Gilbert v. Flandreau Santee Sioux Tribe

• Citation: 2006 SD 109,725 N.W.2d 249
• Decision Date: 29 November 2006
• Docket Number: No. 23733.,23733.
• Parties: Helen GILBERT, Plaintiff and Appellant, v. FLANDREAU SANTEE SIOUX TRIBE, Defendant and Appellee.
• Court: South Dakota Supreme Court

725 N.W.2d 249

2006 SD 109

Helen GILBERT, Plaintiff and Appellant, v. FLANDREAU SANTEE SIOUX TRIBE, Defendant and Appellee.

No. 23733.

Supreme Court of South Dakota.

Argued on October 4, 2006.

Decided November 29, 2006.

COPYRIGHT MATERIAL OMITTED

Todd D. Epp of Todd D. Epp Law Office, P.L.L.C., Harrisburg, South Dakota, Attorney for plaintiff and appellant.

Rollyn H. Samp of Samp Law Firm, Sioux Falls, South Dakota, Attorney for defendant and appellee.

MEIERHENRY, Justice.

[¶ 1.] Gilbert was denied unemployment insurance (UI) benefits after a referee determined she had been terminated for work-related misconduct under SDCL 61-6-14.1. Gilbert claimed the South Dakota Department of Labor Unemployment Insurance Division's (Department) denial violated her state and federal constitutional rights of free speech. The circuit court affirmed the denial and Gilbert appeals. We affirm.

FACTS

[¶ 2.] Helen Gilbert (Gilbert) was employed by the Flandreau Santee Sioux Tribe (Tribe) as an education coordinator from November 13, 2000 to August 10, 2004. Gilbert supervised a federal wellness program for grades 7-12. Gilbert's discharge was based on a letter she wrote to the Tribal Executive Committee in reference to the committee's political appointment of Donalda "Neldie" Montoya (Montoya) to the Office of Tribal Secretary, an office also sought by Gilbert. The letter sharply criticized Montoya's appointment. Gilbert's complaint about Montoya stemmed from an earlier incident concerning defamatory statements Montoya allegedly had made about Gilbert.

[¶ 3.] After learning of Montoya's appointment and before writing the letter, Gilbert telephoned Montoya. In the phone call, Gilbert told Montoya that she was going to "sue her for slander for the statement she made in May, and that she should write this conversation date and time down and let ... her supervisor know."

[¶ 4.] After the phone call, Gilbert wrote a letter during work hours on tribal stationery to the Tribal Executive Committee. The heading of the letter indicated that it was to the Flandreau Santee Sioux Tribe from Helen Gilbert, education coordinator, in reference to "8/10/04 Incident-Neldie Montoya appointment as FSST Secretary." The letter began with the following paragraph:

I received a phone call at approximately 2:00 pm on from an employee who stated that they were just told that Neldie Montoya has just been appointed as Secretary for the tribe. Neldie, during the election petition process had stated to Elizabeth Shortman that the Council was going to block my nomination based on allegations that I was charged as a prostitute. The knowingly false charge such as this sent me over the edge. I have never received any follow up after I complained about Neldie's statement.

Additionally, the letter criticized the tribal chairman of neglect of duty as follows:

[He is] unwilling and neglectful in upholding the duties of Tribal Chair by not managing the problems that fall within the purview of his office. Problem employees literally get away with murder, employees who are vocal and know their rights are persecuted.

She then went on to name several other employees who she thought were problem employees and pointedly accused the employees of such things as "violent, hysterical public performances," "violence in the workplace," "violation of the political activity policy," "embezzlement," drug and alcohol violations, and incompetence.

[¶ 5.] Before sending the letter, Gilbert had her supervisor review it. When asked whether her supervisor okayed the letter, Gilbert stated, "her only reaction or statement was, `oh my God, Helen,' that was it." As a result of sending the letter to the executive committee, the Tribe decided to suspend Gilbert for violating the political activity policy.¹ Gilbert was admittedly aware of the policy but felt that writing the letter was within the parameters of her employment and refused to accept the suspension order. The Tribe subsequently terminated Gilbert's employment.

