R.L. Carr v. PennDOT, PA SCSC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rachel L. Carr, :
Petitioner :
:
v. : No. 380 M.D. 2017
: Argued: May 8, 2018
Commonwealth of Pennsylvania, :
Department of Transportation and :
Commonwealth of Pennsylvania, :
State Civil Service Commission, :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY JUDGE BROBSON FILED: June 12, 2018
Before this Court is the petition for review (Petition) of Rachel L. Carr
(Carr), which invokes this Court’s original and appellate jurisdictions, and an
application for summary relief filed by the State Civil Service Commission
(Commission). In our appellate jurisdiction, Carr petitions for review of an
adjudication and order of the Commission (Adjudication), which dismissed her
challenge of the Commonwealth of Pennsylvania, Department of Transportation’s
(Department) termination of her employment. In our original jurisdiction, Carr
alleges that the Department and Commission violated her constitutional rights when
the Department terminated her employment and the Commission failed to issue the
Adjudication in a timely manner. In response, the Commission filed an application
for summary relief. We now reverse the Adjudication and remand the matter to the
Commission. We also grant the Commission’s application for summary relief as to
the original jurisdiction claims and dismiss the Commission from this matter.
Following a promotion, Carr began working as a Roadway Programs
Technician I within the Department on March 5, 2016. (Reproduced Record (R.R.)
at 3a, 73a-74a.) As part of this promotion, the Department imposed upon Carr
a 180-day probationary period of employment. (Id. at 3a.) On May 24, 2016, while
Carr was off-duty and at home, she used her personal Facebook account to post a
“rant” in a Facebook group “Creeps of Peeps.” (Id. at 16a.) Carr, frustrated with
the quality of school bus drivers in her area, posted the following:
Rant: can we acknowledge the horrible school bus
drivers? I’m in PA almost on the NY boarder [sic] bear
[sic] Erie and they are hella scary. Daily I get ran off the
berm of our completely wide enough road and today one
asked me to t-bone it. I end this rant saying I don’t give a
flying shit about those babies and I will gladly smash into
a school bus.
(Id.) Over the course of approximately five hours following her original post, Carr
responded to comments from members of the Facebook group. In one response,
Carr asked another member of the group: “If you see a vehicle coming perpendicular
[to] you with no turn signal on, do you pull out from your stop sign anyways? [Let
me know] when you’re done [G]oogling perpendicular[.]” (Id. at 20a.) In another
response, Carr stated: “Your children and your decision to chance them with a driver
you’ve never been a passenger with is your problem. A vehicle pulls out in front of
me or crosses the yellow line, that’s their problem. A sedan, school bus or water
truck. You’re [sic] kids your problem. Not mine[.]” (Id. at 23a.) When one group
member responded and suggested that Carr should be more concerned with the
safety of the children, Carr reiterated that she cared about herself and her safety more
so than the safety of the children. (Id. at 20a-22a.) Carr emphasized that she should
not be forced to put herself at risk due to the unsafe driving of the school bus driver.
(Id. at 21a.)
2
Thereafter, members of the Facebook group sent screenshots of her
interactions to the Department’s Facebook page, expressing concern with the content
of Carr’s statements. (Id. at 17a-19a.) Carr’s Facebook profile identified the
Department as her employer. (Id. at 14a.) The Department’s human resources office
thereafter scheduled a pre-disciplinary conference with Carr for May 27, 2016.
(Id. at 89a-90a.)
At the pre-disciplinary conference, Carr admitted to posting the rant,
but she asserted that her comments were taken out of context and that she was merely
expressing her frustrations with the unsafe driving habits of local school bus drivers.
(Id. at 26a.) Carr stated that she would not intentionally crash into a school bus, but
that the poor driving of the school bus driver may necessitate her doing so to avoid
injury to herself. (Id. at 27a.) Following the pre-disciplinary conference, the
Department suspended Carr pending a further investigation. (Id. at 29a.)
By letter dated June 14, 2016, the Department terminated Carr’s
employment due to her inappropriate behavior. (Id. at 31a.) Carr filed an appeal
with the Commission under Section 951(b) of the Civil Service Act1 (Act). In so
doing, Carr asserted that the Department discriminated against her in violation of
Section 905.1 of the Act.2 The Commission scheduled a hearing on the matter.
(R.R. at 33a.)
1
Act of August 5, 1941, P.L. 752, added by the Act of August 27, 1963, P.L. 1257, as
amended, 71 P.S. § 741.951(b).
