Crystal Dixon is an African American woman who was formerly employed as an Associate Vice President for Human Resources at the University of Toledo in Toledo, Ohio. She had been employed by the University in increasingly responsible positions over a six-year period.
In 2008, Dixon read an editorial in the local newspaper, the Toledo Free Press, with which she disagreed. In it, the Editor-in-Chief of the newspaper compared the civil rights movement with the gay rights movement, expressing sympathy for the gay rights struggle. The author then focused on a purported denial of healthcare benefits to same-sex couples at the University.
In response, Dixon submitted her own Op-Ed column, which was printed. It expressed her personal opinions, and did not identify her official position at the University. In her Op-Ed, Dixon expressed the position that being African-American was permanent and unchangeable, whereas being gay was a choice. She commented on the University health care issue, noting, “the university is working diligently to address this issue in a reasonable and cost-efficient manner, for all employees, not just one segment.”
A month later, Dixon was fired. The letter noted that the public position she took contradicted University policy and caused loss in confidence in her as an administrator.
In court, Dixon claimed that the University fired her in retaliation for her protected speech, in violation of the First Amendment. It should be noted that this case involved First Amendment protections because Dixon was an employee of a state university. She, like employees of the Federal government, was a public employee. A public employee’s speech enjoys First Amendment protection when two factors occur: (1) the speech must involve “a matter of public concern,” and (2) the speaker’s free speech interests outweigh the governmental entity’s interests as an employer.
The parties agreed that Dixon’s Op-Ed involved a matter of public concern. So the question was whether Dixon’s free speech interests outweighed the University’s interests as an employer. The University argued that its interests as an employer were greater, because Dixon was a policymaking employee who was discharged because of speech related to her policy views. In contrast, Dixon argued that she never said the University’s policies were wrong or should not be enforced. She pointed to her years of success in implementing the University’s policies.
One University official testified in his deposition that he knew of Dixon’s personal opinions prior to the publication of the article, and that those opinions never had any adverse effect on Dixon’s ability to perform her job at the highest level. Nevertheless, it was his view that by expressing those opinions in public, she was no longer able to do her job.
The court agreed with the University, concluding that Dixon fell into a category of policymaking positions that have been delegated significant discretionary authority to carry out the institution’s policy goals. Dixon had authority to hire and fire. Her job description required her to recommend, implement and oversee University policy. It also gave her authority to represent the University before the EEOC and the Ohio Civil Rights Commission.
The court also agreed that Dixon was discharged because her speech was related to her policy views. The University’s strategic plan relied on a commitment to diversity “in all its dimensions.” The University’s anti-harassment policy protected sexual orientation and gender identity. The University had also recently enacted a “safe places program” that encouraged faculty and staff to open their workspaces to be safe places for LGBT individuals.
The court rejected Dixon’s argument that she never said the University’s policies were wrong or should not be enforced. In the court’s view, her op-ed exposed her view that gays are not entitled to the same protections as those who participated in the civil-rights movement. This went against the University’s policies and thus removed her speech from First Amendment protection. Dixon v. University of Toledo, No. 12-3218 (6th Cir. Dec. 17, 2012).
Arguably, this decision stands for the proposition that in balancing public employer and employee rights under the First Amendment, courts are finding a public employer’s commitment to non-discrimination based on sexual orientation as an important enough interest that the public employer can take action against an employee whose conduct, based on her anti-gay beliefs, threatens to undermine the employer’s non-discrimination policy. On the other hand, Dixon was expressing an unpopular, conservative opinion, and civil libertarians should be concerned when an otherwise fully qualified public employee is terminated for expressing views that are not “politically correct.”
The law firm of Kalijarvi, Chuzi, Newman & Fitch aggressively protects the rights of individuals whose employment may be in jeopardy based on expressing their views.
– partner Elizabeth L. Newman contributed this blog post. You can reach her at enewman@kcnlaw.com.