Sixth Circuit Denies Qualified Immunity for Allegedly Discriminating Against Married Employees

This morning, the Sixth Circuit affirmed the denial of qualified immunity to employees of the Ohio Department of Youth Services in connection with alleged discrimination against two married employees in violation of their First Amendment right to associate with each other. Gasper v. Ohio Dep’t of Youth Services, No. 09-3829 (6th Cir. 8/5/2011). A new chain of command was created when the wife was promoted so that she would not be responsible for supervising her husband. However, the union and other employees continued to object to the appearance of impropriety. The husband had been threatened with termination for an unrelated incident (involving inadvertently bringing a gun onto state property) unless he agreed to transfer to a different facility. It was only through a union arbitration decision that he ultimately kept his job. The wife was then demoted and transferred despite her stellar work record and the poor work records of her replacements.

The married plaintiffs brought an action under 42 U.S.C. §1983 alleging violation of their First Amendment right which protects their freedom of association. The district court granted summary judgment on the claim for damages against the state agencies and against the individual defendants in their official capacities because of their Eleventh Amendment immunity. The district court also granted summary judgment on all claims against two individual defendants in their individual capacities, but denied qualified immunity to the four remaining individual defendants based on the treatment of the husband and wife’s demotion and transfer. This appeal followed.

“Government officials who perform discretionary functions are generally protected from liability for civil damages as long as their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” The Sixth Circuit follows a three-step analysis to analyze qualified immunity:

First, we evaluate whether the facts demonstrate that a constitutional violation has occurred. . . . Second, we determine whether the violation involved a clearly-established constitutional right of which a reasonable person would have known. Id. Third, we consider “whether the plaintiff has offered sufficient evidence ‘to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.’”
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A plaintiff alleging First Amendment retaliation under 42 U.S.C. § 1983 must prove that (1) she “engaged in protected conduct; (2) the defendants took an adverse action that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was taken at least in part because of the exercise of the protected conduct.

The Court’s analysis is dependent on context. With respect to First Amendment marriage discrimination claims, “cases based on a challenge to a rule or decision based on marriage per se, such as an anti-nepotism policy, are different from cases challenging purported acts of retaliation that affect the right of marriage” because policies are subject only to a rational basis test, whereas the lack of a legitimate government policy to justify government interference in a marital relationship subjects the government interference to a higher level of scrutiny.

In this case, the husband was able to establish a material factual dispute regarding causation because – despite his culpability in a dischargeable offense – the defendants had been willing to save his job if he would transfer to another location – away from his wife. The court was also influenced that not every employee who engaged in similar misconduct was terminated; that one defendant accurately predicted that his wife would be transferred if he were reinstated by arbitration, that the defendants rejected the unpaid suspension recommended by the mediator and that every individual defendant had expressed dissatisfaction with the plaintiffs working together in the same facility even though the husband did not report to his wife and “the couple was not violating any [agency] anti-nepotism policy.”

The wife was able to establish a material factual dispute regarding causation because she received her first below-target performance evaluation two months after her husband was reinstated. The only “fault” attributed to her was an incident a couple of days earlier by subordinates which could not be ascribed to her. This evaluation was subsequently revised upward immediately before her transfer to a distant location that prevented her from living with her husband during the week. And, she was replaced by individuals with serious performance deficiencies.

As for the qualified immunity, the Court found the right of employees to marry was clearly established and that it had been similarly clearly established that an employee could not be terminated simply because the decisionmaker did not like the person’s spouse. Therefore, the individual defendants were not entitled to qualified immunity and the claims should proceed to trial on the merits.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.