Bank Employee Terminated for Criticism of School District’s Mask Mandate; First Amendment Claims Fail

One thing many citizens don’t realize is that if you want to make a claim that someone violated your First Amendment rights to free speech, there must be a state actor involved.  In the case of McNeally v. HomeTown Bank, the plaintiff tried to tie her termination from a private bank to the acts of a government employee, and failed.

HomeTown Bank was selected by the Shakopee school district to serve as a business role model for its students.  The bank donated money to the schools, and was given a designated space at Shakopee High School for the bank to operate as a “school branch.”  McNeally worked at the school branch of Hometown Bank for about six hours a week when it was open.  Neither the school, nor the district superintendent had the authority to hire or discipline bank employees.

When COVID started, McNeally confronted the school board president about the school district’s mask mandate.  Six days later, while working in her official capacity as a bank employee, she was involved in a confrontation with a parent at an elementary school function.  The incident was reported to the district’s superintendent.  Two more public incidents occurred having to do with the school district’s mask mandate, where McNeally was critical of the district.

The following day, the superintendent met with McNeally’s supervisor and shared his concerns about McNeally’s behavior.  The superintendent asked that McNeally not be present in any school areas as a representative of the bank.  McNeally was then suspended, investigated, and terminated from her employment with the bank after additional misconduct was discovered.  McNeally sued both her employer and the school district on First Amendment grounds, claiming retaliation for her protected speech.

To establish a First Amendment claim, it was necessary for her to prove that:

  1. She engaged in protected activity;
  2. A government official took an adverse action against her that would chill a person of ordinary firmness from continuing in the activity; and
  3. The protected speech motivated the government official’s actions and the retaliatory animus caused her injury.

A private person, i.e., her supervisor, can only be liable on a First Amendment claim if that person “willfully participated in joint activity with a state actor to deprive the plaintiff of a constitutionally protected right.”  Unfortunately for McNeally, she had no evidence that showed any agreement between the district and her supervisor to suspend, investigate, and terminate her for her actions.  The actions taken by HomeTown Bank were found to be the decisions of the bank, and there was no evidence to support that the district had requested any disciplinary action occur.  As such, the complaint against the bank was dismissed.

With regard to the superintendent, McNeally again provided no evidence that the superintendent committed any adverse actions towards her.  While she was banned from school property, that action was not found to be adverse, as McNeally was still employed.  The court found that the superintendent’s interest in the safety of students, along with promoting efficient public services in the district, represented a significant interest.  The court found that the district’s interests far outweighed the interests of McNeally’s desire to be disruptive at school activities.

McNeally had several other claims against individuals and the district.  However, for similar reasons, her claims were dismissed.

First Amendment defense is always tricky, especially when there are multiple actors involved.  In this situation, both the employer and the district were right to take the necessary steps to remove the employee from the situation.  It is important, when weighing an employee’s free speech interests, that employers take the necessary steps to protect themselves.  If you, or your organization, need assistance with difficult cases of employee free speech, contact Wiley Reber Law, for legal advice that works.