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 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.’”
. . . .
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.

Sixth Circuit Rejects Two Qualified Immunity Defenses Raised in Southern District of Ohio

As a general rule, government employees are immune under federal law from civil damages for acts conducted in the course of their employment because of a qualified immunity. However, that qualified immunity can be lost if the government official or employee engages in conduct which violates clearly established law. Today, the Sixth Circuit released two opinions which affirmed the denial of qualified immunity to two different employers from Southern Ohio because their alleged actions violated clearly established federal law. In the first decision, the employer fired a police officer after his wife distributed letters which were critical of city government. Sigler v. City of Englewood, No. 09-4223 (6^th Cir. 5/20/11). In the second decision, the Court rejected qualified immunity for school officials who failed to act upon student complaints of sexual harassment by fellow students and found that there was no collateral estoppel or res judicata from the disciplinary appeal hearings held to review the five-day suspension of the complaining female student. Evans v. Board of Education of Southwestern City School District, No. 10-4011 (5/23/11).

According to the Sigler opinion, the wife of the plaintiff police officer distributed a letter which was critical of his city government employer. He says that he never saw or heard about the letter until after she distributed it, but he did not inform his employer about the letter even after he found out. An internal affairs investigation was conducted. When initially asked about it, the plaintiff says he asked the investigating officer for a copy of it, but the officer said the plaintiff denied ever having read it. The plaintiff later admitted to having read it after his wife mailed it. The officer recommended that the plaintiff be terminated because he falsely denied having read the letter, was aware of who circulated the letter and never informed his employer about the letter, thus making him a participant. The officer contended that this violated departmental rules against dishonesty and withholding information. The City Manager accepted and acted upon the recommendation. The plaintiff then filed suit contending that he was terminated in retaliation for his marriage to the woman who distributed the letter pursuant to her First Amendment rights.

The district court denied the city's motion for qualified immunity on the grounds that retaliating against an employee because of the actions of the spouse clearly violates established First Amendment law. The Sixth Circuit affirmed and rejected the City's attempt to get the City Manager dismissed as a defendant:

Defendants finally argue that Sigler's alleged constitutional right should be construed more narrowly in determining whether it is "clearly established law." Defendants characterize the right as "whether a reasonable officer or official, standing in place of City Manager Smith or Chief Brownfield, would conclude that his actions violated Keith Sigler's First Amendment intimate association rights when Keith Sigler was terminated for violating the [City's] lawful rules and regulations." Phrasing it this way turns the qualified-immunity analysis upside down. When deciding whether a constitutional right is "clearly established law," one assumes that the right the plaintiff invokes was actually violated. Qualified immunity then excuses that violation if the right was not "clearly established law" such that the defendant should have known of it. The right Sigler invokes is the right not to be terminated in retaliation for his marital association. Assuming that Sigler was so retaliated against, defendants are only entitled to qualified immunity if it was not clearly established that such retaliation is unconstitutional. Defendants' characterization assumes away any retaliatory motive, which is Sigler's whole complaint, and instead assumes as true their purported motive for Sigler's termination. The court does not decide qualified immunity in so backwards a way.

The Court of Appeals also rejected the argument that there was not enough evidence of a factual dispute to submit the case to a jury:

The district court also implicitly held that the defendants might not be able to prove that they would have terminated Sigler even if he had not been married to Susan. The court dismissed the defendants' only evidence on this point—Smith's declaration that he would still have terminated Sigler—by stating that "[t]his, of course, is mere supposition." While abbreviated, both determinations indicate that the district court concluded that there was enough in the record to get to the jury on the questions of whether the marriage caused the termination and whether Sigler would not have been terminated if, other things being the same, he had not been married to Susan. For purposes of this interlocutory appeal, we must make the same assumptions. The alternative would be to read into the district court's holding a legal determination that Smith could be liable regardless of the extent to which Sigler's being married caused the termination. It is hard to read the court's analysis that way. We therefore lack jurisdiction to consider Smith's arguments to the extent that they challenge the factual assumptions of the district court regarding causation.

However, the Court agreed that there was insufficient evidence that the Chief of Police was sufficiently involved in the termination decision merely because he authorized the internal investigation and was aware of the City Manager's planned conduct.

In Evans, the female students complained repeatedly that they were being sexually harassed by two male students. However, no action was taken by the School. Among other things, there was an incident in the back of a school bus which put one of the plaintiffs in tears, which got the attention of a teacher, who sent the student to the Principal's office. After taking her statement, the Principal then suspended both her and the male student for five days, and called the police about the male student. The female student appealed the suspension, which was upheld because there was insufficient evidence that she resisted his advances. The following year, additional incidents occurred with another male student and the female student was repeatedly teased for having loose morals.

The School argued that the Principal was entitled to qualified immunity because collateral estoppels and res judicata attached to the appeals hearing of the female student's suspension and precluded her from later suing under § 1983 because of those incidents. However, the District Court and the Court of Appeals rejected that argument because the school appeal hearing did not address the same legal issue, could not consider the same relief and did not consider the broader course of conduct at issue in the § 1983 action (which covered the span of a few years).

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.