Protected matter of public concern or actionable expression of personal frustration?

Carr, R. v. PennDOT & SCSC, 189 A.3d 1 (Pa. Cmwlth. 2018), allocatur granted Jan. 8, 2019, appeal docket 3 MAP 2019.

Ms. Carr, a PennDOT employee, posted on Facebook expressing frustration with the quality of school bus drivers in her area by saying they were horrible drivers who drove on her side of the road and that she “will gladly smash into a school bus.” Slip Op. at 2. In response to the comments on her post, she made similar comments. Members of the Facebook group reported Carr’s post to PennDOT’s human resource office, which resulted in a pre-disciplinary conference, suspension, and ultimately, termination. Carr appealed her termination to the State Civil Service Commission, which after hearing affirmed Carr’s termination, on the basis that Carr’s speech was not a matter of public concern and she was not denied due process.

Ms. Carr sought appellate review of the Commission’s adjudication in the Commonwealth Court and combined it with an original jurisdiction claim that the Commission and PennDOT violated her constitutional rights. The Commonwealth Court reversed the Commission’s Adjudication and remanded, finding that Carr’s speech was a “matter of public concern” and that the Department’s generalized interest did not outweigh Carr’s specific interest, reasoning that:

Here, just as in Rankin [v. McPherson, 483 U.S. 378 (1978)] and Grutzmacher [v. Howard Cty., 851 F.3d 332 (4th Cir. 2017)], the speech in question involved a matter of public concern. The public concern in Rankin involved the attempted assassination of the President, and the public concern in Grutzmacher involved gun control. Here, Carr’s speech touched on the safety of schoolchildren and the traveling public. Although the manner in which Carr expressed her concerns is abhorrent, the controversial character of her statement is ‘irrelevant to whether it deals with a matter of public concern.’ [Citation omitted]. The Commission, in concluding Carr’s speech did not touch on matters of public concern, placed seemingly a singular focus on the caustic verbiage of Carr’s speech, as opposed to the safety issues encompassed therein. The Commission, therefore erred in concluding that Carr’s speech did not touch on matters of public concern.

Slip Op. at 16.  Once the Commonwealth Court determined that Carr’s speech was a matter of public concern, it weighed Carr’s interest and the Department’s interest against each other by using the factors found in Sacks v. Department of Public Welfare, 465 A.2d 981 (Pa. 1983) (citing Pickering v. Bd. Of Educ. Of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983)), and concluded:

After a thorough review of the record and a conscientious analysis of the factors articulated by the United States Supreme Court, we conclude that the Department’s generalized interest in the safety of the traveling public does not outweigh Carr’s specific interest in commenting on the safety of a particular bus driver. While Carr’s comments are undoubtedly inappropriate, such comments still receive protection under the First Amendment. With the exception of a speculative prediction of future harm, the Department put forward no concrete evidence of tangible harm resulting from Carr’s speech. As our Supreme Court opined in Sacks:

There is a calculus of injury required in First Amendment government employee cases in which as the First Amendment interest in the speech rises, so does the government’s obligation to react with caution, disciplining an employee, if at all, only when injury to the agency is more than speculative.

(Citation Omitted). Here, the Department has not shown its concern rise to anything more than speculative.

Slip Op. at 20.

The Commonwealth Court granted the Commission’s application for summary relief as to the original jurisdiction claims and dismissed the Commission, leaving PennDOT as the sole remaining original jurisdiction count respondent. 

The Supreme Court has granted allocatur to address the following issues, as stated by the Petitioner:

(a) Is the Commonwealth Court’s decision in conflict with the U.S. Supreme Court’s rulings in Pickering [v. Bd. of Educ. of Twp. High Sch. Dist., 391 U.S. 563 (1968)] and its progeny, which allow a government employer to terminate an employee on the basis of their speech, even when it touches upon a matter of public concern, so long as the employer can demonstrate that an adverse effect could be reasonably foreseen ?

(b) Did the Commonwealth Court err as a matter of law by failing to give sufficient weight to the public importance, or lack thereof, of Carr’s Facebook comments, as required by Pickering and its progeny?

(c) Did the Commonwealth Court err as a matter of law by failing to give sufficient weight to the public importance, or lack thereof, of Carr’s Facebook comments, as required by the Pennsylvania Supreme Court in Sacks?

For more information, contact Kevin McKeon or Dennis Whitaker.