Comments About Gays Not Protected Speech

Loudesia Flanagan was a records specialist for the Richmond, California Police Department. Over her tenure, Flanagan received numerous positive performance evaluations, but her career was also marked by disciplinary actions and complaints. On September 16, 2004, December 27, 2004, and January 5, 2005, Flanagan received separate reprimands for leaving work without permission, failing to follow sick leave reporting procedures, and insubordination. In July 2006, Flanagan received a three-month pay reduction for making false and misleading statements to a supervisor.

In 2013, Flanagan made a number of negative comments about a volunteer who was a lesbian. Flanagan commented that the volunteer “won’t be going to heaven then because God does not like gays.” Flanagan was heard inquiring about which bathroom the volunteer used, and making multiple comments such as “Chief Magnus is cultivating a gay environment” and “God made Adam and Eve, not Adam and Steve.”

The City eventually terminated Flanagan, concluding that she was discourteous and disrespectful to the volunteer, created a hostile work environment by speaking openly about her dislike for and bias towards homosexuals, and was untruthful during her interview when she denied making discriminatory comments. Flanagan did not help her cause when she sent an email to a deputy chief suggesting that the chief was in the “enemy’s camp” and stated she had “no faith in our chief’s ability to be right and fair.”

Flanagan filed a federal court lawsuit contending that the City terminated her employment “as a direct result of her expressing her religious beliefs about gay marriage.” A federal court found Flanagan’s statements unprotected by the First Amendment.

The Court observed that Flanagan’s statements “were not simply expressions of disagreement with homosexuality, but were inflammatory and condemning of specific individuals like the volunteer. Thus, these comments were comparable to speech on which the courts have permitted restrictions.

“Furthermore, there is no evidence that the City has unconstitutionally interfered with Flanagan’s religious beliefs. Flanagan does not explain how the City’s actions would unduly burden her religious beliefs. The termination of Flanagan’s employment was based not on her religious beliefs, but on whether her inflammatory comments about homosexual lifestyles was a violation of the City policies. This policy, restricting her expression of beliefs, does not hinder her religious beliefs themselves.”

Flanagan v. City of Richmond, 2015 WL 5964881 (N.D. Cal. 2015).