2
Added by the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.905(a). Section 905.1 of
the Act, relating to the prohibition of discrimination, provides:
No officer or employe of the Commonwealth shall discriminate against any person
in recruitment, examination, appointment, training, promotion, retention or any
other personnel action with respect to the classified service because of political or
religious opinions or affiliations because of labor union affiliations or because of
race, national origin or other non-merit factors.
3
At the hearing, Carr presented her own testimony and that of Robert
Chiappelli (Chiappelli), the Department’s Human Resources Officer. The
Department presented the testimony of Anthony Reda (Reda), its Labor Relations
Supervisor.
Carr testified that during her new-employee orientation, Department
representatives advised the new employees that off-duty conduct could negatively
affect their employment, but Carr could not recall whether the discussion involved
social media usage. (Id. at 128a-29a.) Carr testified that she never intended to crash
into a school bus, and that her frustrations with the bus driver acted as the impetus
for her Facebook post. (Id. at 120a, 122a-24a.) She asserted that her post did not
affect her ability to perform her job. (Id. at 118a-19a.) She further asserted that she
never thought her post would become such an ordeal, and she conceded that she
could see how her post could concern members of the public.
(Id. at 139a-40a, 142a.) Further, Carr also conceded that if she had the opportunity
to do it all over again, she would not have posted the rant to Facebook. (Id. at 142a.)
Chiappelli testified that he is responsible for discussing work rules and
policies at new-employee orientations. (Id. at 81a.) Chiappelli testified that, as part
of this discussion, he explains to all new employees that off-duty activities could
have an adverse effect on their employment, especially if that activity has a nexus to
the Department. (Id. at 82a-83a.) Chiappelli stated that one of the Department’s
main goals is to ensure the safety of the traveling public, and Carr’s comments
undercut that goal. (Id. at 63a.) Chiappelli agreed that Carr’s Facebook post likely
had no effect on her ability to perform her job function, but he reiterated that her
views were not in accord with those of the Department.
(Id. at 53a, 56a, 63a, 97a-98a.) Further, Chiappelli added that the Department did
4
not treat Carr any differently than other employees in a similar situation.
(Id. at 98a-99a.)
Reda concurred with Chiappelli that Carr’s behavior, not her
performance, is what led to her removal. (Id. at 157a.) Regarding Carr’s Facebook
post and its nexus to her employment with the Department, Reda testified that Carr’s
rant “gave the Department a black eye” in the eyes of the public. (Id. at 156a.)
Expounding on this premise, Reda added that if Carr acted on her threat of crashing
into a school bus, the Department could be exposed to liability for her actions. (Id.)
Reda further asserted that the Department did not treat Carr any differently than other
similarly-situated employees. (Id. at 159a.) In support of this assertion, Reda
provided examples of when the Department removed other employees for similar
inappropriate behavior. (Id. at 160a-62a.)
By Adjudication mailed on August 1, 2017, the Commission affirmed
the Department’s termination of Carr’s employment and dismissed Carr’s appeal.
(Adjudication at 21.) In so doing, the Commission explained:
Upon review of the record, the Commission finds [Carr]
has not presented sufficient evidence to support her claim
of discrimination or a violation of her First Amendment
free speech. [Carr] has not presented any evidence to
establish she was treated differently than any other
probationary employee who made disparaging remarks
bringing disrepute to the [Department] and its mission.
The Commission finds the testimony of Chiappelli and
Reda credible that [Carr’s] Facebook remarks brought
disrepute to the [Department] and raised issues of trust.
(Id. at 20.)
Carr then filed the instant Petition, invoking this Court’s original and
appellate jurisdictions. Carr’s Petition contains three separate counts, all of which
request relief in the form of this Court reversing the Adjudication and reinstating
5
Carr with back pay. Count I of Carr’s Petition challenges the Adjudication in the
Court’s appellate jurisdiction. Count II of the Petition sets forth a claim in the
Court’s original jurisdiction against the Department, alleging that the Department
violated Carr’s free speech rights under the First Amendment of the United States
Constitution and Article I, Section 7 of the Pennsylvania Constitution.3 Count III of
the Petition sets forth a due process claim in the Court’s original jurisdiction against
the Commission, alleging that the Commission failed to provide Carr adequate due
process, in violation of Article I, Section 11 of the Pennsylvania Constitution.4
Additionally, Count III seeks declaratory and injunctive relief in the form of an order
3
Article I, Section 7 of the Pennsylvania Constitution, relating to freedoms of speech and
the press, provides:
The printing press shall be free to every person who may undertake to examine the
proceedings of the Legislature or any branch of government, and no law shall ever
be made to restrain the right thereof. The free communication of thoughts and
opinions is one of the invaluable rights of man, and every citizen may freely speak,
write and print on any subject, being responsible for the abuse of that liberty. No
conviction shall be had in any prosecution for the publication of papers relating to
the official conduct of officers or men in public capacity, or to any other matter
proper for public investigation or information, where the fact that such publication
was not maliciously or negligently made shall be established to the satisfaction of
the jury; and in all indictments for libels the jury shall have the right to determine
the law and the facts, under the direction of the court, as in other cases.
