Sixth Circuit Revives Hostile Work Environment Claim Against Local Judge

In August, the federal Court of Appeals affirmed in most part the dismissal of an employment retaliation and harassment complaint filed against five local municipal court judges and a court employee on the grounds that the allegations were too vague to support an actionable claim, but reversed the dismissal of the hostile work environment allegations made against one of the judges because sufficiently specific allegations had been made against him.  Boxill v. O’Grady, No. 18-3385 (6^th Cir. Aug 16, 2019).  To survive dismissal at this early stage, the complaint must state more than conclusory allegations against the defendant as a group and must allege that any alleged retaliation was based on personal knowledge of the protected conduct.


According to the Court’s opinion, the plaintiff alleged that the defendants formed a conspiracy in 2007 to intimidate complaining female employees, but that she did not suffer any abusive treatment until one of the judges made hostile comments to her in 2011 which she indicated were racist and sexist.  She claimed to have reported his “harassment” to several of the defendants through 2013, but no action was taken and in 2013 one of her male subordinates was given a substantial raise (that impliedly she did not similarly receive).  


In 2014, the plaintiff alleged that another judge took up her cause and drafted a letter expressing concerns with the behavior of the judge who she claimed was behaving inappropriately to her.   Her supervisor revised the letter, which indicated that the judge’s behavior could result in litigation and lead to potential liability for hostile work environment.  Importantly, there was no allegation that the allegedly hostile judge knew about the letter or that the plaintiff was the source of the allegations.  Nonetheless, a week later, she was demoted and she alleged that the allegedly hostile judge recruited other judges to monitor her and her staff and they began bypassing her to go directly to her staff.  She resigned in 2014.  She filed suit seeking relief under §§ 1981 and 1983 for hostile work environment and retaliation, but not Title VII or state law.


With respect to her retaliation claims (under the First Amendment and §1981/1983), the Court found that her complaints of discrimination were matters of public concern, although it did not address the issue that her complaints were about her own personal situation.  It also found that her demotion and reduction in responsibilities would deter a reasonable person from exercising their protected rights.  However, her claims against four of the defendants failed because she failed to make any allegations that they were aware of her complaints or individually took any adverse action against her.  “Summary reference to a single, five-headed “Defendants” does not support a reasonable inference that each Defendant is liable for retaliation.”  While her allegations against the fifth judge were more detailed about his adverse actions against her, she never alleged that he was aware of her complaints against him.  Accordingly, the retaliation claims were properly dismissed.


With respect to her §1983 civil conspiracy claims, she similarly failed to make any individual allegations against four of the defendants that they participated in the alleged conspiracy, shared a conspiratorial objective, or committed any specific acts to further the alleged conspiracy.  Her reliance on the awareness of two of the defendants of the draft letter and revising the letter was misplaced because “letter’s open recognition of concerns about” the allegedly hostile judge  “undercut the claim that [they]  worked to conceal complaints against him.” While her complaints against the allegedly hostile judge were specific, she failed to allege that he knew about any of her complaints against him. He “could not have conspired to retaliate against [her] on the basis of complaints he knew nothing about.”


With respect to her hostile work environment claim, she again failed to allege that four of the defendants knew anything about her complaints and failed to take action.  On the contrary, the fact that the letter about the fifth judge’s behavior was being circulated and discussed, show that they were taking proactive steps to address the situation.  Nonetheless, her “vague reference to the Defendants’ “facilitati[on]” of “a continuing hostile work environment”  . . .  is not enough to state a plausible claim against any of these Defendants.  Nor is [her] conclusory allegation that [the fifth judge] was “hostile and intimidating to [her] personally.”  Accordingly, those allegations against four of the defendants were similarly dismissed.


The Court reversed dismissal of the hostile work environment claim against the fifth judge because the allegations against him were sufficient to proceed to the discovery phase of the litigation.  The plaintiff alleged “that shortly after his election to the bench in 2011, ‘[he] began making hostile comments’ that ‘mirrored sexist and racist allusions [he] had directed at [her] when he had been Bailiff’ at the same courthouse in the past.”  She had complained that he was interfering with her ability to work and the other judges recognized that his behavior had become enough of a problem that they felt the need to document their concerns.

