Complaints About Discrimination Not Necessarily Protected By First Amendment

James Brooks and Donald Hamlette were employees of the Virginia Department of Corrections. Brooks was a senior corrections officer, supervised by Hamlette, a lieutenant. Hamlette is African-American and a Baptist minister. Both men reported to Howard Arthur, the Superintendent, and Major Randal Mitchell, the Assistant Superintendent.

Brooks met with the Department’s Equal Employment Opportunity office to discuss filing a discrimination charge against Arthur. Among other things, Brooks reported that Mitchell embarrassed him by reprimanding him in front of inmates in violation of Department policy. After this meeting, Arthur called Brooks into his office to discuss his complaints and Brooks’s decision to take them to a higher level in the chain of command.

At the same time, Hamlette also began pursuing proceedings against Arthur and Mitchell. On April 21, 2006, he filed an EEO complaint alleging that Arthur and Mitchell discriminated against him on the basis of race and religion. He complained that, as the only African-American lieutenant in the unit, he was treated differently from the other officers. Hamlette alleged incidents including additional unwarranted security checks during his shift, an insinuation that Hamlette would not have reported a disciplinary violation involving an inmate with a cell phone, the more lenient disposition of disciplinary charges against an inmate who was disrespectful to Hamlette, and the selection of Hamlette for less-advantageous duty assignments in the prison kitchen. Hamlette named Brooks as a potential witness to these allegations.

One day before witness responses were due to the EEO, Arthur issued termination notices to Hamlette and Brooks for disciplinary violations that Arthur observed during a monthly security inspection of the unit. These notices alleged that Brooks and Hamlette failed to staff posts as required and falsified inmate count records. Brooks and Hamlette challenged their terminations with the Department’s Office of Employment Dispute Resolution, which reduced the severity of the charges, limited the punishment to ten-day suspensions, reinstated both men’s employment, and awarded them back pay.

Brooks and Hamlette then filed a lawsuit in federal court, alleging that the discipline was in retaliation for their initiation of and participation in the EEO process, and thus was barred by the First Amendment.

The Court held that the first question was whether the speech addressed a matter of public concern. The Court noted that “the Supreme Court has expressed skepticism that speech in the context of an employment grievance proceeding addresses a public concern meriting constitutional protection,” and that a “petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context.”

The Court found that Hamlette’s speech “pertained to personal grievances and complaints about conditions of employment rather than broad matters of policy meriting the protection of the First Amendment. Hamlette’s EEO complaint focuses on personal dissatisfactions that are not matters of public concern. Indeed, his complaint is replete with I’s and me’s. While Hamlette undoubtedly – and perhaps justifiably – felt slighted by some of the alleged conduct, a purely personal grievance is not a matter of public concern.”

The Court found that “it is quite relevant that Hamlette chose to make these comments in the context of the EEO process. In contrast to a letter to a local newspaper, Hamlette’s speech through an internal grievance procedure demonstrates that he did not seek to communicate to the public or to advance a political or social point of view beyond the employment context. An employee like Hamlette who seeks primarily resolution of his personal situation through an employer-provided grievance process simply does not speak with the civic intent necessary to invoke the First Amendment.

“Private matters between employers and employees may be the subject of internal controversy, but whether someone’s sense of fair play is offended is not the constitutional inquiry. If favoritism crosses a line to the point that imperils the public welfare then the public would rightly be concerned about the matter. But if favoritism pertains primarily to a single individual, that is not an issue of constitutional dimension.”

Brooks fared no better with the Court, which held:“This analysis applies with equal force to Brooks’ allegations of favoritism, which are of a similarly individualized nature to those of Hamlette. Brooks additionally claims that he was entitled to First Amendment protection because he was named as a potential witness in Hamlette’s EEO complaint. This contention is also without merit. Having determined, as discussed above, that Hamlette’s complaint was intended solely to address his personal grievances and not any matters of public concern, Brooks’ involvement in that complaint does not give rise to a First Amendment claim.”

Brooks v. Arthur, 685 F.3d 367 (4th Cir. 2012).