Employment Law Daily Qualified immunity can’t quell therapist’s cat’s paw claims that officials forced her firing for Facebook post
Monday, January 29, 2018

Qualified immunity can’t quell therapist’s cat’s paw claims that officials forced her firing for Facebook post

By Joy P. Waltemath, J.D.

Refusing individual officials’ motion to dismiss a complaint on qualified immunity grounds, a federal district court in Texas found that a therapist for a “quasi-governmental” children’s services agency adequately alleged that the officials demanded she be fired for her critical Facebook post or the agency would find its funding pulled. It was clearly established, said the court, that a non-final decision-maker like the officials here could be held liable for acting as a functional final decision-maker by creating a “cat’s paw” scenario. Finding the therapist’s First Amendment retaliation claims otherwise pleaded with sufficient specificity, the court also refused to dismiss her Section 1983 civil conspiracy claim (Rodriguez v. Children’s Alliance of South Texas, January 23, 2018, Rodriguez, X.).

Facebook post criticizes county. The therapist for a “quasi-governmental agency” that provides children’s services alleged that although she had received good performance reviews, after she publicly criticized the local government’s response to a dog’s death in a police car in a Facebook post, she was fired. Specifically, she claimed that her employee handbook stated “Employees may engage in partisan political activities during their off-duty hours,” and in response to newspaper reports that a police dog had died after it was left in a parked but running patrol car for seven hours, she posted on Facebook a harshly critical comment about the decision to not charge the deputy and to allow him to continue to work.

“Outrage.” Her employer was outraged at her post, she claimed, detailing that a county judge contacted the executive director of her agency employer and demanded she retract her comments. Although she did, the officials were not satisfied and demanded another revised retraction, which she then published. Nonetheless, she alleged the sheriff, the county treasurer, and the judge then conspired to tell the executive director they would pull the agency’s funding if she were not fired, and as a result, she lost her job. She then sued the agency and several officials individually under 42 U.S.C. § 1983 for First Amendment retaliation and conspiracy, and the individual defendants moved to dismiss.

Qualified immunity and cat’s paw liability. The judge, the county treasurer, and the sheriff claimed qualified immunity as a reason to dismiss her complaint; the burden was on the therapist to rebut qualified immunity by showing that the constitutional right allegedly violated was “clearly established” at the time of the challenged conduct. Here, the individuals challenging her complaint were not final decision-makers in her termination, which they argued was a basis to grant them qualified immunity, but she argued Fifth Circuit precedent, in Depree v. Sanders (2009), that a non-final decision-maker can also be held liable for acting as a functional final decision-maker by creating a “cat’s paw” scenario. Whether a final decision-maker served as the “cat’s paw” here was a question of fact, said the court, that should not be disposed of at the motion to dismiss stage. Finding that it was settled law that a non-final decision-maker can be held liable for First Amendment retaliation because the therapist alleged that the final decision-maker was the “cat’s paw” of non-final decision-makers, the court would not dismiss the claims against the individual defendants on qualified immunity grounds.

Specific retaliatory conduct. As for the argument that the complaint failed to allege specific facts that described unconstitutional conduct by the individual defendants, the court disagreed. The therapist claimed that the individuals defendants were outraged about her Facebook post; that the judge contacted the executive director and demanded she retract her post; that the individuals were not satisfied with the first retraction and demanded she revise the apology; and that the treasurer conspired with the judge and the sheriff to pull funding from the agency if the executive director did not fire her. That was specific enough to avoid a motion to dismiss.

Conspiracy. Nor would the court dismiss the therapist’s civil conspiracy claims under Sec. 1983 alleging that her agency employer knowingly and willfully conspired and agreed with the individual officials to fire her because she engaged in free speech to comment on a matter of public concern. The court pointed out that the therapist was not required to show an agreement between public and private actors, as the individual defendants argued. She only had to allege a conspiracy involving state action, and that she was deprived of her First Amendment rights in furtherance of that conspiracy by a party to the conspiracy.

She sufficiently alleged state action by her employer, a quasi-governmental entity, and its director; the judge; the treasurer; and the sheriff—all of whom are public officials. And she alleged a conspiracy by stating that the judge contacted the executive director, demanding she retract her Facebook post. When those individuals were dissatisfied with her apology, she claimed that the treasurer, the judge, and the sheriff conspired to pull funding from her agency employer if its director did not terminate her. Again, that was enough to state a valid claim for civil conspiracy under Sec. 1983.

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