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1st Amendment no shield

Jennie Bell (Law.com) -- Interoffice grievances are not necessarily covered by the First Amendment, according to a federal district court order involving a Georgia Tech math professor.

The case, Hill v. Regents , No. 1:00-CV-1256 (N.D. Ga. Feb. 28, 2001) was dismissed by U.S. District Court Judge J. Owen Forrester who ruled that "a government employee does not have an absolute right to freedom of speech" if that speech is not public.

Professor Theodore P. Hill had sued the Board of Regents, alleging Georgia Tech officials had retaliated against him after he criticized the school's math department for alleged financial improprieties.

According to the order, Hill's troubles with the board began in 1996 when he complained to a committee evaluating math department head Shui-Nee Chow that he was using department funds for personal expenses. The university and the state attorney general's office investigated Hill's claims and recommended Chow be reprimanded. However, Chow left the university before the investigations were completed.

In his suit, Hill claimed Chow and other administrators punished him for his criticism of Chow by issuing "mediocre evaluations" of Hill's job performance from 1997 to 1999 and granting a "below average raise." During those three years, Hill said he repeatedly complained to university officials about the evaluations.

Forrester's order does not dispute Hill's allegations, but declares that the First Amendment only covers employee "speech" meeting the criteria set forth in Pickering v. BOE , 391 U.S. 563,568 (1968), and Connick v. Myers , 461 U.S. 138,146 (1983).

The four prongs of the Pickering-Connick test require that: the speech be of "public concern"; the First Amendment interests be more important than public operations; the speech be a large part of the retaliation; and the employer likely would have reacted differently without the employee's actions.

For a First Amendment case to be dismissed, it must fail two of the four Pickering-Connick prongs.

Hill's complaint did not meet the first criteria for two reasons, Forrester wrote. His letter to the committee evaluating Chow was not of public concern because it was labeled "confidential" and was not aired in a public venue.

"Plaintiff appears to allege that even though his 'opinion paper' was 'confidential,' it was distributed to 'all faculty and staff in [the School of Mathematics].' Even accepting this assertion, ... Plaintiff's communication was not meant to address issues of general public concern or engage the public at large," wrote Forrester.

The content of the letter also precludes it from First Amendment protection, Forrester wrote. Only a small part of Hill's complaint dealt with abuses of public university funds, while most of it attacked Chow's managerial style, according to the order.

"When there is a personal element to the speech, complaints of wrongdoing within a public agency may not constitute speech on a matter of public concern," Forrester said.

Hill's case failed the second prong of Pickering because the future of a public agency was threatened by Hill's complaints, according to the order. His report placed the college's accreditation at risk, a subject of more interest to the public than Hill's complaints, Forrester wrote. Forrester also wrote that since the four administrators who evaluated Hill are being sued in their official capacities as public officials, they gain qualified immunity.

"The burden then shifts to the plaintiff to show that the actions of the [administrators], at the time they occurred, violated clearly established law," Forrester wrote. But by failing the Pickering test, Hill's case cannot prove the administrators violated his First Amendment rights, Forrester added.

Hill has remained on the Georgia Tech faculty, but is on an indefinite leave of absence, according to Hill's lawyer, Edward D. Buckley III, of Greene, Buckley, Jones & McQueen. Buckley says the decision is being appealed.

(c) 2001 Law.com

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