Deshenie v. Board of Educ. of Central Consolidated Sch. Dist. No. 22, No. 05-2270 (10th Cir. Jan. 22, 2007)

The U.S. Court of Appeals for the Tenth Circuit has ruled that a former New Mexico school district employee did not state a valid First Amendment retaliation claim, because she failed to establish that certain instances of her speech were protected and that those that were protected were causally related to the adverse employment actions taken by the school board. Quintina Deshenie was employed by Central Consolidated School District No. 22 (CCSD) as Director of Indian Education and Bilingual Education. After the school board president, Randy Manning, criticized the bilingual education program during an administrators’ retreat, Ms. Deshenie spoke to Mr. Manning about her disagreement with his proposals, and followed up with a letter to him expressing her own concerns about the program and her suggested improvements. She later spoke at an Indian Education Meeting about her concerns that the program failed to comply with state standards and was not being adequately supported by CCSD. She also wrote a guest column for a local newspaper stressing the importance of bilingual education and the need for increased support from district officials and the community; the column identified her position with CCSD and was approved by the superintendent. Four months later, Ms. Deshenie sent a thank you e-mail message to the editor of the newspaper for publishing an editorial praising Native American education in the schools. In the e-mail, she commented on the difficulty of her job "when the powers-that-be knock the job." Although she did not intend for this e-mail to be published, the paper ran it as a letter to the editor without CCSD approval, for which the school board reprimanded her. Around this time, evidence began mounting that Ms. Deshenie’s job performance was slipping, leading the superintendent to split her duties into two separate positions, Indian Education Coordinator and Bilingual Education Coordinator, and to assign her to the latter position. After failing to complete several tasks on time, Ms. Deshenie was terminated. She sued CCSD in federal district court, alleging retaliation for exercising her First Amendment free speech rights. The district court granted CCSD’s motion for summary judgment in the case, determining that (1) the first two instances of Ms. Deshenie's speech were unprotected as a matter of law; (2) the next two instances were not substantial factors in any adverse employment action taken by the school board; and (3) the fifth instance of speech involved matters of public concern but nevertheless was unprotected.

The Tenth Circuit affirmed. Relying on principles established in Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), and Connick v. Myers, 461 U.S. 138 (1983), for determining whether a public employer has retaliated against a public employee in violation of her free speech rights, the appellate court applied a four-part test. It assumed for purposes of the appeal that the speech was on a matter of public concern and that the employee’s interest in commenting on the matter publicly outweighed the employer’s interest in promoting the efficiency of the public services it performs through its employees. However, the court found Ms. Deshenie had failed to demonstrate that "the exercise of constitutionally protected speech was a substantial motivating factor in the employer's decision to adversely alter the employee's conditions of employment." The length of time between the protected speech and the termination, along with her intervening poor job performance, were insurmountable barriers to this showing, the court found, noting that an inference of retaliatory motive may be undermined by a lengthy delay or evidence of intervening events.

Turning to the e-mail to the editor, the Tenth Circuit assumed that it addressed a matter of public concern but concluded that Ms. Deshenie’s interest in speaking, while significant, was not overwhelming. Given that she was speaking as a public official about a matter she was in charge of, the manner in which she spoke increased the potential for disruption. By going outside internal channels and airing her concerns publicly without school district approval, the court found, Ms. Deshenie had chosen a means of addressing the controversy that had a greater potential for disruption than other alternatives. As a result, the e-mail letter to the editor did not "merit First Amendment protection for purposes of the reprimand and position reclassification."