Pa. Const. art I, § 7.
4
Article I, Section 11 of the Pennsylvania Constitution, relating to open courts and suits
against the Commonwealth, provides:
All courts shall be open; and every man for an injury done him in his lands, goods,
person or reputation shall have remedy by due course of law, and right and justice
administered without sale, denial or delay. Suits may be brought against the
Commonwealth in such manner, in such courts and in such cases as the Legislature
may by law direct.
Pa. Const. art I, § 11.
6
declaring that the Commission violated Carr’s due process rights and compelling the
Commission to comply with governing procedures in issuing decisions.
In response, the Commission filed an application for summary relief
seeking dismissal of Carr’s petition insofar as it attempts to set forth any original
jurisdiction claims against the Commission.5 By order dated October 23, 2017, this
Court directed the parties to address the Commission’s application for summary
relief in their principal briefs on the merits,6 and the Commission filed a brief
addressing the original jurisdiction counts to the extent that they apply to the
Commission.7 The Department did not file an application for summary relief,
although it did file a brief addressing the merits of Carr’s appeal of the Adjudication.
Similarly, Carr did not file an application for summary relief, although Carr filed a
brief addressing the Commission’s application and the merits of the appeal. Before
proceeding to the merits of the appeal, we will first evaluate the Commission’s
application for summary relief.
As previously mentioned, Count II of Carr’s Petition alleges that the
Department violated Carr’s free speech rights under the First Amendment of the
United States Constitution and Article I, Section 7 of the Pennsylvania Constitution.
In its application for summary relief, the Commission correctly avers that Count II of
5
An application for summary relief may be granted if a party’s right to judgment is clear
and no material issues of fact are in dispute. Pa. R.A.P. 1532(b). When ruling on an application
for summary relief, “we must view the evidence of record in the light most favorable to the
non-moving party and enter judgment only if there is no genuine issue as to any material facts and
the right to judgment is clear as a matter of law.” Cent. Dauphin Sch. Dist. v. Dep’t of Educ.,
598 A.2d 1364, 1366-67 (Pa. Cmwlth. 1991).
6
When referencing the parties’ principal briefs on the merits, it appears that the Court
intended to refer to the merits of the appeal.
7
The Commission is not a party to the appellate jurisdiction portion of this matter.
7
the Petition alleges violations on behalf of the Department only and does not allege
any violation on behalf of the Commission, which Carr does not dispute.
Count III of Carr’s Petition alleges that the Commission failed to
provide Carr adequate due process in violation of Article I, Section 11 of the
Pennsylvania Constitution. Specifically, Carr alleges that the Commission violated
her due process rights by failing to report its findings from Carr’s appeal hearing
within 90 days, as required by Section 952(a) of the Act.8 In support of her
argument, Carr points out that the Commission held her appeal hearing on
November 17, 2016, and did not report its findings until August 1, 2017—257 days
after the Commission’s hearing. Carr argues that this Court should read
Section 952(a) as a mandatory provision, which would serve to invalidate any
proceeding wherein the Commission fails to report its findings within 90 days. Carr
argues that reading Section 952(a) as directory permits excessive delays in the
Commission’s reporting of its findings, and such delays undercut the stated purpose
of the Act.9 In response, the Commission argues that it did not violate Carr’s due
process rights, as it avers that this Court has previously determined that the 90-day
provision in Section 952(a) is directory, not mandatory.
8
Added by the Act of June 26, 1989, P.L. 47, 71 P.S. § 741.952(a). Section 952(a) of the
Act provides: “Within ninety days after the conclusion of the hearing described in
[S]ection 951[ of the Act], the commission shall report its findings and conclusions to those parties
directly involved in the action.”