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 be changed or 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.

Supreme Court’s Holds Employer’s Motive Is Focus in First Amendment Retaliation Case, Not Employee’s Conduct

Today, a divided Supreme Court reversed summary judgment for a municipal employer in a First Amendment/§1983 case where the plaintiff cop had been demoted after he was observed socializing with the campaign staff of the incumbent mayor’s political opponent. Heffernan v. City of Patterson, NJ, No. 14-1280 (4-26-16).  The demotion was based on the incorrect assumption that the plaintiff supported the mayor’s political opponent (arguably protected conduct) when, in fact, he had simply been running an errand for his invalid mother (unprotected conduct).  Nonetheless, the Court found it was the employer’s motive for the demotion and not the plaintiff’s actual conduct that mattered for purposes of determining whether the First Amendment had been violated. “The upshot is that a dis­charge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.”

According to the Court’s opinion, the plaintiff was a police detective and a personal friend of the political opponent of the incumbent mayor (who had appointed the police chief and the plaintiff’s supervisor).  He was observed by fellow officers holding the opponent’s election sign and chatting with his election staff.  He was demoted to beat patrol the next day because of his “overt involvement” in the opponent’s campaign.  He denied that he had been supporting his friend’s campaign and explained that he had simply been picking up an election sign at the request of his invalid mother.  Because he had not actually been engaged in arguably protected First Amendment activities when he ran an errand for his mother, the trial court granted judgment for the employer on the grounds that its mistaken assumption about his activities could not form the basis of a claim under the First Amendment or §1983 and he had not been denied any First Amendment or other constitutional right.  The Third Circuit affirmed.    The Supreme Court reversed.  

“With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”  For purposes of this case, the Court assumed that the activities in which the employer mistakenly believed that the plaintiff had engaged were, in fact, protected and that no legal exceptions were implicated.  The text of the First Amendment is not clear whether the constitutional right should focus on the employer’s motive or the employee’s actual conduct.  Nonetheless, in a prior case, the Court had found that an employer’s reasonable, but mistaken, belief that an employee had engaged in unprotected petty gossip rather than protected First Amendment conduct was sufficient to relieve the employer of liability.  Therefore, if an employer could avoid liability through a mistaken belief that the employee had not engaged in protected conduct, it could just as easily become liable for acting on a mistaken belief that the employee had engaged in protected conduct even though he had not.

[A] rule of law finding liability in these circumstances tracks the language of the First Amend­ment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the free­dom of speech.” The Government acted upon a constitu­tionally harmful policy whether [the plaintiff] did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea­son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And [he] was directly harmed, namely, demoted, through application of that policy.

“The employer’s factual mistake does not diminish the risk of” discouraging employees from engaging in protected activities.  The Court rejected the argument that focusing on the employer’s motive would make litigation more expensive for employers and, instead, noted that it would become more difficult for plaintiffs:

a rule of law that imposes liability despite the em­ployer’s factual mistake will not normally impose signifi­cant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more diffi­cult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks.

Finally, the Court noted that its assumptions about the actual facts of the case could be mistaken and should be evaluated by the trial court:

There is some evidence in the record, however, suggest­ing that [the plaintiff’s] employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign.  . . . . Whether that policy existed, whether [his] supervisors were indeed following it, and whether it com­plies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance.

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 be changed or 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.

 

Divided Sixth Circuit Partially Upholds §1983 Challenge to Termination of Pickerington City Employee

On Friday, a divided Sixth Circuit Court of Appeals reversed summary judgment in favor of the City of Pickerington on a §1983 claim based on how the pre-termination hearing was conducted by the newly appointed acting City Manager when the plaintiff was not given notice of sexual harassment allegations before the hearing and was not permitted to view any of the pornography evidence (from more than four years earlier) gathered against him.  Lane v. City of Pickerington, No. 13-4073 (6^th Cir. 11-14-14).  The Court also denied immunity to various city officials based on the failure to provide adequate pre-hearing notice or procedural due process during the pre-disciplinary hearing.  However, the Court affirmed dismissal of the remaining claims because the plaintiff could not show that he had been defamed and any delays in the post-termination process (which granted him partial relief in ordering his reinstatement) were attributable to state-court litigation and not the defendants.

