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Facebook Post About Workplace Odor May Pass the First Amendment Smell Test


April 26th, 2021

An Indiana federal court recently refused to dismiss a school employee’s lawsuit against her school district after she was disciplined and transferred to a new job for complaining to her principal, filing a com­plaint with the Indiana Occupational Safety and Health Administration (IOSHA), and posting on Facebook about an odor in a school building. Trinidad v Sch E Chi, Case No 2:19-CV-90 (ND Ind, 2021). Although not bind­ing on Michigan courts, this Indiana decision may be instructive in a similar Michigan lawsuit.

Shirley Trinidad, a paraprofessional, smelled a chemical odor in a McKinley Elementary School class­room, the school in which she worked. The odor report­edly made her feel lightheaded and caused her eyes to burn. After the odor persisted for a week, she notified her principal and filed a complaint with IOSHA, alleging that the odor caused an unsafe work environment.

Trinidad told the principal that he should close the school and notify parents about the odor. The principal did not respond. Trinidad then posted the following on Facebook:

ATTENTION!!!! If you have children attending McKinley School, please be aware that there is a terrible chemical odor lurking throughout the building. Many children and staff had (sic) gotten sick. Vomiting, dizziness and headaches, burning eyes and achy chest are some of the symptoms.

The district suspended Trinidad for five days with pay and instructed her to remove the post. Trinidad was transferred to a job at the district’s high school and was later assigned to work with preschool children. Trinidad alleged that she did not receive training for either job. After a few months, she was transferred back to her position at McKinley Elementary School.

Trinidad filed a collective bargaining agreement (CBA) grievance relating to her transfer to the high school. She also sued the district and several district of­ficials, alleging that the defendants retaliated against her in violation of the CBA and her First Amendment right to free speech.

The defendants asked the court to dismiss the claims. They argued that the court could not consider Trinidad’s CBA claim because Trinidad did not exhaust the CBA’s grievance procedure, including arbitration. While the court dismissed Trinidad’s CBA claim, it did not dismiss her First Amendment retaliation claim.

To establish a First Amendment retaliation claim, a public employee must prove that (1) the employee’s speech is protected by the First Amendment, (2) the employee suffered a deprivation likely to deter pro­tected speech, and (3) the deprivation was at least partly motivated by the protected speech. A public em­ployee’s speech is protected under the First Amend­ment if: (1) it was not made pursuant to the employee’s job duties (i.e., it was not made on the job), (2) it ad­dresses a matter of public concern, and (3) the em­ployee’s interest in expression outweighs the state’s interests as an employer in promoting effective and efficient public service.

The court ruled that Trinidad’s Facebook post was not made pursuant to her job duties because it occurred outside of the workplace, outside of work hours, and district resources were not used to make the post. While Trinidad’s post was related to her employment, the speech did not discuss Trinidad’s duties but, rather, her workplace conditions.

The district and school officials did not dispute that Trinidad’s speech was a matter of public concern. As for the balancing test, school officials argued that the First Amendment did not protect Trinidad’s speech because she lied about the odor making people sick. Under U.S. Supreme Court precedent, if an employer takes action against an employee for speech that the employer, based on an adequate investigation, reasonably be­lieves is false, the employer’s interests outweigh the speaker’s interests. Also, employee speech may not warrant protection if it is made with knowing or reck­less disregard for the truth. The court ruled that the dis­trict and its officials failed to establish that Trinidad lied or acted with reckless disregard for the truth, because the district did not investigate the claimed odor.

The defendants also argued that Trinidad’s suspension and temporary transfer did not amount to a deprivation because it did not materially alter her em­ployment. The court disagreed, concluding that a reasonable jury could determine that the suspension and transfer to a less desirable position, for which Trinidad was not trained, were deprivations deterring free speech. Because a reasonable jury could conclude that the defendants violated the First Amendment, the court denied the defendants’ request to dismiss the lawsuit.

Before disciplining an employee for off-campus social media use, school officials should carefully ana­lyze the particular facts to determine whether First Amendment protections extend to the employee’s speech. We encourage school officials to contact legal counsel before disciplining an employee for a social me­dia post. Free speech principles are complex and highly fact-specific, and constitutional deprivations may result in individual administrator liability.