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Public Employee Loses Retaliation Claim Arising Out of In-Court Testimony

A former public employee lost her First Amendment retaliation claim as a federal appeals court ruled that her in-court testimony did not address matters of public concern but were more personal.

The appeals court rejected the argument that speech in court is inherently a matter of public importance.

Candice Baird worked for the Hamilton County (Ohio) Department of Job and Family Services as a children services manager, supervising caseworkers and ensuring they knew the department’s child-welfare policies.

However, Baird ran into problems regarding her adult son, Chico, who suffers from schizophrenia disorder and other psychiatric issues. A neighbor of her son called Baird, reporting loud noises. Chico was babysitting his infant daughter, N.C., by himself. N.C. normally resided with her mother and Baird.

Baird called a psychiatric response team which in turn contacted police after they found Chico distraught and possibly suicidal. A social worker reported the incident to Baird’s employer. An investigator from a neighboring county requested an emergency order to remove N.C. from Baird’s home.

A magistrate granted the investigator’s emergency order. A few days later Baird petitioned for custody of N.C. At a court hearing, the magistrate heard conflicting evidence from Baird and the investigator. The magistrate ultimately denied Baird’s request, determining that Baird failed to appreciate the potential danger that Chico posed to N.C.

The Department of Job and Family Services then suspended Baird for 10 days, finding that she failed to appreciate the danger Chico posed to his daughter. Baird then sued, claiming that she was suspended in retaliation for her testimony at the court hearing.

During the discovery phase of the lawsuit, the Department of Job and Family Services discovered that Baird had secretly recorded a meeting with department personnel — a violation of employment policy. The department then terminated Baird.

A federal district court granted summary judgment to the defendants. On appeal, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the district court ruling its April 14, 2020 decision in Baird v. Hamilton County Department of Job and Family Services.

The appeals court panel rejected Baird’s retaliation claim, reasoning that she did not engage in speech on a matter of public concern, a prerequisite in a public employee First Amendment speech claim. Instead, the panel reasoned that her testimony primarily was “a matter of personal interest, not one of public concern.”

Baird argued that her in-court testimony is per se speech on a matter of public concern, citing the U.S. Supreme Court’s decision Lane v. Franks (2014). In that decision, the court ruled that a public employee fired for revealing financial improprieties and corruption did speak on a matter of public concern.

However, the Sixth Circuit panel emphasized that Baird’s testimony was related to her goal of “securing custody of her granddaughter,” not something of greater interest to the public.

The decision shows that public employees cannot assume that all court testimony will be considered a matter of public concern in retaliation cases.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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