9
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-.1005. Section 2 of the
Act, 71 P.S. § 741.2, outlines the purpose of the Act and provides:
Greater efficiency and economy in the administration of the government of this
Commonwealth is the primary purpose of this act. The establishment of conditions
of service which will attract to the service of the Commonwealth qualified persons
of character and ability and their appointment and promotion on the basis of merit
and fitness are means to this end.
8
Whether the Commission’s failure to report its findings within 90 days
invalidates the proceeding depends on whether Section 952(a) is mandatory or
directory. See Fishkin v. Hi-Acres, Inc., 341 A.2d 95, 99 n.5 (Pa. 1975) (stating that
distinction between mandatory and directory statutory provisions lies in effect of
noncompliance upon transaction or proceeding involved). In West Penn Power
Company v. Pennsylvania Public Utility Commission, 521 A.2d 75
(Pa. Cmwlth. 1987), we explained the difference between mandatory and directory
statutory provisions as follows:
Whether a statute is mandatory or directory must be
determined by considering legislative intent gleaned from
review of the entire statute and from considering the nature
and object of the statute and the consequences of the
construction of it one way or the other. If the thing
directed to be done is the essence of the thing required, the
statute is mandatory. If, however, the statute merely
directs that certain proceedings be done in a certain
manner or at a certain time, it is directory. Failure to
follow a mandatory statute renders the proceedings void,
whereas failure to follow a directory statute does not.
West Penn Power Co., 521 A.2d at 78 (internal citations omitted).
In Baker v. Department of Public Welfare, 588 A.2d 1337 (Pa.
Cmwlth. 1991), this Court previously held that the 90-day provision in
Section 952(a) of the Act is directory, not mandatory. In so holding, we opined:
This Court has previously held that statutes which seek to
impose time limitations on adjudicating tribunals are
directory only. Such an interpretation is not only logical
but almost compelled because otherwise the parties would
bear the consequences for the adjudicating body’s
tardiness. In the context of this appeal this would amount
to a “deemed decision” with complete disregard for the
merit concept which forms the cornerstone of civil service
law. For example, an employee who was removed for
attacking a co-worker might need to be reinstated because
the Commission’s adjudication was not timely rendered.
9
And, from the other point of view, an employee denied a
promotion because of racial or ethnic reasons would not
be placed in the job because the Commission failed to act
promptly. Such results would clearly be contrary to the
Act’s purpose of rendering personnel decisions on the
basis of merit criteria. Accordingly, we conclude that the
ninety-day provision in Section 952(a) [of the Act] must
be read as directory and thus the adjudication is not
invalid.
Baker, 588 A.2d at 1340-41 (internal citations omitted). Accordingly, we reject
Carr’s argument that the 90-day provision in Section 952(a) is mandatory.10
We now turn to Count I, which Carr filed in our appellate jurisdiction.11
In Count I, Carr challenges the Commission’s adjudication and order affirming her
removal. In so doing, Carr essentially argues that the Commission erred as a matter
of law by concluding that her speech did not qualify as protected speech, and the
Commission should have concluded that the Department violated Carr’s
10
Despite this holding, the Court is nonetheless concerned with the extent of the
Commission’s failure to adhere to the 90-day provision found in Section 952(a) of the Act. In
promulgating this provision, the General Assembly specifically designated 90 days as its expressed
legislative intent of the reasonable time for the Commission to report its findings. Although failure
to adhere to a directory provision does not invalidate the proceedings, it “does not mean that [the
provision] is optional—to be ignored at will. Both mandatory and directory provisions of the
legislature are meant to be followed.” Dep’t of Transp., Bureau of Driver Licensing v. Claypool,
618 A.2d 1231, 1232 (Pa. Cmwlth. 1992). While the Act seeks to render personnel decisions
based on merit criteria, using nearly three times the statutorily prescribed time in order to do so
appears excessive. To that end, we note that Carr was not without a remedy. At any time after the
expiration of the 90-day window, Carr could have filed an action in mandamus to compel the
Commission to report its findings. As previously held by this Court, the purpose of “maximum
delay provisions having no deemed approval provision is to form the basis for an action in
mandamus to compel the performance of official duties.” Appeal of Crossley, 432 A.2d 263, 265
(Pa. Cmwlth. 1981).
11
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.
10
constitutional rights when it terminated her employment for engaging in protected
speech.12 In response, the Department argues that the Commission correctly
concluded that Carr’s Facebook posts were not protected speech.
