City worker who helped friend with lawsuit wins a round

Wednesday, May 2, 2012

A mayor who prohibited an employee from participating in or assisting with a former employee’s discrimination lawsuit is not entitled to qualified immunity, the 6th U.S. Circuit Court of Appeals has ruled.

Lindsey Whitney began working for the city of Milan, Tenn., in 2006 in the street department. In 2007 she began training under the city recorder, Keri Williams. Whitney and Williams were close friends. In July 2008, Mayor Chris Crider assigned Whitney a deputy clerk position in City Hall in part on Williams’ recommendation.

However, in September 2008 Crider fired Williams for reasons not stated in the appeals-court opinion. Later that day, Crider called Whitney into his office and ordered her to have no contact with Williams and not to participate in or assist Williams with any lawsuit that Williams might bring against the city. Crider later asked Whitney several times whether she had contacted Williams, who was her landlord.

In October 2008, Williams did file a lawsuit against the city, alleging gender discrimination and retaliation. At some point Whitney gave a deposition in that lawsuit and feared for her job. Crider later transferred Whitney from her deputy clerk position to work for the city’s fire chief, though she suffered no loss in pay.

In May 2009, Whitney sued Crider and the city, alleging violation of her First Amendment rights to association and claiming retaliation against her for her protected speech. She also contended that Crider violated the First Amendment by ordering her not to communicate with Williams. Whitney called this order a prior restraint on expression.

In July 2010, U.S. District Judge J. Daniel Breen of the Western District of Tennessee rejected Whitney’s freedom of association and First Amendment retaliation claims. However, the next month Breen refused to dismiss the prior-restraint claim that Crider had violated the First Amendment by ordering Williams not to speak with Williams or participate in Williams’ lawsuit.

Crider had argued that he was entitled to qualified immunity from a lawsuit on the prior-restraint claim, but the district judge denied it. Crider filed a pretrial appeal on the denial of qualified immunity.

On April 24, 2012, a three-judge panel of the 6th Circuit affirmed the denial of qualified immunity in Whitney v. City of Milan.

Government officials are entitled to qualified immunity from lawsuits if they don’t violate clearly established principles of constitutional law. Often in qualified-immunity cases, judges first determine whether a constitutional right has been violated. Then they determine whether that right was clearly established in the law at the time of the defendant’s conduct.

Under the U.S. Supreme Court’s decision in Pearson v. Callahan (2009), judges have the option of proceeding directly to the “clearly established” test and not address whether there has been an underlying constitutional violation. Judge Breen and later the 6th Circuit panel decided to inquire into whether a constitutional violation had occurred.

On that first question, the 6th Circuit distinguished between barring Whitney’s personal communications with Williams and prohibiting Whitney from participating in Williams’ lawsuit.

The 6th Circuit determined that Whitney had no First Amendment claim with respect to personal communications with Williams, because that claim did not include speech on a matter of public concern — a term of art in public employee-First Amendment lawsuits. A public employee’s First Amendment claim must allege that the employee was punished for speaking out on matters of public concern or importance rather than merely engaging in private speech.

However, the 6th Circuit found that the mayor’s order did “restrict private-citizen speech on a matter of public concern when he prohibited Whitney from promoting Williams’s allegations, including barring her participation and assistance in a lawsuit exposing those claims.” The panel said that speech about discrimination and abuse of power involved a matter of public concern. This finding, though not a final ruling on Whitney’s claims, means that a trial on the issue can proceed.

Crider contended that Whitney didn’t raise a valid First Amendment claim, because Crider’s interests in a disruption-free workplace trumped Whitney’s right to free speech. He argued that an employer must have the ability to limit employee contact with a disgruntled former employee, because such communications could lower morale and invite disruption.

The 6th Circuit panel rejected that argument, finding that Crider’s interests did not predominate in part because “he subjected her to an indefinite gag order without any showing that Whitney had previously caused disruptions in the workplace.”

“Crider’s speculative concerns of workplace disharmony are insufficient to overcome Whitney’s interest in speaking as a private citizen on a matter of public concern,” the panel wrote.

The 6th Circuit also found that Whitney’s rights to discuss and participate in the lawsuit were clearly established enough for a trial on her claims to go forward.

Teresa Luna, one of Whitney’s attorneys, says the case now goes back to the lower court.

“Now we are awaiting a trial date to be reset and a new scheduling order,” she told the First Amendment Center Online. “The case will go to trial on the First Amendment issue and hopefully the state issues as well. We have direct evidence of gender discrimination and feel confident that this claim will make it past summary judgment as well.”

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