By Nadine E. Roddy, J.D.
A federal district court in Michigan has found plausible the First Amendment retaliation and disability discrimination claims of a disabled veteran who, as a state employee, was disciplined for minor infractions and then terminated after he complained of discrimination by a manager who told other workers that the employee “looked crazy” in a Facebook picture he had posted of himself in a Santa Claus outfit while holding a semi-automatic rifle. However, the court found that the individual defendants were entitled to qualified immunity on his claim of Second Amendment retaliation, so it granted the employer’s motion to dismiss in part (Congden v. Michigan Department of Health and Human Services, May 29, 2018, Goldsmith, M.).
Complained of bias. The employee is a disabled veteran, diagnosed with PTSD and anxiety after serving in the U.S. Army. He had an annual tradition, unrelated to his employment, of dressing as Santa Claus for a charity event. One year he photographed himself at home wearing his Santa Claus outfit and holding his legally purchased semiautomatic rifle. He then posted the picture to his Facebook page. A short time later, a manager at the Department viewed the post and warned the employee’s coworkers to beware of him because he was a veteran, owned firearms, and “looked crazy” in the Facebook picture. After learning of the manager’s comment, the employee complained of discrimination to his state representative. He also informed to other Department managers, disclosing that he is a disabled veteran and objected to the comments.
Disciplined and deemed “unfit.” Two weeks after his complaint, the employee received a disciplinary action for the first time at the Department. Over the next several months, he continued to receive write-ups for minor infractions, such as falling behind on documentation and making simple grammatical errors, even though other employees were not disciplined for identical conduct. At the employee’s nine-month review, he was informed that he was “emotionally unfit” for his position and would be discharged before the end of his probationary period. Subsequently the employee was allegedly constructively discharged.
He filed suit against the Department and three of its managerial employees, asserting claims of First Amendment retaliation, Second Amendment retaliation, and disability discrimination under the ADA and Rehab Act. The defendants moved to dismiss the complaint.
Second Amendment retaliation. The individual defendants moved to dismiss the Second Amendment claim on the basis of qualified immunity, arguing that at the relevant time there was no clearly established right to be free from retaliation for possessing a weapon. The court first noted that to be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be settled law, which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority. In this case, although the Supreme Court clearly held in its 2008 decision of District of Columbia v. Heller that the Second Amendment confers an individual right to keep and bear arms, the Court did not hold—expressly or impliedly—that there is a Second Amendment right to carry a semiautomatic rifle like the one depicted in the employee’s Facebook post. Thus the individual defendants were entitled to qualified immunity on the Second Amendment retaliation claim.
First Amendment retaliation. The employee asserted that the defendants engaged in two forms of First Amendment retaliation against him: (1) by constructively discharging him because he raised concerns to his state representative, coworkers, and superiors regarding the manager’s comment about his Facebook post; and (2) by retaliating against him for the Facebook post itself. The defendants argued that the first theory failed to state a claim, while the second was barred by qualified immunity.
Concerning the first claim, the court rejected the argument that his complaints were not protected First Amendment activity. On the contrary, all of the employee’s complaints were made in his capacity as a citizen. His speech to all three individuals was best characterized as voicing concern that a colleague (a public official) was engaging in unlawful discrimination. Further, as the Sixth Circuit has held, statements relating to charges of discrimination leveled at public employers always involve matters of public concern. Finally, the employee’s interest as a citizen in speaking on the matter outweighed the state’s interest, as an employer, in promoting the efficiency of its public services. The defendants did not argue, and it could not be inferred from the complaint, that the employee’s complaints to his state rep or to the managers impeded the Department’s operations. Thus, the defendants’ motion to dismiss on this ground was denied.
On the second claim, the court held that the individual defendants were not entitled to qualified immunity, as the law was clearly established at the relevant time that Facebook posts are protected First Amendment activity.
Disability discrimination. Concerning the Rehab Act claim, the court stated that a simple review of the complaint revealed that the employee had properly alleged unlawful discrimination by the Department on the basis of his disability of PTSD and anxiety. The court noted the close temporal proximity of the Facebook post, the manager’s comment, the employee’s informing the other managers of his disabled veteran status, and the first disciplinary action taken against him. The pattern of disciplinary write-ups for minor infractions, for which other employees were not disciplined, lent further support to the claim of discrimination, as did the manager’s statement at the nine-month review that the employee was “emotionally unfit” for his job. The motion to dismiss the Rehab Act claim was denied. On his ADA claim, the court noted that the employee sought only injunctive relief, and thus this claim was not barred by the Eleventh Amendment.
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