According to the Court’s opinion, the plaintiff alleged that he had been friendly with the former City Manager, who told him shortly before that manager was fired that he had been directed to fire him and other employees.  The personnel director told them not to worry about mere rumors.  However, on the first day of the new acting city manager, the plaintiff’s computer was searched for evidence that he had been unlawfully deleting city documents.  No such evidence was found.  However, some pornographic images from four years earlier were found on the hard drive, in violation of City policy.  Only one other computer was inspected.   The plaintiff was given less than one day’s notice of a pre-disciplinary hearing – for violating the technology policy -- without any indication that he could be fired or that he could bring an attorney.

During the hearing, he was asked about the pornography, but was refused his request to view these images.  He could not remember them, but speculated that they might have been sent to him in emails or that someone else could have view the images after he logged in for the day, but while he was out of the office. A subsequent inspection revealed cookies from pornographic web sites.   The plaintiff was also asked about sexually inappropriate comments he allegedly made to female co-workers, but which he did not recall.  A few days later, he was fired.

The plaintiff appealed to the personnel appeals board, but was told that he was an unclassified employee.  After filing a mandamus action, which was only upheld on appeal, the Board held a hearing, found he was a classified employee and reduced his termination to a suspension.  That decision remains on appeal in state court.   The City also informed the Bureau of Unemployment Compensation that he had been terminated for sexual harassment and violating the City’s technology policy in, among other things, viewing pornography at work.

On appeal, the Sixth Circuit majority found that the plaintiff “was denied adequate pre-deprivation due process.”

 

 Under Loudermill, a predeprivation hearing must include an explanation of the employer’s evidence. Lane was denied the opportunity to see the photographs he was accused of viewing and retaining, depriving him of a “meaningful opportunity to tell his side of the story.” . . . Additionally, a jury could find that Lane was not given notice of all the charges against him.  Lane was notified of the charge that he “viewed and retained” offensive images, but he was not notified of any sexual-harassment or hostile-work-environment charges, even though Taylor stated in a termination memorandum to the State of Ohio that Lane “created a hostile working environment that makes the women feel uneasy when Paul is present,” and stated in a letter to the Ohio Bureau of Unemployment Compensation that, “in regards to sexual harassment,” . . . . . The lack of meaningful notice and an opportunity to be heard is evident given that Taylor based his decision to terminate Lane in part on Lane’s “failure to present any evidence to the contrary at the [pre-termination] hearing.”

In light of the due process violation, the Court denied qualified immunity to the individual defendants: 

Their sole joint argument is that they infringed no clearly established constitutional right because no reasonable official would have known that terminating Lane, after notice, for viewing pornography was impermissible. This argument conflates the clearly established procedural right at issue with the reason for the termination, and ignores the patent inadequacy of the notice. Although the Constitution does not require an “elaborate” predeprivation hearing, it required Defendants to provide Lane a “meaningful opportunity to tell his side of the story” before he was fired.  . . .. A reasonable official would have known that Lane was entitled to view the evidence against him. Additionally, a jury could find that Lane was terminated based on allegations not contained in the notice of the predisciplinary conference; a reasonable official would thus have known the notice was constitutionally inadequate.

The Court also remanded the issue of the City’s respondeat superior liability because the district court did not address it after dismissing the two substantive claims. “[A] municipality may be liable for the actions of its employees or agents under § 1983 where the “acts may fairly be said to represent official policy.”    

Nonetheless, the Court rejected the post-termination due process allegations on the grounds that the delay in reinstating the plaintiff was attributed almost entirely to state court litigation and not intentional misconduct by the defendants.  It also rejected the defamation claims on a number of grounds, including the reasonable basis for the allegations against the plaintiff and qualified privilege.

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.

