Morgan v. Robinson

• Decision Date: 02 February 2018
• Docket Number: No. 17-1002,17-1002
• Citation: 881 F.3d 646
• Parties: Donald MORGAN, Plaintiff-Appellee v. Michael ROBINSON, Washington County Sheriff, an individual, Defendant-Appellant Washington County, Nebraska, Defendant
• Court: U.S. Court of Appeals — Eighth Circuit

881 F.3d 646

Donald MORGAN, Plaintiff-Appellee

v. Michael ROBINSON, Washington County Sheriff, an individual, Defendant-AppellantWashington County, Nebraska, Defendant

No. 17-1002

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2017

Filed: February 2, 2018

Rehearing En Banc Granted, Opinion Vacated March 21, 2018

Amy S. Jorgensen, C. Thomas White, Thomas M. White, White & Jorgensen, Omaha, NE, for Plaintiff–Appellee.

Charles W. Campbell, Angle & Murphy, York, NE, for Defendant–Appellant.

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

SHEPHERD, Circuit Judge.

After Donald Morgan ran against his boss Michael Robinson, the incumbent sheriff, in a primary election, Robinson terminated Morgan’s employment as a deputy with the Washington County, Nebraska Sheriff’s Office for statements Morgan made during the campaign. Morgan then brought this First Amendment retaliation action under 42 U.S.C. § 1983, and Robinson moved for summary judgment on the basis of qualified immunity. The district court¹ denied Robinson’s motion, and he appealed. We affirm.

I. Background

Morgan is a deputy in the Washington County, Nebraska Sheriff’s Department. Robinson is the elected sheriff for that county. In July of 2013, Morgan notified Robinson of his intentions to run against Robinson in the 2014 primary election. Throughout his campaign, Morgan made public statements concerning the operations of the sheriff’s department and his plans to improve them. Robinson won the election, and he terminated Morgan’s employment six days later, claiming that these statements violated the department’s rules of conduct. In Morgan’s termination letter, Robinson cited the following statements as the reasons for the disciplinary action:

1. You continued to state that the communications system was not completed after 10 years of construction although the record reflects it was completed on time and under budget in 2006[.]

2. You stated the Fire and Rescue agencies could not communicate and stated someone would be hurt or killed if it was not fixed although the Fire Chiefs submitted a letter to the local paper saying your comments were false.

3. You continued to tell the public that morale at the Sheriff’s Office was bad and that "all the employees were waiting for the day after I lost to see me walk out of the office". [sic] You also stated several deputies were actively looking for employment. This was proven false when several of the Deputies were consulted and none were looking and did not know of any deputy looking for employment and I was overwhelmingly supported by the employees of the Sheriff’s Office.

4. You stated the K-9 had been taken from you for retribution when in fact you demanded the K-9 be taken because it "hindered your ability to do your job". [sic]

5. You stated portable radio coverage was poor and continued to state the coverage was poor even after being shown the system coverage for portable radios was 99.2% county wide.

R. at 261.

Morgan initially filed a grievance under a labor contract that applied to his position, which he lost. He then filed this suit in district court alleging claims of retaliation, deprivation of due process, and breach of the labor contract. Applying the terms of the contract, the district court compelled arbitration of the breach of contract claim. The arbitrator ruled in Morgan’s favor and reinstated his employment with the sheriff’s department.

After returning to district court, Robinson filed the current motion for summary judgment, claiming that he was entitled to qualified immunity on Morgan’s retaliation claim. The court denied the motion, ruling that Robinson was not entitled to qualified immunity because there were genuine disputes of material fact concerning the public value of Morgan’s statements and whether the statements caused disruption in the operation of the sheriff’s department. Because of these factual disputes, the court denied qualified immunity, concluding a jury could find that Morgan established a violation of his constitutional rights that was clearly established at the time of the incidents in question. Robinson appeals this decision.

II. Discussion

On appeal, Robinson focuses the vast majority of his briefing on arguments related to the proper form of the qualified immunity analysis. In so doing, however, he neglects to realize that the Supreme Court has ascribed a unique test applicable to cases where a government employee alleges that his employer retaliated against the employee for exercising his First Amendment rights. In the first part of this test, we must discern whether the employee’s speech is protected by the First Amendment: an inquiry that entails balancing the respective interests of the employee and the employer. See Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2380-81, 189 L.Ed.2d 312 (2014). Next, because Robinson claims he is protected by qualified immunity, we apply the standard inquiry asking whether "the official violated a statutory or constitutional right, and [whether] the right was clearly established at the time of the challenged conduct." Id. at 2381 (internal quotation marks omitted); see also id. at 2383 (concluding that although the speech was protected, the employee’s First Amendment rights were not violated "because the question was not ‘beyond debate’ at the time" the official took action (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ) ).

A. Standard of Review

"A party is entitled to summary judgment only when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Div. of Emp't Sec. v. Bd. of Police Comm'rs, 864 F.3d 974, 977-78 (8th Cir. 2017) (quoting Fed. R. Civ. P. 56(a) ). "[I]n ruling on a motion for summary judgment, ‘[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’ " Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) (second alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "Ordinarily, we lack jurisdiction to hear an immediate appeal from a district court’s order denying summary judgment, because such an order is not a final decision." Div. of Emp't Sec., 864 F.3d at 978 (internal quotation marks omitted). Where the moving party claims entitlement to qualified immunity, however, an appeal may be taken "because immunity is effectively lost if a case is erroneously permitted to go to trial." Id. (internal quotation marks omitted). "The scope of our review is limited to issues of law, so we apply a de novo standard." Id.

B. Whether Morgan’s Speech is Protected

"The Supreme Court has developed two lines of cases that assess how to balance the First Amendment rights of government employees with the need of government employers to operate efficiently." Thompson v. Shock, 852 F.3d 786, 791 (8th Cir. 2017). Where, as here, a case involves "overt expressive conduct," our court applies "the balancing test as found in the line of cases following Pickering and Connick . The typical Pickering - Connick case involves a government employee causing workplace disruption by speaking as a citizen on a matter of public concern, followed by government action adversely affecting the employee’s job." Id. (internal citation omitted).

The first question in this analysis asks whether the employee’s speech was made as a citizen on a matter of public concern. Lane, 134 S.Ct. at 2378 ; accord Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 833 (8th Cir. 2015). Where this question is answered in the affirmative, the court next asks whether the employer "had an adequate justification for treating the employee differently from any other member of the general public." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ; accord Anzaldua, 793 F.3d at 833 ("[I]f the possibility of a First Amendment claim has arisen, then our second inquiry is to ask whether [the employer] has produced evidence to indicate the speech had an adverse impact on the efficiency of the [employer’s] operations." (alterations in original) (internal quotation marks omitted) ). Finally, if each party has met their burden, the court applies the Pickering - Connick test² to balance the competing interests. Anzaldua, 793 F.3d at 835.

1. Whether the speech was made as a citizen on a matter of public concern.

"Speech by citizens on matters of public concern lies at the heart of the First Amendment, ... [and] [t]his remains true when speech concerns information related to or learned through public employment." Lane, 134 S.Ct. at 2377. Indeed, "[t]here is considerable value ... in encouraging, rather than inhibiting, speech by public employees [because] ‘[g]overnment employees are often in the best position to know what ails the agencies for which they work.’ " Id. (third alteration in original) (quoting Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) ). If the employee was not speaking as a citizen on a matter of public concern, he or she "has no First Amendment cause of action based on his or her employer’s reaction to the speech." Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. On the other hand, if this preliminary question is answered in the affirmative, "then the possibility of a First Amendment claim arises." Id.

"Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Snyder...