At the outset, we note Carr’s status as a probationary employee and its
relevance, or lack thereof, to the issue currently before us. “It is well established
that a probationary status civil service employee does not enjoy the job security
afforded to regular status employees who may be removed only for just cause.”
Pers. Dep’t, City of Phila., v. Hilliard, 548 A.2d 354, 356 (Pa. Cmwlth. 1988).
Section 603(a) of the Act, 71 P.S. § 741.603, provides, in part, that “[a]t any time
during the probationary period, the appointing authority may remove an employe if
in the opinion of the appointing authority the probation indicates that such employe
is unable or unwilling to perform the duties satisfactorily or that the employe’s
dependability does not merit continuance in the service.” This, however, is not a
situation where Carr lost her position due to her ability or dependability. Instead,
this is a situation where the Department terminated an employee for non-merit based
activity. Although probationary status civil service employees do not enjoy the same
job security as regular status employees, they still enjoy the same constitutional
rights as their regular status counterparts. Accordingly, Carr’s status as a
probationary employee is of no consequence to the instant matter.
12
Carr’s Petition also sought to challenge four factual findings in the Adjudication, set
forth as statements, as being unsupported by record evidence. Carr’s brief provides no argument,
however, supporting these challenges. Accordingly, these issues are waived. See Tyler v.
Unemployment Comp. Bd. of Review, 591 A.2d 1164, 1167 (Pa. Cmwlth. 1991) (“When a claimant
appeals an issue, but fails to address the issue in his brief, the issue is waived.”).
11
Whether Carr’s speech is constitutionally protected is a question of
law.13 United States Supreme Court precedent has identified two inquiries to
determine the constitutional protections accorded to public employee speech. The
first requires determining whether the employee spoke as a citizen on a matter of
public concern.14 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering
v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563 (1968)).
Speech implicates a matter of public concern “if the content, form, and context
establish that the speech involves a matter of political, social, or other concern to the
community.” Miller v. Clinton Cty., 544 F.3d 542, 548 (3d Cir. 2008) (citing
Connick v. Myers, 461 U.S. 138, 140 (1983)). “In contrast, speech on matters of
purely private concern is of less First Amendment concern,” because “[t]here is no
threat to the free and robust debate of public issues; there is no potential interference
with a meaningful dialogue of ideas concerning self-government; and there is no
threat of liability causing a reaction of self-censorship by the press.” Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985) (internal
quotations omitted). When determining whether speech is of public concern, the
speaker’s motive is important but not dispositive. Azzaro v. Cty. of Allegheny,
110 F.3d 968, 978 (3d Cir. 1997).
13
Due to the lack of applicable jurisprudence from the courts of this Commonwealth, we
will rely on federal jurisprudence for guidance in analyzing the issue of public concern. Although
our Supreme Court has analyzed a similar issue in Sacks v. Department of Public Welfare,
465 A.2d 981 (Pa. 1983), the focus of the inquiry did not involve whether the speech touched on
a matter of public concern. Rather, Sacks focused on analyzing the issue of when a public
employee may be punished for speaking on a matter of public concern. Sacks, 465 A.2d at 987.
Sacks offers little in terms of guidance as to the threshold inquiry of whether speech addresses
matters of public concern.
14
Here, it is undisputed that Carr spoke as a citizen and not as an employee.
12
If the answer to the first inquiry—whether the speech implicates a
matter of public concern—is in the negative, the inquiry ends there. Garcetti,
547 U.S. at 418. Alternatively, if the answer is yes, the focus then shifts to the
second inquiry, which asks “whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the
general public.” Id. A government entity is granted broader discretion to inhibit
speech when acting as an employer, but the restrictions it imposes “must be directed
at speech that has some potential to affect the entity’s operations.” Id. In resolving
this inquiry, a court must balance the employee’s interest in engaging in free speech
with the employer’s countervailing interests, including the employer’s prerogative
of removing employees whose conduct impairs performance, concerns for the
morale of the workplace, harmonious relationships among co-workers, and the
regular operation of the workplace. Connick, 461 U.S. at 151.
With the foregoing in mind, we first must determine whether Carr’s
speech involved a matter of public concern. In asserting that her speech involved a
matter of public concern, Carr argues that she commented on the “appropriateness
and quality of local bus drivers, which is an important function of her local
government.” (Carr’s Br. at 26.) In retort, the Department labels Carr’s speech as
an expression of personal frustration with a specific bus driver, and it argues that
such speech only addresses matters of private concerns.
