Employment Law Daily McDonnell Douglas framework doesn’t apply to First Amendment political retaliation claims
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Thursday, April 21, 2016

McDonnell Douglas framework doesn’t apply to First Amendment political retaliation claims

By Kathleen Kapusta, J.D. After finding it was not precluded by the U.S. Supreme Court’s decision in Johnson v. Jones from reviewing the district court’s order denying qualified immunity to the defendant, the Tenth Circuit rejected the application of McDonnell Douglas to First Amendment retaliation cases. Indeed, said the court, "more than a few keen legal minds have questioned whether the McDonnell Douglas game is worth the candle even in the Title VII context, let alone well adapted for new adventures in far-flung environments like this one." Despite the lower court’s use of the McDonnell Douglas framework in its analysis, the appeals court affirmed the lower court on alternate grounds, holding that a triable claim existed as to whether the plaintiff was discharged in retaliation for exercising her right to free political association (Walton v. Powell, April 19, 2016, Gorsuch, N.). Rigged. A political appointee and close associate of an elected Republican land commissioner in New Mexico, the employee was appointed to a senior civil service job after he decided not to seek reelection. Not long after a Democratic candidate was elected, a TV reporter claimed that the employee was "distinctly unqualified" for her new job and that her hiring was "rigged." The new commissioner ultimately removed the employee from her job, prompting her lawsuit alleging he unlawfully retaliated against her for exercising her right to free political association in violation of the First Amendment and Section 1983. Although the new Commissioner claimed qualified immunity, the district court denied his requested relief and set the case for trial. Johnson. The employee first challenged the Tenth Circuit’s power to hear the appeal under Johnson. In that case, the Supreme Court indicated that, when reviewing an order denying qualified immunity at the summary judgment stage, an appeals court should usually take as true the facts the district court has determined a reasonable jury could find at trial. While the employee argued that the appeals court was powerless to assess the lower court’s holding that a reasonable jury could find her dismissal was caused by her political affiliation, the Tenth Circuit pointed out that Johnson did not require it to accept the district court’s assessment that those facts sufficed to create a triable question on any legal element essential to liability. "That latter sort of question is precisely the sort of question Johnson preserves for our review," said the appeals court. McDonnell Douglas. Next, the court rejected the defendant’s argument that the McDonnell Douglas analysis applies to First Amendment retaliation claims. Noting that "almost every circuit to have considered whether McDonnell Douglas should apply in First Amendment discrimination or retaliation cases has thought the idea a poor one," the court pointed out that the Supreme Court, in Mt. Healthy City School District Board of Education v. Doyle, held that a First Amendment retaliation plaintiff must prove (using either direct or circumstantial evidence) that her political affiliation was a "substantial" or "motivating" factor behind the adverse employment action. While the Court offered this test in the course of reviewing a decision after trial, the Tenth Circuit observed that it could "think of no reason why more by way of test or gloss might be needed." Merits. Refusing to vacate the lower court’s decision despite its application of the McDonnell Douglas framework, the appeals court pointed out that it was entitled to affirm the decision on alternative grounds that the district court didn’t consider if those grounds were adequate, apparent in the record, and sufficiently illuminated by counsel on appeal, as was the case here. First, the court rejected the defendant’s argument that the employee’s affiliation with the commissioner wasn’t protected by the First Amendment because it didn’t involve a matter of public concern. Citing Gann v. Cline, the court explained that it has repeatedly held that when a government employer fires a protected civil service employee for "failing to endorse or pledge allegiance to a particular political ideology," the employee generally does state a triable claim for retaliation in violation of the First Amendment’s guarantee of free political association. Although Gann predated the court’s subsequent decision in Merrifield v. Bd. of Cty. Comm’rs, and thus didn’t expressly address the public concern requirement announced in Merrifield, the defendant didn’t mention Merrifield on appeal. "So while interesting questions about Gann’s controlling effect and its compatibility with Merrifield may remain for other parties to address in other cases, we are given no reason to address them here," said the court, reasoning that for "now and in the absence of any suggestion otherwise, we assume our precedents Gann and Merrifield can coexist peaceably enough and, on that premise, hold a triable claim remains." As to the defendant’s assertion that as a matter of law no reasonable factfinder could find the employee’s political affiliation was a "substantial" or "motivating" factor in her dismissal, the court pointed to evidence of her extensive political affiliations with the former Commissioner and his party, news report critical of her civil service appointment, and evidence the defendant was aware of the report. Further, there was evidence of harassment from the first day of his new administration and close temporal proximity between his negative comments regarding her civil service appointment and the announcement of her termination. Taken together, this was more than enough to permit a reasonable jury to find her affiliation was a substantial or motivating factor in her dismissal. Finally, the court found that the employee’s rights were clearly established by Gann in 2008, well before the events underlying this lawsuit. Accordingly, the court affirmed the district court’s decision.

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