Weeks v. Bayer (April 18, 2001)
* court: Ninth Circuit
* public agency: Nevada Department of Prisons
* plaintiffs' job classes: assistant cirector
* trial court's decision: against plaintiff
* Ninth Circuit's decision: against plaintiff
* issue area: free speech, public concern, First Amendment
Weeks Facts
*
Starting in 1988, Weeks worked as an assistant director of the Nevada
Department of Prisons. He
received “outstanding” on his performance evaluations.
*
In October 1997, a representative of the Nevada Bureau of Alcohol and
Drug Abuse asked Weeks about the status of the department’s inmate
substance abuse programs. Weeks
said the programs might have to be stopped due to director Bayer’s
delays in obtaining funding.
*
One week later Bayer fired Weeks.
*
Weeks sued Bayer, contending that Weeks’ First Amendment rights to
free speech had been violated.
*
The district court dismissed Weeks’ case because his speech did not
relate to a matter of public concern.
* The Ninth Circuit agreed with the district
court.
Analysis of the Ninth Circuit's Weeks Decision
*
The Ninth Circuit began by reminding us that one of the things that a
public-employee plaintiff must show in a First Amendment unlawful
retaliation case is that the plaintiff’s speech was “on a matter
of public concern”.
*
If a public-employee plaintiff cannot show that his or her speech
involved public concerns, then the case is over.
*
“Analysis of public concern is not an exact science.”
You first look to the content of the speech.
Does it involve political or social matters (e.g., misuse of
public funds, wastefulness, inefficiency) or other matters about which
members of society need to know?
*
Weeks’ comments to the Bureau of Alcohol and Drug Abuse
representative did not meet this standard. “There was no suggestion of malfeasance, no hint of
complaint or outcry, no discussion of issues of the day.
This was mere everyday conversation between government
employees. To protect this single comment would go a long way toward
rendering actionable every job-related conversation between government
employees.
Water cooler conversation would because the stuff of First Amendment
claims, and casual remarks about work would be elevated to
constitutional complaints. The
First Amendment does not go that far.”
* The court additionally held that the content of
Weeks’ speech did not relate to a public concern.