Here, the Commission determined that Carr’s Facebook post did not
touch on any matter of public concern. Further, the Commission noted that to
whatever extent Carr’s speech implicated a public concern, the Department’s
interests outweighed those of Carr. In so doing, the Adjudication provides:
Moreover, the Commission is at a complete loss to find
any reasonable public interest in a rant about harming
13
children or a bus driver. [Carr’s] remarks do not provide
any educational information to the public or serve to
inform them [sic] about any public matter. Furthermore,
even if the Facebook rant contains an inkling of public
interest, we find Chiappelli and Reda credible that [Carr]
presented herself as a[] [Department] employee and her
rant completely disregards the basic safety mission put
forth in its mission statement. [Carr’s] Facebook rant
caused disruption to the [Department’s] reputation and
mission that outweighed [Carr’s] interest in her free
speech. Thus, [Carr’s] Facebook rants do not constitute
protected free speech.
(Adjudication at 19-20 (internal citations omitted).)
After reviewing the entirety of the content, form, and context of Carr’s
statements, we conclude that the Commission erred in determining that her
statements did not address a matter of public concern. Although the sentiments
within Carr’s posts relating to purposefully colliding with a school bus are
reprehensible, her original post and subsequent responses show an attempt to discuss
her frustrations toward the poor driving habits of an individual entrusted to safely
transport schoolchildren. After posting her comment, Carr can do very little to
control how people will react. Carr’s subsequent posts defending her position of
crashing into a bus are largely a product of the Facebook group’s reaction to her
original statement. Had the other members of this Facebook group agreed with Carr
that school bus drivers are unsafe at times and proceeded to engage in a substantive
discussion to that end, there would be little question that her speech touched on a
matter of public concern. Instead, the Commission judged Carr on the public’s
reaction to her post, as opposed to the substance of the speech itself.
Speech that is violent and seemingly provides little to the marketplace
of ideas can still qualify as speech touching on a matter of public concern. In Rankin
v. McPherson, 483 U.S. 378 (1987), a public employee, after hearing of an attempted
14
assassination on then-President Ronald Reagan, remarked “if they go for him again,
I hope they get him” to a co-worker. Another employee overheard this remark and
informed management. The public employee was fired for this comment and
subsequently brought suit alleging a violation of her First Amendment rights. In
concluding that her speech touched on a matter of public concern, the Supreme Court
opined:
Considering the statement in context, as Connick requires,
discloses that it plainly dealt with a matter of public
concern. The statement was made in the course of a
conversation addressing the policies of the President’s
administration. It came on the heels of a news bulletin
regarding what is certainly a matter of heightened public
attention: an attempt on the life of the President. While
a statement that amounted to a threat to kill the President
would not be protected by the First Amendment, the
District Court concluded, and we agree, that [the
employee’s] statement did not amount to a threat . . . . The
inappropriate or controversial character of a statement is
irrelevant to the question whether it deals with a matter of
public concern. “[D]ebate on public issues should be
uninhibited, robust, and wide-open, and . . . may well
include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.”
Rankin, 483 U.S. at 386-87 (emphasis added) (internal citations omitted).
Even more similar to the instant case is Grutzmacher v. Howard
County, 851 F.3d 332 (4th Cir.), cert. denied, 138 S. Ct. 171 (2017). In
Grutzmacher, a paramedic for a fire department engaged in a series of Facebook
posts while watching news coverage of a gun control debate. One of the paramedic’s
posts provided: “My aide had an outstanding idea . . . lets [sic] all kill someone with
a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of
beating a liberal to death with another liberal . . . its [sic] almost poetic . . . [.]”
Grutzmacher, 851 F.3d at 338 (ellipses in original). The paramedic’s employer
15
informed him that the post violated the employer’s social media policy, and the
paramedic subsequently deleted the post. Thereafter, in another Facebook post, the
paramedic vented about the policy and his forced compliance therewith, stating “[a]ll
it took was one liberal to complain.” Id. at 339. The employer subsequently
terminated the paramedic’s employment. On appeal, the Fourth Circuit concluded
that the paramedic’s speech touched on a matter of public concern—gun control.
Here, just as in Rankin and Grutzmacher, 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.” Rankin, 483 U.S. at 387. 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 issue encompassed therein. The Commission, therefore, erred in
concluding that Carr’s speech did not touch on matters of public concern.
