Can Employees Send Confidential Information To The Media?

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Can Employees Send Confidential Information To The Media?

The case is Breiterman v. U.S. Capitol Police, D.C. Cir., No. 20-5295 (Oct. 15, 2021), where the U.S. Capitol Police demoted a sergeant to private first class for disciplinary reasons and later fired her when she ‘exercised’ her First Amendment rights by sending a photo to the media.  The private filed an action for sex discrimination and retaliation, as well as First Amendment violation by the employer.  The Court held that the private’s interests as a private citizen did not outweigh those of her employer’s.

The then sergeant applied for and was not selected for a new position with the Capitol Police as an intelligence officer.  The Caucasian sergeant lodged an HR complaint, alleging she was not promoted because of her race, and stated to others that another female was promoted because of a romantic relationship with the supervisor.  The romance statement caused that other female employee to file a complaint against the sergeant and eventually resulted in the sergeant getting a suspension without pay.

The same month as the suspension (January 2015), the sergeant found an unsecured firearm in the men’s bathroom at the U.S. Capitol Visitor Center and sent a photo of the firearm to a reporter, who used it in news articles, criticizing the U.S. Capitol Police practices. The Capitol Police media policy strictly prohibits employees from speaking publicly or releasing information, including anything related to investigations.

The sergeant later admitted to leaking the photograph, claiming she had a right to do so because it was a “matter of public concern,” and claiming her First Amendment rights allowed her to do so.  The Capitol Police disagreed and that’s when the employer demoted the sergeant to private first class.

She filed her claims, asserting unlawful gender discrimination, retaliation for her internal race-discrimination complaint and retaliation under the First Amendment.  She lost at the trial court and the U.S. Court of Appeals affirmed, indicating that the Capitol Police did not engage in discriminatory or retaliatory conduct for its disciplinary acts, and the now private failed to present evidence of pretext.  The court ruled that the private’s First Amendment retaliation claim also failed because she could not meet the second factor of the four-factor test: that the government employer’s interest in promoting the efficiency of the public service it performed (i.e., police security) outweighed the private’s interests as a citizen in “commenting upon matters of public concern.”  The Court noted that the sensitive nature of the information that the officers handled supported the media and confidentiality policies and found that the Capitol Police had a crucial interest in ensuring its law enforcement officers safeguarded sensitive information.  The fact that the private had a higher responsibility as a supervisor to uphold the mission and policies of the Capitol Police to promote confidentiality and trust also weighed in the balancing that the Court did between her private First Amendment rights vs the employer rights and policies.

The balancing of First Amendment rights is always of concern in dealing with employee leaks.  Also, the facts of the intelligence officer promotion going to another person and the details of the work history of the two weighed into the comparisons between the sergeant who did not get the promotion and the other person who did get the promotion.  Having these issues thoroughly documented helped the employer win the case.

Here at Epps & Coulson, LLP we understand that these balancing issues and evidentiary issues may be confusing. We are available to advise – Dawn:

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