Sixth Circuit Dismisses Title VII and §1983 Claims Brought by Volunteer Nuns

On Friday, the Sixth Circuit Court of Appeals dismissed for lack of subject matter jurisdiction Title VII religious discrimination and retaliation claims brought by two nuns who volunteered with the Red Cross and the Ross County Emergency Management Agency.   Sister Michael Marie v. American Red Cross, No. 13-4052 (6^th Cir. 11-14-14).  Similar constitutional and first amendment claims against the agency were likewise dismissed. The plaintiffs both volunteered with the Red Cross and county agency.  They alleged that the Red Cross denied them promotions to volunteer positions with higher authority and responsibility on account of their religion and terminated them in retaliation for complaining.  They allege that they were later terminated by the county agency for similar reasons and that the Red Cross Executive Director served on the Board of the agency.  They filed with the OCRC and EEOC Charges of Discrimination, which were dismissed for lack of jurisdiction since the nuns volunteered with the respondents and were not employees.  Neither plaintiff received or expected any monetary compensation for their services and did not receive any employment benefits, but were eligible for workers compensation, life insurance and travel reimbursement.  They filed suit in federal court, which dismissed the claims and was affirmed on appeal.

The Court of Appeals determined that coverage under Title VII is limited to common law employees, which depends on a number of factors, such as:

[1] the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

While this test is most frequently utilized to determine whether an individual is an employee or independent contractor, it can also be applied to determine whether a volunteer is a covered employee.  Unlike other circuits, the Sixth Circuit considers compensation to be just one of the relevant factors, instead of categorically more important.  The Court rejected the plaintiff’s argument that it should be of lesser importance. After noting that the plaintiffs received no compensation or employment benefits, it also noted that they largely controlled when they volunteered and how they performed.  The plaintiffs were in no way economically dependent on the defendants.  The only factors in their favor was that the plaintiffs had worked for the defendants for several years and performed services in the defendants’ core business. Nonetheless, it was debatable whether the nature of their services was like that typically performed by employees or independent contractors.

The Court also found that the plaintiffs did not show that they were retaliated against on the basis of their religious beliefs.  The agency’s executive director had been initially friendly with them, which meant that another factor must have arisen when his behavior allegedly changed years later.  The Court also concluded that they could not show denial of equal protection because they failed to identify any other volunteers who were treated differently in that they were the only two volunteers who criticized the agency’s management.

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.

Unanimous Supreme Court Revives First Amendment Retaliation Claim Based on Plaintiff’s Prior Testimony in Public Corruption Criminal Proceedings

This morning, a unanimous U.S. Supreme Court reversed summary judgment entered in favor of a current community college president on a First Amendment retaliation claim brought by a program director who had been terminated following his subpoenaed testimony in a criminal proceeding against a former employee.  Lane v. Franks. No. 13-483 (6-19-14).   The Supreme Court held that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by sub­poena, outside the course of his ordinary job responsibilities.  The plaintiff’s testimony in a criminal trial was clearly a matter of public concern.  “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.”

According to the Court’s opinion, after the plaintiff terminated a state representative on his department’s payroll for failing to report to work, she was investigated by the FBI and ultimately sentenced to 30 months in prison for mail fraud and theft.  The plaintiff had been subpoenaed to testify before a grand jury and two jury trials about why he fired the state legislator.  After her conviction, he recommended that the college lay off some of his program’s employees to save money.  The college then laid off him and 29 employees, but then reinstated all but him and another employee.    Nine months later, the college eliminated the entire program and the plaintiff filed suit under §1983, alleging that he had been terminated in retaliation for testifying under subpoena in the criminal proceedings in violation of the First Amendment.  He sought damages from the former president and reinstatement from his successor.

The District Court found the former college president had qualified immunity to the extent sued in his individual capacity because it had not been not clear that the plaintiff’s trial testimony was protected by the First Amendment in that it was related to his official duties as program director.   The Court also found that the official capacity claims against the successor college president were barred by the Eleventh Amendment. The Eleventh Circuit found that the plaintiff’s testimony was not protected by the First Amendment because he was testifying as an employee and not an individual.

