The court found evidence showing the sergeant’s termination was based on viewpoint discrimination, an “egregious form of content discrimination.”
A sheriff’s interests in the internal operations of his office did not outweigh the free speech interests of a patrol sergeant who was discharged after openly supporting the candidate challenging the sheriff’s re-election bid, the Tenth Circuit ruled, affirming the decision of the court below. Further finding that it lacked jurisdiction, on interlocutory appeal, to consider the sheriff’s fact-bound challenge to the lower court’s clearly-established-law holding, the appeals court affirmed the denial of qualified immunity to the sheriff on the sergeant’s free speech claim. Nor was the sheriff entitled to qualified immunity on the sergeant’s claim based on reporting unlawful discrimination, the court concluded (Duda v. Elder, July 27, 2021, Matheson, S., Jr.).
Sexual harassment allegation. When the sergeant and his daughter, a security technician and detention specialist with the sheriff’s office, attended a brunch with various coworkers in November 2016, a female deputy told them a lieutenant, who had been promoted by the sheriff, had sexually harassed her. The sergeant reported the allegation and the lieutenant, after an investigation, was found to have engaged in conduct unbecoming and was issued a disciplinary letter.
Retaliation? Several months later, the sergeant applied for a new position. On the same day he learned he had been selected for an interview, his daughter filed an internal complaint alleging she was disciplined for behavior for which others were not. An investigation failed to substantiate her claims. Around that same time, the sergeant was told his application would not progress. Although he complained, an investigation found no retaliation.
Investigations. In fall 2017, after the sheriff launched his reelection campaign, the sergeant began actively supporting the opposition candidate, who posted the sergeant’s endorsement on his campaign website. In November, the county attorney hired an investigator to look into allegations the sergeant had engaged in political activities while on duty. Although the investigator could not substantiate the allegations, a second investigation into the sergeant’s on-duty political activity was initiated the following spring. This time, the investigator found the allegations were proven by a preponderance of the evidence.
Termination. Shortly after complaining to the county attorney that sheriff’s office employees engaged in political activity while on duty, the sergeant gave an interview to a local newspaper regarding misconduct at the sheriff’s office. Not long after an article based on his interview was published, he was fired, purportedly for multiple policy violations.
Lower court proceedings. He then sued, alleging two claims under the First Amendment: (1) retaliation for protected speech in support of the opposition candidate and speech about unlawful discrimination, and (2) for retaliation for his political affiliation. On cross-motions for summary judgment, the sheriff argued he was entitled to qualified immunity while the sergeant argued that he was entitled to judgment on his First Amendment claims. The district court denied both motions.
Third Garcetti/Pickering element. On appeal, the Tenth Circuit noted that as to the sergeant’s claim based on his political speech, the district court found fact disputes precluded resolution of the third Garcetti/Pickering element—”whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests.” The lower court’s analysis, however, was incomplete, the appeals court determined, explaining that this element should have been resolved by the court as a matter of law.
The appeals court, nonetheless, affirmed on the alternative ground that this element supported a constitutional violation as a matter of law. Although the appeals court accepted, based on the district court’s findings, that the sergeant did not engage in on-duty political activity, it noted that the sheriff could have formed a reasonable belief that he did based on the investigator’s report. Even so, said the court, the sheriff’s decision to terminate him “was not based on a reasonable prediction of disruption” due to his political speech.
Tacit permission. First, the court found that by giving tacit permission for employees to voice political support for him while on duty, the sheriff severely undermined his purported interest in firing the sergeant to avoid disruption based on his political speech. Noting evidence that several employees spoke with impunity in support of the sheriff while on duty, the court found the record showed the sergeant’s termination was based on viewpoint discrimination, “an egregious form of content discrimination” that occurs “when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”
Rank and file. There was also evidence that being politically necessary to the sheriff was not necessary for the sergeant to perform his job, observed the court, noting that speech restrictions on high-ranking employees are more justifiable than on an employee who serves no confidential, policymaking, or public contact role.
In addition, while a couple of employees may have been offended by the sergeant’s purported statements, there was no evidence his political speech threatened any sheriff’s office work or compromised morale. Thus, the court found the sheriff failed to show his interest in maintaining an efficient workplace outweighed the sergeant’s free speech interest in voicing support for another candidate.
Heffernan defense. Turning to the sheriff’s contention that he fired the sergeant for violating a neutral policy prohibiting on-duty political activity, as permitted by the Supreme Court’s decision in Heffernan v. City of Paterson, the court found that even accepting the sheriff’s office had a neutral policy prohibiting on-duty political activity, the sheriff did not apply it neutrally. Rather, the court observed, there was ample evidence the sheriff’s political supporters were not punished for their on-duty political activity. “Rather than apply a speech-restriction policy neutrally, [the sheriff] engaged in viewpoint discrimination, which violates the core of the First Amendment.”
And while the sheriff’s counsel argued that Heffernan requires only that a policy is neutral on its face and that it need not be neutrally applied to all, the court pointed out that in remanding the case to the Third Circuit, the Supreme Court directed it to consider whether a neutral policy prohibiting overt involvement in a political campaign “existed” and “whether Heffernan’s supervisors were indeed following it.”
Qualified immunity. Next, the court addressed the sheriff’s argument that not “every reasonable official would have known that terminating a sheriff’s deputy for multiple policy violations, including violation of a neutral and constitutional policy prohibiting on-duty political activity, confirmed by an independent investigation, would contravene the First Amendment.” But because the sheriff effectively disputed the facts alleged by the sergeant rather than raising a legal challenge to the denial of qualified immunity based on those facts, the court found it had no jurisdiction on interlocutory appeal to consider that argument.
Claim based on reporting misconduct. Finally, the court turned to the sheriff’s argument that no law clearly established it was unconstitutional to terminate the sergeant for his reporting speech. Citing its 1989 decision in Wulf v. City of Wichita, which was substantially similar to the facts here, the court noted that under Wulf, it was sufficiently clear that every reasonable official in the sheriff’s position would have understood that firing the sergeant based on his speech reporting misconduct to the newspaper was unconstitutional.
First, said the court, the sergeant was not himself harassed but instead spoke out about alleged sexual harassment and out of concern for the culture and practices of the office. Thus, the sexual harassment allegations were more than just personal grievances. Further, the speech concerned not just sexual harassment but a wide range of misconduct. “Because in both Wulf and this case the plaintiffs were terminated after reporting to a local newspaper about misconduct within a law enforcement agency, including sexual harassment directed at someone other than the plaintiff, there is ‘substantial correspondence between the conduct in question’ and Wulf, defeating qualified immunity” for the sheriff, said the court, affirming the denial of qualified immunity on this claim as well.
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