Snarky e-mail gets employee fired
Nothing gets the blood flowing like an office brouhaha.
Who messed up? Who’s got the inside track on that promotion? And what’s the deal with Phyllis in accounting?
What gets me is how each and every one of us is smarter than our bosses. Gee, what are the odds of that?
Most is harmless chatter, but there are lines that you do not cross. A California law librarian just learned that lesson the hard way.
Michael Kaye worked for the San Diego County Public Law Library. A reference librarian, Kaye also taught the library’s appellate course for self-represented litigants.
The final chapter of Kaye’s tenure with the library began innocuously enough.
In February 2006, he accepted an invitation to be a panel member for a judicial conference about helping pro se litigants with appeals.
Kaye’s boss, Joan Allen-Hart, raised a stink because the invitation wasn’t routed through her desk. In turn, Kaye became miffed because Allen-Hart had raised questions about the matter, so he rescinded his invitation to the conference.
The stage was set for Kaye to take the misstep that ended his job.
Allen-Hart sent an e-mail to Kaye and other librarians setting the agenda for an upcoming staff meeting.
Still nursing bruised feelings over the conference flap, Kaye used the e-mail to vent his feelings.
In a lengthy response e-mail, which he copied to his coworkers, Kaye complained that the library’s management regarded its reference librarians as “fungible and disposable peons.”
He proceeded to take pot shots at Allen-Hart’s management style, describing certain aspects as being “hypocritical.” He complained of her having a “hand-down-the-law approach” that “smacks of autocracy.”
After an aside to what he considered wasteful and extravagant spending at the library, Kaye got down to the heart of his displeasure, characterizing Allen-Hart’s inquiry into his judicial conference invitation as being humiliating and vindictive. He suggested that the inquiry “was really a pretext for some other hidden agenda,” speculating that Allen-Hart and another supervisor were looking for a reason harass him into early retirement.
After making thinly veiled accusations of misconduct by library management, Kaye concluded by asserting that he and his colleagues “work under an autocratic command structure and that reference staff meetings do not really serve much purpose.”
With a flourish, he proclaimed, “Let the managers make their decisions without any pretense of collaboration and hand down their fiats from on high.”
Now, we can all be sure that Kaye was the toast the librarians’ lounge that week, lots of atta-boys and you-tell-ems.
But there’s an unfortunate truth about bosses. They can fire you. And that’s what Allen-Hart set about doing to Kaye, claiming that his e-mail was a clear case of insubordination.
Most of us have probably witnessed similar tiffs in the workplace, tiffs that haven’t resulted in anyone getting fired.
But it seems likely that there was some long-standing acrimony between Kaye and Allen-Hart and, to Kaye’s misfortune, he had provided Allen-Hart with the ammunition to end whatever conflict that existed once and for all.
Kaye had tweaked the tiger’s tail once too often. And as an at-will employee, he didn’t have much recourse.
Of course he sued for wrongful discharge, perhaps his strongest argument being that his e-mail was protected speech under the California Constitution.
Under state law, however, when public employees make statements pursuant to their official duties, the state’s constitution does not insulate their communications from employer discipline.
Last week, the California Court of Appeal applied the state standard to uphold the dismissal of Kaye’s lawsuit.
“We have not located any California authorities affording public employees greater protection in this area,” the court said. “Although one appellate court was specifically invited to find greater protection under the California Constitution, it declined the invitation observing, ‘federal law has been leading the way for California cases involving discipline of employees for free speech activities, and we see no reason to depart from its essential reasonableness.’” (Kaye v. San Diego County Public Law Library)
— Pat Murphy
patrick.murphy@lawyersusaonline.com
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