[¶ 6.] As a result, Gilbert filed for UI benefits with the Department on September 2, 2004. The Department initially determined that the conditions of Gilbert's termination did not disqualify her from receiving UI benefits. The Tribe appealed the Department's determination.

[¶ 7.] Gilbert claimed that she wrote the letter to the tribal council in her capacity as education coordinator and followed the chain of command before submitting it. After a hearing on the matter, the referee denied Gilbert UI benefits based on a finding that she had been discharged for work-connected misconduct as defined by SDCL 61-6-14.1.² The referee specifically found that Gilbert was aware of the Tribe's political policy, that she wrote a letter to the executive committee on tribal stationary while she was at work, that the letter was critical of the tribal chairman and other tribal employees and that her conduct violated the Tribe's political activity policy. Gilbert appealed the referee's decision to circuit court.

[¶ 8.] On appeal, Gilbert did not claim that the referee's findings were clearly erroneous. Gilbert's only contention was that she could not be denied UI benefits based upon work-connected misconduct, i.e. violation of the political activity policy, because of her constitutional right to freedom of speech. The circuit court noted that the basic facts were not in dispute, that there was no question that Gilbert's letter violated the political activity policy and that she violated the policy during working hours utilizing tribal stationery. The circuit court affirmed the referee's decision and concluded that there was no violation of Gilbert's constitutional right to freedom of speech. Gilbert appeals the decision claiming that her letter to the tribal council is constitutionally protected free speech for which she cannot be disqualified from receiving UI benefits.

DECISION

[¶ 9.] The Tribe's reason for dismissing Gilbert was that the letter she wrote to the Tribe allegedly violated its political activity policy.³ Gilbert does not dispute that she wrote the letter on tribal stationery during work hours using tribal equipment. In fact, she does not appear to dispute the referee's and trial court's conclusions that her actions and complaints violated the Tribe's policy. Consequently, the only issue before us is whether her federal or state constitutional right to freedom of speech protects her from being denied UI benefits.

[¶ 10.] This Court has never analyzed the First Amendment right to free speech in the context of a state's denial of UI benefits. The United States Supreme Court has, however, recognized that the First Amendment protects religious freedom in the context of UI benefits. In Sherbert v. Verner, the Court found that a claimant's refusal to work on her faith's Sabbath day was protected and could not serve as a basis for denying UI benefits. 374 U.S. 398, 403-04, 83 S.Ct. 1790, 1793-94, 10 L.Ed.2d 965 (1963). Additionally, the Court has long recognized a public employee's protection of freedom of speech in cases of discharge from employment. As recently stated in Garcetti v. Ceballos, "It is well settled that `a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression.'" ___ U.S. ___, ___, 126 S.Ct. 1951, 1955, 164 L.Ed.2d 689 (2006) (quoting Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983)). "[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Id. Thus in determining whether Gilbert can be denied UI benefits, we follow the method of inquiry set forth by the United States Supreme Court. The Court identifies two inquiries that guide a constitutional analysis as follows:

Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.

Id. (citing Pickering v. Board of Ed. of Tp. High School Dist. Will. Co., Ill., 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick, 461 U.S. at 147, 103 S.Ct. at 1690).

[¶ 11.] Accordingly, our first inquiry is whether Gilbert spoke "as a citizen on a matter of public concern." Id.; see also Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987); State v. Springer-Ertl, 2000 SD 56, ¶¶ 16-17, 610 N.W.2d 768, 773. The employee bears the initial burden of demonstrating that the speech involves matters of public concern. See Connick, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708. The United States Supreme Court defined public concern "as relating to any matter of political, social, or other concern to the community." Id. at 146, 103 S.Ct. at 1690. In evaluating whether statements are a matter of public concern, we look to their content, form, and context, as revealed by the entire record. Rankin v. McPherson, 483 U.S. 378, 385, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987). An employee acting "as a concerned citizen interested in bringing problems to light more likely raises a...