A jury will decide whether a Douglas County charter school fired an employee because of her protected online speech about vaccinations, a federal judge ruled last month.

At the same time, U.S. Magistrate Judge Scott T. Varholak determined Jennifer Webb’s repeated reports of alleged financial improprieties were not protected by the First Amendment. Consequently, jurors would not evaluate whether Aspen View Academy retaliated against her for raising concerns of embezzlement.

Webb was the business manager for Aspen View, an elementary and middle school in Castle Rock, between 2017 and 2021. Her job generally entailed bookkeeping and financial oversight. Webb soon became concerned about financial malfeasance by the school’s principal, Robert Barber. His purported improprieties included failing to back up purchases with receipts, spending school money for personal use and directing funds to a friend’s company.

Webb anonymously provided a detailed report to Douglas County School District describing her concerns. The day before her Oct. 1, 2021 termination, Webb also emailed the Castle Rock Police Department alleging she had evidence of Barber’s embezzlement in excess of $20,000. A school investigation cleared Barber of the allegations.

Simultaneously, Webb had been communicating publicly about vaccines generally and COVID-19 in particular. She emailed the school district’s superintendent warning that masking was not being taken seriously at Aspen View and kids “are being teased for wearing masks.” Webb also posted pro-vaccine comments on Facebook, saying conspiracy theories and “big pharma stuff” were meritless.

Following a critical comment by another Facebook user who was the parent of an Aspen View student, Webb replied, “enjoy your cancer.”

Troy Schroeder, a member of the school’s board of directors, responded to screenshots of Webb’s post by calling her an “absolute cancer” with “continued inappropriate behavior.” Days later, the school administration notified Webb it was terminating her for, among other things, inappropriately communicating with others, performing her job in a substandard fashion and lacking a “trustworthy, ethical, legal, and diligent” approach.

Webb sued, alleging the school retaliated against her for exercising her First Amendment right to blow the whistle on financial improprieties and for speaking about COVID-19 and vaccination. She also claimed a violation of Colorado’s Lawful Off-Duty Activity Statute, asserting she was terminated for her legal conduct outside of work.

Aspen View “considered multiple pieces of information in its decision to terminate Webb, and terminated Webb for a multitude of reasons,” responded lawyers for the school and Barber. Her social media posts were only a “small” part of the reason for her termination but “resulted in disruptions,” the defendants contended, from parents and staff asking about Webb’s professionalism.

Webb countered that her speech pertained to matters of public importance and was constitutionally protected. Moreover, she had received favorable performance evaluations during her tenure, with things turning sour only after the defendants learned about her speech.

Varholak, the magistrate judge, determined portions of Webb’s retaliation claim would not reach a jury trial. Specifically, some of her communications, including the email to Castle Rock police on the eve of her termination, were not known to the defendants when they fired her.

Broadly, Webb’s whistleblowing about financial improprieties could not be a basis for a retaliation claim. Although public employees retain First Amendment protections, they are narrower than in other contexts. Specifically, if an employee’s speech was made pursuant to their official duties or did not involve a matter of public concern, it is not constitutionally shielded.

Looking to Webb’s job duties, Varholak conceded that while reporting financial malfeasance at Aspen View was not “customary” for her, it was nonetheless within her realm of responsibilities.

“Plaintiff had duties to accurately maintain AVA’s finances and payroll, make financial reports to DCSD (Douglas County School District), and bring financial discrepancies to AVA’s attention,” he wrote in a June 20 order. Webb’s speech “fell within the scope of Plaintiff’s official duties. It is therefore not protected by the First Amendment.”

He reached a different conclusion about Webb’s Facebook posts. Her commentary about vaccinations was “of deep interest to the community,” and therefore was a matter of public concern. Although public employers are permitted to have an interest in limiting disruption to their operations from an employee’s speech, Varholak saw no actual or perceived disruption from Webb’s posts. 

“There is no evidence that Plaintiff’s speech strained internal employment relationships or harmony, impacted the ability of AVA to achieve its organizational and educational goals, or impaired Plaintiff’s ability to effectively perform her job,” he explained. “Defendants do not provide support for the notion that a public employer has an interest in restricting speech simply because it causes member(s) of the public to have ‘conversations’ or ‘ask questions’.”

Because a jury could find the Facebook posts played either a minor or significant role in Webb’s firing, Vaholak permitted that portion of her retaliation claim to proceed against Aspen View and Barber.

Lawyers for the parties did not immediately respond to a request for comment.

The case is Webb v. Aspen View Academy et al.