The Supreme Court reversed.  In doing so, it reiterated that a public employee’s First Amendment rights are balanced against his employer’s interest in efficient services.  As the Court explained in Garcetti v. Ceballos, 547 U. S. 410, 421, the Court will examine whether the speech was a matter of public concern and whether the government had a legitimate reason to treat the employee differently than a member of the general public.

 

In describing the first step in this inquiry, Garcetti distinguished between employee speech and citizen speech. Whereas speech as a citizen may trigger protec­tion, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment pur­poses, and the Constitution does not insulate their communi­cations from employer discipline.”

The Court found the trial testimony in this case was “clearly” a matter of public concern.  “Sworn testimony in judicial proceedings is a quintessential example of speech as a citizen for a sim­ple reason: Anyone who testifies in court bears an obliga­tion, to the court and society at large, to tell the truth.”  The Court rejected the argument that the testimony lost constitutional protection because it related to the plaintiff’s official duties as program director.  “In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech a tissue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”  

It was also clearly a matter of public concern because it related to public corruption.   The reason for such a clear rule is obvious based on the facts of this case:

It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.

Nonetheless, “[a]  public employee’s sworn testimony is not categorically entitled to First Amendment protection simply because it is speech as a citizen on a matter of public concern.”   A court must still consider the employer’s countervailing interest.   However, in this case, the college could not articulate any governmental interest in terminating the plaintiff’s employment or treating him differently than a member of the general public.  There was no assertion, for instance, that his testimony had been false, or that he had unnecessarily revealed confidential or sensitive information.

That being said, the Court agreed that the law had been unclear about the legality of terminating the plaintiff and, therefore, affirmed summary judgment on the qualified immunity claims.

The Eleventh Circuit had declined to consider the Eleventh Amendment defense raised by the successor college president because it had erroneously concluded that the plaintiff had not proven unlawful retaliation.   The Supreme Court reversed.

In concurring opinions, three justices pointed out that this decision only applies when the plaintiff is not required to testify as part of his official duties.  The result could be different if the public employee were required as part of their jobs to testify in court proceedings, like a police officer, forensic scientist, etc.

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.

Sixth Circuit: First Amendment Protects Public Employee’s Interview with Reporter About Boss’s Alleged Sexual Harassment of Co-Worker

On Monday, the Sixth Circuit reversed summary judgment in favor of an employer on the employee’s allegations that she had been discharged for exercising her First Amendment rights to comment on matters of public concern. Hughes v. Region VII Area Agency on Aging, Nos. 07-1570/1647 (9/8/08). In that case, the plaintiff was fired after she was sought out and interviewed by a newspaper reporter about a sexual harassment lawsuit which had been filed against her boss by a co-worker, about her belief that another employee was fired for advocating an independent investigation and about other arguably inappropriate conduct. The plaintiff also objected to disciplinary action and an unpaid suspension imposed against her for discussing with a colleague the affect of possible budget cuts at the agency. Following her termination, she filed suit under § 1983.

First, the court found that the agency was not a private non-profit, but was, in fact, a government agency because of its corporate structure, funding and federal statutes. In other words, the agency was subject to § 1983 because it acted “under color of state law due to the pervasive entwinement of governmental entities in the management and control of” the agency. The Supreme Court previously “noted that ‘a challenged activity may be state action . . . when it is ‘entwined with governmental policies’ or when government is ‘entwined in [its] management or control.’” However, the Supreme Court has also stated that “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974). Nonetheless, in this case, the extensive statutory and regulatory provisions “show that government is deeply “‘entwined in [the] management or control’” of the agency employer: government entities are the sole members of [the agency] and they appoint eleven members of [the agency’s] board of directors, with their chosen representatives appointing the final member of the board. Furthermore, virtually every act that [the agency] performs must receive approval from a state agency, and the very existence of [the agency employer] as a “designated” area agency on aging depends upon [the agency] being “under the supervision or direction of the state agency.” MICH. COMP. LAWS § 400.589(1) (emphasis added). The entwinement of government in the management and control of [the defendant agency] is thus a matter of statutory policy, in addition to the fact that the membership of [the defendant agency] consists entirely of governmental entities.”

