Sometimes, however, “it can be unclear whether an employee spoke while wearing a ‘public’ or ‘private’ hat.” Id. at 595. In “decid[ing] whether expression falls within the public or private bucket,” a court may be called upon to answer a number of questions, such as “What was the ‘impetus’ for or ‘motivation[ ]’ behind the speech?”; “What was the speech’s setting?”; and “Who was the speech’s audience?” Id. at 595–96 (citations omitted).
The Court finds it unnecessary to answer such inquiries here because, to support the argument that Plaintiffs were speaking as employees, Dr. Bruce relies upon deductive reasoning involving leaps the Court is unwilling to take. Specifically, she asserts that a teacher’s job is to teach; the goal of the flyer was to educate; the flyer was placed in a university building during business hours; ergo, Plaintiff’s action “is identical to that of a professor engaging in his or her professional teaching responsibilities.” (Doc. No. 70 at 10). Not so.
“The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Lane v. Franks, 573 U.S. 228, 240 (2014). Further, after the Supreme Court’s decision in Lane, “the Garcetti exception to First Amendment protection for speech residing in the phrase ‘owes its existence to a public employee’s professional responsibilities’ must be read narrowly as speech that an employee made in furtherance of the ordinary responsibilities of his [or her] employment.” Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015). Making and surreptitiously dropping-off anonymous flyers to unknown recipients was neither an official duty nor a professional responsibility of either Plaintiff.
- 2. Adverse Action
Dr. Bruce also argues that Plaintiffs have not established the second element of a retaliation claim because the “nominal sanctions” imposed “would not chill the speech of an ordinary person.”
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Case 2:21-cv-00039 Document 90 Filed 12/01/22 Page 12 of 27 PageID #: 8924
