Federal appeals panel reinstates former university employee’s retaliation claim

Wednesday, June 7, 2000

A First Amendment retaliation suit filed by the former manager of the University of Cincinnati’s affirmative action program has been reinstated by a federal appeals court panel.

The suit alleges that John B. Johnson, an African-American who served as vice president of human resources and human relations at the school from August 1993 until January 1996, was fired when he criticized the university’s commitment to affirmative action.

After his termination, Johnson filed a civil rights lawsuit in federal court, claiming both discrimination based on race and First Amendment retaliation. Johnson alleged that he was retaliated against because he had criticized his bosses concerning implementation of the school’s affirmative action program.

U.S. District Judge Sandra Beckwith initially dismissed Johnson’s claims, including his First Amendment claim. Beckwith reasoned that even though Johnson had spoken out on a matter of public concern, the university’s interest in an efficient workplace trumped his free-speech interests.

On appeal, however, a divided panel of the 6th U.S. Circuit Court of Appeals reversed the lower court with respect to the First Amendment claim.

The panel majority on June 1 reinstated Johnson’s First Amendment claim in its decision in Johnson v. University of Cincinnati.

The panel majority determined that Johnson’s speech was on a matter of public concern — an essential element in any public employee First Amendment lawsuit.

The university contended that Johnson had not spoken on a matter of public concern because his speech was not to the public but to university officials. However, the panel majority wrote: “The fact that Plaintiff directed his complaints and concerns to Cabinet officials rather than the general public is of no consequence because the subject matter of Plaintiff’s complaints was an established matter of public concern in this circuit.”

The panel majority also determined that Johnson’s free-speech interests trumped the university’s interest in a smooth hiring process.

“Even if Plaintiff’s speech delayed the University’s hiring of prospective employees, this does not rise to the level of having a detrimental impact on close working relationships or undermining the goal or mission of the University,” the majority wrote. “To the contrary, Plaintiff’s speech regarding the University’s failure to comply … (with its affirmative action program)… promoted or advanced the University’s alleged goal of employment equality for women and minorities.”

The majority also noted that there were many “contested issues of fact” on how disruptive Johnson’s speech was and observed that the jury should make that determination.

Judge Cornelia G. Kennedy disagreed with the majority’s resolution of the First Amendment claim. She wrote that Johnson did not speak on a matter of public concern because he was only speaking about an issue specific to his job. “In the unique circumstances of this case, I do not think that the plaintiff is entitled to the protections of the First Amendment unless he can show that his speech was not integrally connected with his job,” she wrote.

“Had the plaintiff presented his concerns in a public venue, my resolution of this issue would be different,” Kennedy wrote.

Marc Mezibov, Johnson’s attorney, applauded the majority’s opinion, saying his client’s “comments were clearly on a matter of public concern.”