By Marjorie Johnson, J.D.
A county sheriff and undersheriff were entitled to qualified immunity from several subordinates’ claims of First Amendment retaliation, the Tenth Circuit ruled in reversing the lower court’s denial of their motion to dismiss. The law was not clearly established that a lieutenant’s refusal to make a false statement to the media fell outside of her duties as a public employee and was thus protected speech. It was also not clear that placing a sergeant and his children under a criminal investigation or placing three commanders on paid administrative leave (and allegedly causing humiliation by accompanying actions) constituted adverse employment actions (Lincoln v. Maketa, January 17, 2018, Bacharach, R.).
The First Amendment retaliation claims were brought by a lieutenant, a sergeant, and three commanders. The lieutenant and the sergeant based their retaliation claims on a scheme by the sheriff and undersheriff to influence an upcoming election for sheriff by smearing one of the candidates. The commanders based their claims on retaliation for their prior complaints about improper workplace practices. Finding that the subordinates’ allegations were sufficient to defeat qualified immunity, the district court denied the individual defendants’ motion to dismiss.
Lieutenant’s statement to the media. The lieutenant claimed she was transferred to the midnight shift in retaliation for her statements to the media about a missing internal affairs document that the sheriff and undersheriff had secretly taken with plans to use it against the political opponent. The sheriff ordered the lieutenant, who oversaw the internal affairs unit, to falsely tell the media that it was stolen by supporters of the political opponent. She spoke to the media, but instead of giving the story crafted by the sheriff, she “spoke truthfully.”
Sergeant’s political support of rival. The sergeant claimed that, in retaliation for his political support for the political opponent, the sheriff subjected him and his children (who worked at the sheriff’s office) into a criminal investigation into the “theft” of the missing internal affairs document.
Commanders’ EEO complaints. The three commanders claimed that they suffered retaliation for filing complaints about the sheriff and the undersheriff with the EEOC and the county board of commissioners. They claimed that just three hours after informing the undersheriff of the complaints, they were placed on paid administrative leave, had their work equipment confiscated, and were escorted out of the building. In the aftermath of the complaints, the sheriff and undersheriff also filed internal affairs complaints against two of them.
No First Amendment violation. To invoke First Amendment protections, the lieutenant had to demonstrate that she was speaking as a private citizen rather than as a public employee. However, for purposes of qualified immunity, the law was not clearly established as to whether her duties included her discussion with the media. Since she was the head of internal affairs and spoke to the media about an internal affairs matter at the explicit direction of her supervisor, her speech seemed to have been “commissioned” by her employer.
In some circuits, her disobedience might affect whether she was speaking as part of her official duties, but this approach is not universal and the Tenth Circuit had not spoken on this issue. Therefore, in the absence of applicable precedent, the sheriff lacked clear guidance on whether the lieutenant was speaking as part of her official duties and any alleged retaliation would not have violated a clearly established constitutional right.
Criminal investigation not clearly adverse. The Tenth Circuit also determined after a careful analysis that the sergeant also failed to defeat qualified immunity since the law did not clearly establish that the alleged investigations constituted adverse employment actions. The law was not settled on this issue and the instant action was distinguishable from a prior holding finding that a plaintiff’s former employer retaliated by maliciously encouraging the filing of criminal charges, culminating in a trial.
Though the sergeant and the district court relied on general standards, noting that an adverse employment action is one that would deter reasonable persons from exercising their First Amendment rights, the Tenth Circuit emphasized that the analysis of qualified immunity is based on specific facts and not abstract principles. Since the sergeant failed to demonstrate that the criminal investigation would “obviously” constitute an adverse employment action, the sheriff was entitled to qualified immunity on this claim.
The commanders also failed to show that they clearly suffered an adverse action when they were placed on paid administrative leave, humiliated by being escorted out of the building and relieved of their work equipment, and investigated through internal affairs. Because there was no clearly established authority treating the paid administrative leave as an adverse employment action, the sheriff and undersheriff were entitled to dismissal of that claim.
The appeals court also rejected the commanders’ attempt to treat the humiliation that they suffered as a clearly established adverse employment action and was also unconvinced that the combination of the actions was sufficient to meet their burden. In sum, because the sheriff and undersheriff lacked clear guidance on whether the alleged conduct created an adverse employment action, they were entitled to qualified immunity on the commanders’ claims.
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