Complaints About Bosses Not Constitutionally Protected

Two San Bernardino, California Police Department sergeants filed a federal court lawsuit alleging they had been retaliated against for submitting complaints about their supervisors through the chain of command. The complaints, which took the form of a formal grievance, alleged that supervisors were autocratic, controlling, manipulative, created a hostile work environment, embarrassed the Department, and generally impaired the functioning of the Department.

A deeply divided federal Ninth Circuit Court of Appeals found that the sergeants’ complaints were not protected by the First Amendment because they were not a matter of public interest. The Court characterized the complaints as a “personality dispute” which was “largely devoid of reference to matters we have deemed to be of public concern. There are no allegations of conduct amounting to actual or potential wrongdoing or breach of public trust. One can read the grievances and conclude that one supervisor was arrogant, another was irreverent, and two other disagreed with the sergeants’ assessment of their lieutenants, but that does not mean they were incompetent, and it certainly does not mean that they were malfeasant.”

The Court also relied on the fact that “there are no accounts of failed law enforcement efforts, nor descriptions of botched investigations, and no discussions of duties the Department was unable to perform in a competent fashion due to the actions of the sergeants’ supervisors. Rather, the sergeants complain about their superiors’ personalities, and the grievances amount to a laundry list of reasons why the sergeants and perhaps other employees found working for their supervisors could be an unpleasant experience. In short, they thought their boss was a bully and said so. But when working for the government, saying one’s boss is a bully does not necessarily a constitutional case make.

“The content of the communication must be a broader societal concern. Our focus must be on whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance. On the facts of this case, we cannot say that the public would be truly interested that two police sergeants believe their supervisor was a micromanager, autocratic and controlling, or even that he dressed them down in front of their colleagues and neighboring police forces.”

A dissenting judge wrote a fairly vociferous opinion, citing the fact that numerous decisions from the Ninth Circuit “provide relevant examples of protected speech that concerns the performance, functioning, and mismanagement of government agencies. Issues of performance, discipline, and morale in public safety agencies are especially matters of public concern, given the direct impact of such entities on the well-being of the public.”

Desrochers v. City of San Bernardino, 572 F.3d 703 (9th Cir. 2009).

This article appears in the November 2009 issue