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The Massachusetts Department of Social Services did not violate the First Amendment rights of a social worker when it fired her for making a remark at a testimonial dinner that she herself later described as a “stupid,” “racist,” and “unthinking” joke, the state Supreme Judicial Court ruled Wednesday. In the case of Linda M. Pereira v. Commissioner of Social Services & another (SJC-08218), the Supreme Judicial Court (SJC) reversed an October 1998 superior court decision that Pereira be reinstated to her job. “We conclude that the decision taken by a public agency to discharge her must be upheld,” wrote SJC Chief Justice Margaret H. Marshall for the court in the decision. In siding with the Department of Social Services (DSS), the SJC found that in a line of cases that includes Pickering v. Board of Educ. (31 U.S. 563, 1968) and Connick v. Meyers (461 U.S. 138, 1983) the U.S. Supreme Court has held that a public employee’s speech may be entitled to constitutional protection if the employee speaks out on a matter of public concern, and her interests as a citizen are not outweighed by the state’s interest in performing a public service. The court noted that, despite the fact that Pereira gave a speech at a political event, she herself admitted that her off-the-cuff “joke” was not intended to convey any message and thus was not a matter of public concern. NOT PART OF SPEECH Pereira, who had recently lost her bid for re-election to the Fall River, Mass., City Council, was attending a February 1996 testimonial dinner for outgoing councilors when she made the joke, but, contrary to initial press reports, it was not part of her prepared speech. Pereira claimed that the remark was an off-the-cuff response to another guest’s “grossly sexist and vulgar joke.” Although the dinner was closed to the general public, accounts of Pereira’s remark soon appeared in the press. The director of the Fall River DSS office received 25 telephone complaints, and two social workers experienced difficulties getting the cooperation of members of the community who suspected the agency itself of racism. Furthermore, representatives of the black community of Fall River and New Bedford, Mass., expressed their outrage at a public meeting. Within a few days of the dinner, DSS placed Pereira on paid leave. After an investigation and hearing, Pereira was terminated on April 10, 1996, despite her 12 years of service with a previously unblemished record. In its decision, the SJC noted that an arbitrator had subsequently recommended that Pereira merely be suspended for one year, but stated that the outcome of the case was not affected because Pereira challenged the DSS’ right to impose any discipline. A DSS spokesperson was not prepared to comment at this time in detail on the case, but did state that Pereira is currently an employee in the same or a similar position. SUPERIOR COURT VIEW In the superior court case, Judge Herman J. Smith Jr. dismissed many of her claims as untimely, but held that then-DSS Commissioner Linda Carlisle may be liable for damages in her individual capacity because any reasonable official would have understood that the firing was in violation of Pereira’s clearly established right to free speech. The superior court also ordered that Pereira be immediately reinstated with back pay and held that she could proceed to trial on a claim that the DSS intentionally inflicted emotional distress. Carlisle and DSS filed an appeal with the appeals court, but the SJC transferred the case to its docket on its own motion. OTHER COURTS’ APPLICATION The SJC acknowledged that some courts have held that the Pickering-Connick balancing-of-the-interests test should be applied when an employee’s speech was made outside of the workplace and is so unrelated to her employment that estate discipline may violate the right of free expression. In one such case, Berger v. Battaglia, 779 F.2d 992 [(4th Cir. 1985), cert. denied, 476 U.S. 1159 (1986)], the 4th Circuit Court of Appeals held that a police department could not forbid an officer from appearing in blackface in off-duty performances that offended Baltimore’s black community. Applying the balancing test, the court noted that Pereira asserted no great interest in her “stupid” and “unthinking” remark. Furthermore, since she made her remark at a political event that she knew would draw press attention, she could not claim that the DSS was prying into her private affairs. On the other hand, the SJC concluded, the interests of the DSS were substantial — ensuring that its investigators have a reputation for impartiality and fairness so that they can win the cooperation of the public and protect the lives of children. Thus, Pereira’s firing did not violate her right to free expression. Furthermore, since no “clearly established” right was at issue, Carlisle was entitled to immunity against personal liability.

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