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Free Speech Rights of Government Employees – More Limited Than You Might Think

Public employees enjoy more protections in the workplace than employees in the private sector. This is especially true when it comes to First Amendment rights. Therefore, a governmental employer may wonder whether it can lawfully discipline an employee for publicly criticizing it or accusing it of immoral or illegal behavior. Although whistle blower statutes can provide employees with additional protections, the free speech rights of public employees under the First Amendment are fairly limited. Not all speech is protected speech, and even if it is, the employee must jump through several more hoops to successfully establish a First Amendment retaliation claim. A recent Seventh Circuit Court of Appeals opinion illustrates the extent of those hoops.

In Diadenko v. Folino and The Board of Education of the City of Chicago, the Seventh Circuit held that the district court did not err when it granted summary judgment in favor of the Board of Education of the City of Chicago on Elena Diadenko’s retaliation claim. Diadenko was hired by Schurz High School as a special education teacher in 2009. Shortly after her employment commenced, she began voicing concerns about certain practices within the school’s special education department to Ann Folino, the school’s principal. When the issues were not resolved to her satisfaction, Diadenko filed a complaint with the Illinois State Board of Education and sent a letter to the Mayor’s Office. She also became very abrasive and vocally criticized Folino and other school administrators. Indeed, in a disciplinary appeal hearing, Diadenko called Folino a “Nazi concentration camp leader” and likened her to the “Italian Mafia.” Between October 2009 and January 2010, Diadenko was reprimanded once and suspended twice.

Diadenko claimed that the suspensions were in retaliation for the letter she sent to the Mayor’s Office. But, “in order to establish a First Amendment retaliation claim, a public employee must show that: (1) she engaged in constitutionally protected speech, (2) she suffered a deprivation because of her employer’s action and (3) her protected speech was a but-for cause of the employer’s action.” According to the court, Diadenko failed to establish the third element because there was no evidence in the record besides her own testimony that Folino knew about the letter to the Mayor’s Office at the time the discipline was issued. Therefore, at least in the Seventh Circuit, a public employee cannot establish a prima facie case of unlawful First Amendment retaliation unless they can present substantive evidence that the government employer was aware of the protected speech. And even if knowledge of the protected speech can be proved, the discipline may still be lawful if “another dramatic and perhaps abrasive incident” also influenced the government employer’s decision.