As we have concluded that Carr’s speech touched on a matter of public
concern, we now proceed to the second part of the analysis—balancing Carr’s
interest in engaging in her free speech with the Department’s countervailing
interests.15
As previously mentioned, if it is determined that the public employee’s
speech touched on a matter of public concern, a court must then evaluate whether
15
We note that although the Adjudication provides that the Department’s interests
outweighed those of Carr, the Commission performed no analysis in coming to such a conclusion.
16
the government employer “had an adequate justification for treating the employee
differently from any other member of the general public.” Garcetti, 547 U.S. at 418.
In so doing, a court must “balance the employee’s interest in engaging in free speech
with the employer’s countervailing interests.” Id. The Supreme Court’s public
employee First Amendment jurisprudence has provided a non-exclusive list of
factors to which a court may refer in resolving this inquiry. In Sacks, our Supreme
Court, citing to Pickering and Connick, identified the following factors:
1. Whether, because of the speech, the government
agency is prevented from efficiently carrying out its
responsibilities;
2. Whether the speech impairs the employee’s ability
to carry out his own responsibilities;
3. Whether the speech interferes with essential and
close working relationships;
4. The manner, time and place in which the speech
occurs[;]
....
5. Whether the speaker was in a position in which the
need for confidentiality was so great as to justify
dismissal for even completely accurate public
statements[;]
6. Whether narrowly drawn grievance procedures
required submission of complaints about the
operation of the agency to superiors for action prior
to taking complaints to the public[; and]
7. Whether a statement that was knowingly or
recklessly false, if it were neither shown nor could
reasonably be presumed to have harmful effects,
would still be protected by the First Amendment.
Sacks, 465 A.2d at 988-89 (internal citations omitted). Of these factors, it appears
that only the first four are pertinent here.
17
Regarding the first factor—whether the Department is prevented from
efficiently carrying out its responsibilities because of the speech—the Department
argues that Carr’s comments threatened to erode the public’s confidence in the
Department. In support of this assertion, the Department relies on the Commission’s
characterization of Carr as being “capable of violent behavior and . . . clearly putting
the bus driver and any other nearby motorists at risk.”16 (Adjudication at 18.) Using
this questionable characterization, the Department argues that Carr’s words equate
to a reasonable prediction of disruption, which would prevent the Department from
carrying out its goal of keeping the traveling public safe. This characterization and
subsequent prediction, however, is a gross extrapolation of the content of Carr’s
comments. Despite the incendiary verbiage Carr used, the main thrust of her remarks
centered on the fact that a bus driver consistently engaged in dangerous driving
habits, thus necessitating Carr to take evasive maneuvers in response. Carr’s
comments served as a verbal manifestation of her frustrations in having to do so.
Any resulting automobile accident would first be dependent on the
bus driver’s failure to drive his vehicle on the proper side of the road.
(R.R. at 26a-27a, 120a, 122a.) In order for the Department to restrict speech that
touches upon public concerns, it must direct the restriction at “speech that has some
potential to affect the entity’s operations.” Garcetti, 547 U.S. at 418. A speculative
16
The Department claims to have a reasonable belief that Carr is “capable of violent
behavior” and that her comments “directly contradicted the Department’s mission of ensuring
safety on public highways.” (Department’s Br. at 28.) We note that other than Carr’s Facebook
posts in question, the Department offered no evidence that would establish Carr as a violent person
or threat to public safety. If, however, the Department sincerely believed Carr posed a risk to the
traveling public, one would think that the Department would have done more than merely
terminate her employment. The record, however, does not reveal any other actions taken by the
Department.
18
prediction based upon a mischaracterization of Carr’s comments, however, does not
rise to the level of potentially affecting the Department’s operations.
Looking to the second factor, we consider whether Carr’s speech
impaired her ability to carry out her own responsibilities. At the hearing, both
Chiappelli and Carr testified that Carr’s comments did not affect her ability to
perform any of her core job functions. (R.R. at 60a-61a, 116a-17a.) Accordingly,
this factor must weigh in favor of Carr’s interest in engaging in protected speech.
Similarly, the third pertinent factor—whether Carr’s speech interfered
with essential and close working relationships—also weighs in Carr’s favor. At the
hearing, Carr testified that her comments produced no adverse effects with her
working relationships. (Id. at 117a-18a.) Chiappelli testified to the same, stating
that he was not aware of any strained work relationships because of Carr’s posts or
subsequent removal. (Id. at 55a.)
