was a level of general discomfort throughout the center and that "things were not harmonious like they normally were." The union stewards again raised the issue at the SEIU monthly meeting with Donegan. They described a great deal of tension in the call center, explaining that there was not the same level of communication going on as there was before the incident, reflecting a disconnect among the employees. As a result, they recommended diversity training for employees and Donegan agreed,...