Labor & Employment Law Daily VISTA worker, canned for phone-sex memoir, has First Amendment retaliation claim revived
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Friday, December 6, 2019

VISTA worker, canned for phone-sex memoir, has First Amendment retaliation claim revived

By Joy P. Waltemath, J.D.

There was no evidence the National Guard’s family programs were impaired because the author of a phone-sex memoir was allowed to collect and enter organizations’ contact information into a database on the Guard’s behalf.

A VISTA worker’s previous pseudonymous publication of a memoir reflecting her experience as a phone-sex operator was constitutionally protected speech, the Seventh Circuit held, and her firing from the Indiana National Guard as a VISTA worker could have been retaliatory. As a result, the court reversed summary judgment granted to the Guard’s Family Program Director on her First Amendment retaliation claim under Section 1983. The director was not entitled to qualified immunity because it was clearly established the book was protected speech and there was no evidence of actual or future disruption to the Guard’s efficiency (Harnishfeger v. United States, December 3, 2019, Hamilton, D.).

Before a VISTA worker had applied or been assigned to the Indiana National Guard’s Family Program Office, she authored a short book, published under a pseudonym, about her previous time as a phone-sex operator called Conversations with Monsters. The book recounted five of the worker’s most horrifying phone-sex calls and addressed the social role of phone-sex operators based on her own experiences.

Database of contact information. A month after publishing Conversations, the worker began a one-year commitment with the Indiana Army National Guard as a member of the Volunteers in Service to America (VISTA) program, a federal antipoverty program administered by the Corporation for National and Community Service (CNCS). She was responsible for maintaining a database of information on service providers to whom veterans and their families could turn for help. During her three months in that role, she had only about a dozen contacts with service providers seeking contact information—the only times she interacted with the public on the Guard’s behalf.

Facebook “friends” with supervisor. About three months after she began, her National Guard supervisor asked to become her Facebook “friend,” a request which the VISTA worker felt she could not reject. Her Facebook account was private; only friends could access her posts. The supervisor then explored the worker’s Facebook history and discovered an earlier link to the book, bought the book from Amazon, discovered that the worker was its author, and then contacted the Guard’s State Family Program Director. The director demanded that CNCS remove the VISTA worker, and it did.

After being placed on “administrative hold” and told that if she deactivated her Facebook account, she would be permitted to seek another sponsor, the VISTA worker deactivated Facebook. But unable to find another suitable sponsor for the remainder of her VISTA service in the short time she was given, the worker was cut from the program entirely. She filed suit within two weeks against several individuals in their personal and official capacities, as well as the U.S., alleging violations of her rights under the First Amendment and the Administrative Procedure Act (APA). The district court granted the defendants summary judgment.

Book was protected speech. On appeal, the Seventh Circuit first focused on whether the worker’s speech was constitutionally protected and found that it was. Her situation was somewhat atypical, noted the court: “When the employee’s speech is neither at work nor about work, however, a different path to Pickering” (the balancing test) comes into play, set forth by the U.S. Supreme Court in United States v. National Treasury Employees Union. The key issues under NTEU are whether the employee’s speech is “made outside the workplace,” “involve[s] content largely unrelated to [her] government employment,” and is “addressed to a public audience” or involves “any matter for which there is potentially a public.” If so, and the employer cannot show the employee’s speech was linked by her “deliberate steps” to the employer’s mission, purpose, or image, Pickering balancing applies.

Not linked to VISTA service. Here, the VISTA worker’s book was written and published a month before she began her VISTA service and was entirely unrelated to CNCS, VISTA, and the Guard. The appeals court noted it was written for “a general audience on the personal experiences of sex workers and their social role, matters for which there is undoubtedly a public. [She] never deliberately linked the book to her VISTA service, which had not even begun at the time of publication.” Merely identifying the author as a public employee (which required an extensive search of her private Facebook) was not enough, concluded the court, finding Pickering balancing applied.

Pickering balance. It is the public employer’s burden to show that the Pickering balancing defense weighs in its favor. Here the appeals court found the public employer’s defense of the district court’s Pickering balance attempted to rely on facts not before the district court, which it would not consider. The defense offered justifications for removing the worker that might have been considered by decisionmakers at the time but for which there was no actual evidence.

Actual concerns. The only evidence of the defendants’ actual concerns with the book from the summary judgment record was the Family Program Director’s letter to CNCS seeking the worker’s removal from her Guard assignment. That letter said the book, and the worker’s single, pre-VISTA Facebook post announcing its publication, substantially diminished the worker’s “effectiveness as an AmeriCorps VISTA member.” The letter contended that what was found on the worker’s Facebook account did not favorably represent the Family Program Office or “create a culture that reduces violent behavior within the ranks or emphasizes and encourages help-seeking behaviors.”

These concerns, however, did not risk compromising the Guard’s mission or effectiveness, as balanced against the worker’s constitutionally protected speech, given the routine clerical nature of her responsibilities. The appeals court found “no evidence and no basis for believing that veterans or organizations serving them would distrust the Guard if the known author of a phone-sex memoir were permitted to collect and enter the organizations’ contact information into a database on the Guard’s behalf.” Only a single “private” Facebook post linked the book to the VISTA worker. Plus, the court pointed out that the book “disapproves sexual abuse of children in the strongest terms,” and neither promotes violence nor discourages victims of violence from seeking help. Accordingly, the appeals court found the defendants had failed to prove the Pickering balance favored them.

Section 1983 “color of state law.” The Guard’s Family Program Director contended she was acting under federal law, not state law, and Section 1983 addresses actions by persons acting under color of state law, not federal law. However, the Indiana Army National Guard was not federalized at any time relevant to the case; the governor of Indiana is the Guard’s commander in chief; and the director’s letter seeking the worker’s removal was on letterhead bearing Indiana’s state seal. “All signs point to state action, not federal,” said the court, so Section 1983 offered a remedy.

No qualified immunity. Nor was the director entitled to qualified immunity. The book was protected speech under clearly established law: “It was speech neither at work nor about work; it was addressed to a general audience; and there was no sign that [the worker] deliberately linked its content or message to the Guard’s mission, purpose, or image.” It also was clearly established that the employer’s side of the Pickering balance must be supported with evidence of actual disruption or a reasonable belief at the time in future disruption.

The record showed no actual disruption; no articulation of a belief in future disruption with respect to the idea that the book does not “favorably represent” the Guard; and no rational connection between the Guard’s position against violence and the book—or the worker’s VISTA placement. To the appeals court, these explanations appeared “so flimsy” that they could infer not objective reasonableness by the director but “only disgust.” Qualified immunity did not apply.

Other claims affirmed. But as for the worker’s claims against two other individuals and the United States, the appeals court agreed she failed to show a triable issue on any federal defendant’s personal participation in a constitutional violation or a triable issue on her APA claim. It affirmed summary judgment in the federal defendants’ favor but reversed and remanded with respect to the Guard’s Family Program Director.

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