Once the court determined that the agency employer was required to comply with the federal constitution, it examined whether it violated the employee’s First Amendment rights. “[I]n determining whether a public employer has violated the First Amendment by firing a public employee for engaging in speech, the Supreme Court has instructed courts to engage” in a multiple-step inquiry. First, a court “must ascertain whether the relevant speech addressed a matter of public concern.” Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003). In conducting this inquiry, the court “must assess ‘the content, form, and context of a given statement, as revealed by the whole record.” In this case, the court had no difficulty in finding that comments about a sexual harassment lawsuit against the agency’s Executive Director and his alleged retaliation against a complaining employee constituted a matter of public concern. “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’ . . . In Connick, the Supreme Court offered examples of speech that would involve matters of public concern, such as statements “inform[ing] the public that [a governmental entity] was not discharging its governmental responsibilities” or statements “seek[ing] to bring to light actual or potential wrongdoing or breach of public trust on the part of” government employees. . . . . The Court in Connick also described an individual’s “right to protest racial discrimination” as “a matter inherently of public concern.” . . . Likewise, we have stated that “it is well-settled that allegations of sexual harassment, like allegations of racial harassment, are matters of public concern.” . . . Finally, in Matulin v. Village of Lodi, 862 F.2d 609, 613 (6th Cir. 1988), we observed that our “finding of public concern is here strengthened by the fact that the plaintiff did not solicit the attention of the media, but simply responded to questions regarding an existing controversy.” In Matulin, we described the Third Circuit’s decision in Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), as holding “that statements relating to charges of discrimination leveled at public employers and reported upon by newspapers clearly involved matters of public concern.”

The court did not reach a conclusion about whether the plaintiff’s comments to a co-worker about budget cuts necessarily constituted a protected matter of public concern. On one hand, her comments about trying to influence the political budget process could be constitutionally protected. On the other hand, comments adversely affecting employee morale by highlighting possible layoffs could be the subject of disciplinary action. The Supreme Court has found that even when employee speech “touches upon matters of public concern” to a limited extent, the employee’s discharge “did not offend the First Amendment” because that “limited First Amendment interest . . . d[id] not require that [the employer] tolerate action which [it] reasonably believed would disrupt the office . . . and destroy close working relationships.” Therefore, the trial court was instructed to reexamine this issue upon remand.

In the second step of the inquiry, the court considered “whether the employee’s expressions were made ‘pursuant to his or her official responsibilities” or whether the “statements or complaints . . . [were] made outside the duties of employment . . . . In Garcetti, the Supreme Court held that “the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities” and thus concluded that the plaintiff’s First Amendment retaliation claim failed given that “the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties.’” However, in this case, the agency never argued that the plaintiff made any of the challenged statements in connection with her official duties.

The third step of the inquiry requires to the court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” With respect to the employee’s comments to her co-worker about budget cuts, the Court instructed the trial court to “balance the interests of the public employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Interestingly, it did not discuss any balancing test in connection with the sexual harassment discussion.

Finally, the multiple-step inquiry requires the court to “determine whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee.” In this case, the actual motivation of the employer was in question because it failed to conduct even a cursory investigation before imposing the disciplinary action. “[T]he district court should analyze as a separate retaliation claim whether [the plaintiff’s] comments to her co-workers in June 2004 were a substantial or motivating factor in imposing the reprimand and two-day unpaid suspension; the district court should also then determine whether, under Waters, Defendants conducted a reasonable investigation into the nature of [the plaintiff’s] alleged statements.

Insomniacs can read this decision in full at http://www.ca6.uscourts.gov/opinions.pdf/08a0341p-06.pdf.

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.

Ohio Supreme Court Limits Federal Civil Rights Claims to Two Years.

Yesterday, the Ohio Supreme Court decided that Ohio Revised Code § 2305.10’s two year statute of limitations applied to federal civil rights claims – such as § 1983 claims -- which lack a federal statute of limitations. Nadra v. Mbah, 2008-Ohio-3918. Section 1983 claims are frequently brought against government entities, agencies, employees and officers by government employees and regular citizens alleging that the plaintiff’s federal civil rights were violated under color of state law.

