In employee performance management and discipline regarding employee speech, public employers must toe the line between regulating work performance and regulating employee speech on matters of public concern.  In the case of Baker v. City of Woodbury, an employer was forced to toe that line when an employee took certain training-related matters into his own hands.

The employee, Baker, was a paramedic with the City.  During his tenure, Baker was involved in several work-related incidents he felt reflected poorly on the City’s Fire Department, or showed that the Department was not meeting its safety obligations.  He voiced his concerns in several different ways, including contacting the Emergency Medical Services Review Board about training deficiencies, accusing his supervisor of being unavailable, complaining to his supervisor about understaffing, and complaining to his supervisor about the having to prepare sedatives for mental health patients.

At the end of 2019, Baker was placed on a performance improvement plan “due to his increasingly poor attitude and communication.”  His supervisors noted how he had several bad interactions with co-workers, and was no longer treating patients with the same energy.  Baker then complained to HR that he was being mistreated due to his reports to the EMSRB regarding certification deficiencies.   After his PIP meeting, he applied for an EMT position elsewhere, and resigned before any investigation could take place.

Eight months later, Baker sued the City, alleging violations of his First Amendment rights, an infringement on his civil rights by failing to adequately train employees regarding First Amendment rights, and violations of the Minnesota Whistleblower Act.  After discovery, the City moved for summary judgment.

In order for a First Amendment claim to be successful, public employees must show they engaged in activity protected by the First Amendment; the defendants took an adverse employment action against them; and the protected conduct was a substantial or motivating factor in the defendants’ decision.  Regarding the first element, the court was required to determine if Baker, through his contact to the EMSRB and concerns about the use of sedatives, “spoke as a citizen on a matter of public concern.”

The court found that assessing and maintaining training documentation was part of Baker’s normal duties as a member of the education committee.  He also reported the concerns to his supervisors after discussing them with the other committee members.  Regarding the ketamine, Baker complained to his supervisor about a directive he was given on the job.  As a result, the court found his speech was not protected by the First Amendment.

Furthermore, the court found that Baker being placed on a performance improvement plan “alone does not constitute an adverse employment action.”  The court also did not find a constructive discharge, as the supervisor behavior he found “intolerable” occurred one time and was rectified by HR after Baker’s complaint.

Because Baker’s First Amendment claim failed, his claim that employees were improperly trained on First Amendment rights also failed.  Furthermore, because he could not establish an adverse employment action, his whistleblower claim also failed.

While this is only a district court decision, it’s good to see that some performance management steps are still being protected by the courts.  Employers need to be able to provide reasonable expectations for employees without fear that the action will come back to harm the employer in court.  It is important, however, to make sure employee free speech is not being stifled in the workplace.  If you, or your organization, need assistance in properly managing your employees’ performance, contact Wiley Reber Law, for legal advice that works.