Employment Law Daily Advice to coworker being arrested wasn’t ‘clearly established’ protected speech, qualified immunity barred retaliation claim
Friday, August 17, 2018

Advice to coworker being arrested wasn’t ‘clearly established’ protected speech, qualified immunity barred retaliation claim

By Marjorie Johnson, J.D.

College administrators enjoyed qualified immunity from an admissions counselor’s First Amendment lawsuit asserting she was unlawfully reprimanded in retaliation for having given advice to a coworker who was being arrested by campus police, the Second Circuit ruled. In affirmed dismissal of her Section 1983 claim on summary judgment (but on different grounds than originally held by the district court). Although speech addressing police misconduct and discrimination against others may, under some circumstances, constitute speech on a matter of public concern, there was no “clearly established” law that merely advising another of a constitutional right necessarily constitutes such protected speech (Colvin v. Keen, August 15, 2018, Leval, P.).

Confronts police arresting coworker. While the admissions counselor was attending an on-campus yoga class in May of 2011, campus police officers entered and began to arrest a coworker who had been suspended and reported as trespassing. The employee identified herself as an attorney and stated that she would like to get the coworker union representation and a lawyer. She also told the coworker, “to wait to say anything until we got an attorney and a union rep.” When she asked to accompany the coworker to the police station, the officers threatened to arrest her but ultimately did not do so.

Written reprimands, termination. About a month later, the HR director questioned the employee about the incident. A couple of weeks later, she also received a counseling memorandum which described her actions as “escalating tension,” criticized her for making “the assumption that the officers were acting improperly,” and informed her that “interfering with police business is unprofessional.” She was further advised that “Going forward, it is expected that your personal conduct will be professional, and you will not interfere with any police business” conducted on the campus.

Though her supervisor recommended the employee for reappointment that summer, a VP later advised that she was not be reappointed. Around the same time, she was also counseled about union activities. The college president subsequently advised her in writing that her contract would not be renewed. She continued to work at the college for about two more years but was ultimately terminated.

Lower court proceedings. The district court dismissed the employee’s First Amendment lawsuit to the extent she argued that her firing was retaliatory, finding that she was unable to show a causal connection. However, her claim advanced to the extent it was based on the reprimands she received in 2011. The employer then moved for summary judgment, arguing that her speech was not on a matter of public concern and thus not protected.

The court referred the motion to a magistrate judge, who recommended denying the motion since her speech did address a matter of public concern because she was “attempting to vindicate” her coworker’s constitutional right to counsel and union representation in the face of perceived police misconduct. The district court agreed and denied summary judgment.

However, shortly before trial, defendants again argued that her speech was not a matter of public concern but was motivated to help her coworker achieve a favorable disposition of her arrest. In response, the employee argued that it was “Law of the Case” (LOTC) per the court’s prior order that her speech was a matter of public concern.” Unpersuaded, the court granted summary judgment in favor of defendants.

LOTC argument rejected. After a careful analysis, the Second Circuit rejected the employee’s assertion that the district court was required to adhere to its original ruling and conduct a trial. In asking it to do, solely because the district court had earlier denied summary judgment and without pointing to any prejudice she suffered or any other special circumstances that might render the change of ruling problematic, she misunderstood the nature of the LOTC doctrine. Rather, the court acted well within its discretion to reconsider and reverse its prior ruling, by which it avoided burdening itself and the parties with an unnecessary trial.

Qualified immunity. The Second Circuit also declined to decide whether the employee’s speech addressed a matter of public concern and thus was protected. Rather, because the law was not clearly established on that issue, the defendants were entitled to qualified immunity as a matter of law.

On the one hand, speech debating issues of discrimination, speech seeking relief from “pervasive or systemic misconduct” by public officials, and speech that is “part of an overall effort to correct allegedly unlawful practices or bring them to public attention” have all been held to involve matters of public concern. By contrast, speech that “concerns essentially personal grievances” does not qualify as speech on a matter of public concern.

Wasn’t protesting police misconduct. While speech has also been found to be on a matter of public concern where it sought to vindicate constitutional rights “in the face of alleged police misconduct,” the employee’s speech at issue here was not addressed to misconduct at all. Rather, she merely identified herself as an attorney, told her coworker and the police officers that she wanted to get her coworker an attorney and union representative, and advised her friend not to say anything until such representatives arrived. She said nothing to indicate that the coworker’s arrest was constitutionally improper.

The appeals court also squarely rejected the employee argument that communicating Miranda advice in the presence of the arresting police “per se addresses a matter of public concern.” Therefore, since her speech did not address police misconduct, and she was not speaking out against perceived discrimination or official misconduct, it was not clearly established that her speech was on a matter of public concern and qualified immunity attached.

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