Finally, we analyze the time, place, and manner in which Carr’s speech
occurred. As mentioned, Carr’s original post and subsequent responses occurred on
Facebook while she was off-duty and at home. The Department argues that Carr’s
use of social media causes this factor to weigh heavily in favor of the Department
due to the broad audience that her comments reached. Further, the Department
points to the fact that the place and manner in which Carr made her speech caused
three individuals to report her to the Department’s official Facebook page, which
served to diminish the public’s perception of the Department. While we agree that
the resulting complaints are concerning, we also note the audience to which Carr
spoke. The Facebook group to which Carr posted her comments, “Creeps of Peeps,”
is a group consisting of over 1,300 individuals from all over the world. (Id. at 133a.)
At her pre-disciplinary conference, Carr intimated that she did not intend to post her
19
comments to that group and expressed uncertainty as to how its members saw her
post. (Id. at 27a.) If Carr sought to discuss her concerns about a local bus driver,
logic would dictate that a forum with members spanning the globe might not be the
most effective arena in which to address these concerns and conduct a meaningful
discussion. As such, this factor weighs in favor of the Department, albeit slightly.
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.
Sacks, 465 A.2d at 988. Here, the Department has not shown that its concerns rise
to anything more than speculative.
Accordingly, we grant the Commission’s application for summary
relief as to the original jurisdiction claims against it and dismiss the Commission
from this matter. As to the appellate jurisdiction portion of this matter, we reverse
the Commission’s Adjudication and remand the matter to the Commission with
instruction that it reinstate Carr to her probationary status and that it exercise its
discretion under Section 952 of the Act with regard to payment of salary or lost
20
wages.17 Count II of the Petition, which purports to assert a claim against the
Department in this Court’s original jurisdiction, remains pending before this Court.18
P. KEVIN BROBSON, Judge
17
Section 952 of the Act, pertaining to remedies, provides, in part:
(b) Where such decision is in favor of the employe or the aggrieved person,
the commission shall make such order as it deems appropriate to assure such rights
as are accorded the individual under this act.
(c) In the case of any employe removed, furloughed, suspended, or demoted,
the commission may modify or set aside the action of the appointing authority.
Where appropriate, the commission may order reinstatement, with the payment of
so much of the salary or wages lost, including employe benefits, as the commission
may in its discretion award.
18
The Court hopes that this matter will serve as a cautionary tale to public and private
sector employees regarding the pitfalls of social media. A discussion on social media is not
transient. Indeed, although a user may delete a social media post from her personal page, modern
technology can propel the post into a state of abject permanence on the Internet. Even when
posting to the Internet anonymously, a user’s identity is far from exempt from subsequent
discovery and disclosure. See Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 461-62
(3d Cir. 2015). Private employers exercise wide latitude in terminating employees for their social
media posts. Fortunately for Carr, her employer’s ability to react is constrained by rights afforded
her under the United States and Pennsylvania Constitutions. Regardless, individuals should
exercise great caution in posting to social media and always assume that social media posts can be
viewed by the public, including current or future employers.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rachel L. Carr, :
Petitioner :
:
v. : No. 380 M.D. 2017
:
Commonwealth of Pennsylvania, :
Department of Transportation and :
Commonwealth of Pennsylvania, :
State Civil Service Commission, :
Respondents :
ORDER
AND NOW, this 12th day of June, 2018, it is hereby ordered that the
application for summary relief filed by the State Civil Service Commission
(Commission) as to the original jurisdiction claims against it is GRANTED, and the
Commission is DISMISSED from this matter. It is further ordered that the
Commission’s adjudication and order is REVERSED, and the appellate jurisdiction
portion of this matter is REMANDED to the Commission with instruction that the
Commission reinstate Rachel L. Carr (Carr) to her probationary status and that the
Commission exercise its discretion under Section 952 of the Civil Service Act, Act
of August 5, 1941, P.L. 752, added by the Act of June 26, 1989, P.L. 47, 71 P.S.
§ 741.952, with regard to payment of salary or lost wages. Count II of Carr’s petition
for review, which purports to assert a claim against the Commonwealth of
Pennsylvania, Department of Transportation in the Court’s original jurisdiction,
remains pending before this Court.
Jurisdiction relinquished with regard to the appellate portion of this
matter.
P. KEVIN BROBSON, Judge