The office manager for a district attorney (DA) did not have a First Amendment claim for her firing after she refused to attend the funeral of the DA's mentor, the 7th U.S. Circuit Court of Appeals ruled.
The plaintiff had worked for Trempealeau County, Wis., for over 45 years. She was a secretary and receptionist for the DA's office, then a legal secretary and finally, a paralegal/office manager. During her final six years of employment, a new DA took over. The plaintiff was a county employee but worked under the direction of the DA.
In September 2017, the DA's mentor, who served as a DA for a neighboring county, died unexpectedly. His funeral was scheduled for Sept. 8 at a Methodist church. The day before the funeral, the DA e-mailed his staff. He informed them that he planned to close his office on the day of the funeral so that employees could attend the service, which was not mandatory, although he preferred that all employees go to pay their respects.
Hours after the DA sent the e-mail, the plaintiff responded that she and two other county-employed staff members in the office preferred to work rather than attend the funeral. She explained that, under the county's HR handbook, employees must use vacation time to attend the funeral. She planned to attend the mentor's wake that evening but was scheduled to meet with a law enforcement officer during the funeral service. When the plaintiff replied to the e-mail, she did not know that the funeral would be a religious service. Her decision had nothing to do with its religious nature.
The plaintiff talked to the county's HR director and confirmed that if she attended the funeral, she would have to take a vacation day. The county's rules stated that employees must use vacation time to attend the funeral of anyone other than a close relative.
On the day of the funeral, the DA met with the plaintiff and the two other staff members. He told them that he still planned to close the office for the funeral. He told one of the staff members that if she were worried about the requirement that she take a vacation day to attend the funeral, he would pay her out of his own pocket. One of the staff members agreed to attend, but the plaintiff and the other staff member still wanted to work that day.
The DA became agitated. He told them that they could go to the funeral, work from home or take a vacation day. The other staff member agreed to attend the funeral. The DA then said that the plaintiff must take paid leave if she would not attend the funeral. The plaintiff left the conference room to walk around the building to calm down. The DA arranged to have the lock on the office door changed and the plaintiff's computer access frozen.
The plaintiff talked to the HR director, who told her she did nothing wrong and sent her home with pay. The plaintiff remained on paid leave, as the DA was unwilling to have her return to work at his office. Several county board members coordinated with the HR director to offer the plaintiff a possible transfer to the corporation counsel's office, where work could be moved from the DA's office, at the same pay grade. When presented this offer, the plaintiff asked for a job description, which was not yet available. As a result, the plaintiff refused the transfer.
Several weeks later, the county terminated the plaintiff's employment. In response, she filed a lawsuit claiming that her firing violated the Fair Labor Standards Act and the First Amendment to the U.S. Constitution. The county moved for summary judgment against the claims, which the district court granted.
On appeal, the 7th Circuit determined that the plaintiff could not claim that the county sought to force her to engage in religious activity. Rather, a funeral is a unique form of religious service based on its secular significance. The plaintiff did not object to the service because it was religious, and she was unlikely to be coerced into unwanted religious activity. Rather, because the plaintiff refused to accept a transfer, she was justifiably fired because of the breakdown in her relationship with the DA. The 7th Circuit thus upheld the dismissal of her claim.
Knudtson v. County of Trempealeau, 7th Cir., No. 19-3237 (Dec. 9, 2020).
Professional Pointer: Government employees have protection against discharge when refusing to engage in coerced speech or worship. They do not have a right, however, to refuse a content-neutral requirement that they see as unfair or unreasonable.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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