U.S. Supreme Court Protects Public Sector Employee's First Amendment Rights

Central Alabama Community College hired Edward Lane to be Director of Community Intensive Training for Youth (CITY).  After learning CITY had budget problems, he audited the program’s expenses.  During the audit, Lane found out Schmitz, an Alabama state representative, was on the CITY payroll, but not working.  Lane pressed the issue, demanding Schmitz report to work.  She refused.  Lane fired Schmitz.

Schmitz took offense that Lane would try to save the tax payers some money by firing someone collecting a salary for not doing any work.   She allegedly told another employee she would seek retribution against Lane and that she would see to it that his agency would not receive favor from the legislature.  The FBI became involved, and Schmitz was later convicted of corruption charges.   Lane testified under oath before a grand jury and at trial, under subpoena.

Meanwhile, the CITY agency continued its budget woes.  Lane's boss, Franks, later laid off Lane and another probationary employee.  Lane sued Franks under 42 U.S.C. 1983 for violation of his civil rights (First Amendment right to testify without retaliation, among other things).  He sued Franks in his "official capacity" as a substitute for the state, and in his individual capacity.

But the lower courts held that Lane was not entitled to First Amendment protection because the testimony he haves were related to his official duties.  Precedents establish that when government employees speak within the course of their duties, the First Amendment provides minimal protection, because of the employer's interest in orderly operation of its work place. 

The U.S. Supreme Court accepted the case to determine if the First Amendment protects employees who provide testimony under oath on matters that concern the job site.  The Court unanimously held that it does, thereby giving Lane a retaliation claim against Franks in his "official capacity" as a representative of the state.  (Lane sought reinstatement and equitable relief against Franks in his official capacity).  

From the Court's unanimous opinion:

Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.

The Court also held:

The content of Lane’s testimony—corruption in a public program and misuse of state funds—obviously involves a matter of significant public concern.

The Court also held that the government did not have an adequate justification to tip the balance in its favor:

an employee’s sworn testimony is not categorically entitled to First Amendment protection simply because it is speech as a citizen on a matter of public concern. Under Pickering, if an employee speaks as a citizen on a matter of public concern, the next question is whether the government had “an adequate justification for treating the employee differently from any other member of the public” based on thegovernment’s needs as an employer. * * * 

Here, the employer’s side of the Pickering scale is entirely empty: Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor. There is no evidence, for example, that Lane’s testimony at Schmitz’ trials was false or erroneous or that Lane unnecessarily disclosed any sensitive, confidential,or privileged information while testifying . . . .  

So, Lane's case against the state could proceed via his suit against Franks in his "official capacity."  But the Court also held that the lawsuit against Franks personally would be barred by "qualified immunity.":

Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12). Under this doctrine, courts may not award damages against a government official in his personal capacity unless “the official violated a statutory or constitutional right,” and “the right was ‘clearlyestablished’ at the time of the challenged conduct.” * * * 

The relevant question for qualified immunity purposes is this: Could Franks reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities? Eleventh Circuit precedent did not preclude Franks from reasonably holding that belief. And no decision of this Court was sufficiently clear to cast doubt on the controlling Eleventh Circuit precedent. * * * *

So, Lane's official capacity case was returned to the lower courts.  Franks is off the hook personally.

This case is Lane v. Franks and the opinion is here.

Ninth Circuit: Public Sector Independent Contractor Has No Property Interest and No Section 1983 Claim

42 U.S.C. Section 1983 allows public sector workers to challenge certain government employer action against public sector workers. The law permits state employees to challenge deprivations of due process or equal protection that amount to violations of the constitution.  But to use Section 1983, the employee must demonstrate a property right or liberty interest that the government employer deprived.  Many civil service workers are employed under conditions that virtually guarantee them a job that cannot end without sufficient cause.  Section 1983 lawsuits involving employment actions often are predicated on that sort of employment relationship.

The 9th Circuit Court of Appeals in Blantz v. California Dept. of Corr. and Rehab. considered Blantz's claim that the 14th Amendment protected her engagement as an independent contractor.  Here are the facts as stated by the court:

In July 2006, Blantz entered into a written agreement with Newport Oncology and Healthcare, Inc. (NOAH) to work as a nurse practitioner for the CDCR. The CDCR contracts with NOAH to identify available healthcare professionals and refer them to the CDCR to work in medical facilities owned by the CDCR throughout California. Blantz agreed with NOAH to provide medical services to the CDCR as an independent contractor. Pursuant to the agreement, Blantz’s wages would be paid by NOAH, not by the CDCR.

The CDCR ended the engagement without explanation.  Blantz then tried to obtain a new job with CDCR, but her references did not pan out.  So, she sued CDCR and officials under Section 1983, claiming that her independent contractor arrangement could not be ended without due process (e.g., a hearing and notice of the reasons etc.).

Blantz claimed that CDCR conferred a property right to her independent contractor arrangement by documents that CDCR gave her at orientation. But CDCR's contract with NOAH said CDCR could request her removal essentially at will.

The district court dismissed her case, and the Ninth Circuit affirmed.  The court would not decide whether an independent contractor - rather than an employee - could every have a 14th amendment interest in due process related to her engagement.  The court explained why Blantz's claim failed:

We hold that a state agency does not create constitutionally protected property interests for its independent contractors simply by instituting performance review procedures. Even assuming independent contractors can ever have constitutionally protected property interests in their positions, something more is required: either an affirmative grant of tenure or a guarantee from the government that termination can occur only for cause. Absent such assurances, there is no cognizable basis for an independent contractor to assert an entitlement to her continued position that is constitutionally protected. Because Blantz’s orientation documents did not contain such assurances, we affirm the district court’s dismissal of Blantz’s federal deprivation of property claim.

The court then rejected Blantz's claim that a poor reference deprived her of "liberty" when she was unable to obtain a new position with CDCR. 

the defendants here are not alleged to have precluded Blantz from all government employment, only employment with the CDCR. Blantz allegedly has been barred from employment with one division of the state government; but she is free to seek other nursing positions with the state. Thus, she has not alleged an unconstitutional deprivation of liberty.  See Llamas, 238 F.3d at 1128 (holding that the government had not deprived plaintiff of liberty when plaintiff was barred from future employment with one community college district, but was  free to pursue employment elsewhere).

This case is Blantz v. California Dept. of Corr. and Rehab. and the opinion is here.

 

SV Makes Some Law: No Section 1983 Claims Based on ADA

It's nice to blog about one of your own cases, and even better when it's a victory.  So, Josephine Okwu was a Caltrans employee, who agreed to disability retirement status.  She then wanted to be reinstated from disability retirement status to her former job. Denied, she was unsuccessful under civil service procedure. She then sued CalPERS and Caltrans officials in federal court under 42 U.S.C. Section 1983 for violation of her civil rights.

She had to rely on Section 1983, she believed, because she could not sue her employer, Caltrans, under the Eleventh Amendment.  She could not sue CalPERS, either.  She could not use the ADA to sue the individuals in any court, because individuals cannot be held liable under the ADA.

The district court dismissed the case because Section 1983 cannot be used as a substitute claim for ADA claims that are not viable in federal court. The Ninth Circuit affirmed:

We conclude that Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that Okwu’s allegations of fact do not state a claim under the Equal Protection Clause. We therefore affirm.

The case is Okwu v. McKim and the opinion is here.