In Nadra, Franklin County Children Services employees and the Columbus Police investigated plaintiff’s home and found her “nine-year-old son locked in the basement. On January 3, 2002,” defendant FCCS employees “filed a complaint alleging that Nadra punished her son by locking him in the basement, chaining him to a pole at times, withholding food from him, and making him use a bucket as a toilet. Consequently, the complaint asserted that Nadra’s son was abused, neglected, and dependent.” Custody was eventually awarded to the child’s father and a jury acquitted plaintiff of criminal charges filed in the matter. Thereafter – more than two years after the child had been removed from her home, the plaintiff filed suit against the children services employees alleging that they violated her civil rights under color of state law under § 1983.

Writing for the majority, Justice Stratton wrote that the court was “asked to determine which statute of limitations governs actions filed in Ohio under Section 1983, Title 42, U.S. Code. The Supreme Court has instructed that in Section 1983 actions, courts must apply a state’s general or residual statute of limitations that governs personal-injury actions. Owens v. Okure (1989), 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594. We hold that R.C. 2305.10, which contains a two-year limitations period, is Ohio’s general statute of limitations governing personal injury in Ohio. Therefore, we reverse the judgment of the court of appeals.”

The dissent and the Franklin County Court of Appeals had concluded that the four-year statute of limitations in O.R.C. § 2505.09 applied. R.C. 2305.09 provides in relevant part that: “An action for any of the following causes of action shall be brought within four years after the cause thereof accrued: * * * (D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections, 2305.10 to 2305.12 * * * of the Revised Code.” In contrast, the statute which the Court found to apply provides in relevant part that “an action “for bodily injury or injuring personal property shall be brought within two years” after the cause of action accrues.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-Ohio-3918.pdf.

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.

Ohio Supreme Court Limits Federal Civil Rights Claims to Two Years.

Yesterday, the Ohio Supreme Court decided that Ohio Revised Code § 2305.10’s two year statute of limitations applied to federal civil rights claims – such as § 1983 claims -- which lack a federal statute of limitations. Nadra v. Mbah, 2008-Ohio-3918. Section 1983 claims are frequently brought against government entities, agencies, employees and officers by government employees and regular citizens alleging that the plaintiff’s federal civil rights were violated under color of state law.

In Nadra, Franklin County Children Services employees and the Columbus Police investigated plaintiff’s home and found her “nine-year-old son locked in the basement. On January 3, 2002,” defendant FCCS employees “filed a complaint alleging that Nadra punished her son by locking him in the basement, chaining him to a pole at times, withholding food from him, and making him use a bucket as a toilet. Consequently, the complaint asserted that Nadra’s son was abused, neglected, and dependent.” Custody was eventually awarded to the child’s father and a jury acquitted plaintiff of criminal charges filed in the matter. Thereafter – more than two years after the child had been removed from her home, the plaintiff filed suit against the children services employees alleging that they violated her civil rights under color of state law under § 1983.

Writing for the majority, Justice Stratton wrote that the court was “asked to determine which statute of limitations governs actions filed in Ohio under Section 1983, Title 42, U.S. Code. The Supreme Court has instructed that in Section 1983 actions, courts must apply a state’s general or residual statute of limitations that governs personal-injury actions. Owens v. Okure (1989), 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594. We hold that R.C. 2305.10, which contains a two-year limitations period, is Ohio’s general statute of limitations governing personal injury in Ohio. Therefore, we reverse the judgment of the court of appeals.”

The dissent and the Franklin County Court of Appeals had concluded that the four-year statute of limitations in O.R.C. § 2505.09 applied. R.C. 2305.09 provides in relevant part that: “An action for any of the following causes of action shall be brought within four years after the cause thereof accrued: * * * (D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections, 2305.10 to 2305.12 * * * of the Revised Code.” In contrast, the statute which the Court found to apply provides in relevant part that “an action “for bodily injury or injuring personal property shall be brought within two years” after the cause of action accrues.”

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-Ohio-3918.pdf.

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.