Whitney v. City of Milan

• Decision Date: 24 April 2012
• Docket Number: No. 11–5261.,11–5261.
• Parties: Lindsey WHITNEY, Plaintiff–Appellee, v. CITY OF MILAN, a Municipal Corporation, Defendant,Chris Crider, Mayor, in his Individual and Official Capacities, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

114 Fair Empl.Prac.Cas. (BNA) 1345

33 IER Cases 1291

677 F.3d 292

Lindsey WHITNEY, Plaintiff–Appellee,

v.CITY OF MILAN, a Municipal Corporation, Defendant,Chris Crider, Mayor, in his Individual and Official Capacities, Defendant–Appellant.

No. 11–5261.

United States Court of Appeals, Sixth Circuit.

Argued: March 1, 2012.Decided and Filed: April 24, 2012.

ARGUED: Geoffrey Andrew Lindley, Rainey, Kizer, Reviere & Bell, PLC, Jackson, Tennessee, for Appellant. Charles H. Barnett, III, Spragins, Barnett & Cobb, PLC, Jackson, Tennessee, for Appellee. ON BRIEF: Dale Conder, Jr., Rainey, Kizer, Reviere & Bell, PLC, Jackson, Tennessee, for Appellant. Charles H. Barnett, III, Teresa A. Luna, Spragins, Barnett & Cobb, PLC, Jackson, Tennessee, for Appellee.Before: COLE and STRANCH, Circuit Judges; CARR, District Judge. ^*

OPINION

COLE, Circuit Judge.

Defendant–Appellant Chris Crider, the mayor of the City of Milan, appeals the district court's denial of qualified immunity. Because Crider prohibited one of his employees from speaking about matters of public concern, in violation of the employee's clearly established First Amendment rights, we AFFIRM the denial of qualified immunity.

I.

Plaintiff–Appellee Lindsey Whitney has been an employee of the City of Milan, Tennessee (“the City”) since 2006, when she was first hired to work in the City's street department. The following year, in addition to this job, Whitney began training for a position at City Hall under the supervision of the then-City Recorder, Keri Williams. Whitney and Williams have a strong personal relationship; their families socialize together, their children are close friends and attend day care together, and Williams was Whitney's landlord. In July 2008, based on a recommendation from Williams, Crider assigned Whitney to a deputy clerk position in the city court clerk's office.

A few months later, on September 12, 2008, the City fired Williams. Later that day, Crider, aware of the close relationship between Williams and Whitney, summoned Whitney to his office. Crider ordered Whitney to end all contact with Williams. Crider told Whitney not to call or text Williams, forbade her from “promoting” any allegations Williams may raise against the City, and specifically ordered her not to participate in or assist with any lawsuit Williams might bring against the City. Crider later followed up with Whitney three or four times, asking her whether she had been in communication with Williams. Following Williams's termination, Whitney was concerned about her own job security and believed that if she violated Crider's orders and communicated with Williams, she would lose her job. The following month, Williams, in fact, did file suit against the City, alleging gender discrimination and retaliation for speaking out against alleged acts of public corruption.

In May 2009, Whitney filed suit against Crider and the City under 42 U.S.C. § 1983, alleging, inter alia, violations of her rights under the First and Fourteenth Amendments. Although Whitney claimed constitutional violations including interference with freedom of association, assembly, and the right to intimate association as well as retaliation for protected speech, the sole remaining allegation is her First Amendment prior-restraint claim against Crider. Crider moved for summary judgment on this prior-restraint claim on the basis of qualified immunity. The district court denied Crider's motion and Crider timely filed an interlocutory appeal.

II.

A. Jurisdiction and Standard of Review

As a threshold matter, this Court has jurisdiction to consider Crider's interlocutory appeal because “a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291....” Sample v. Bailey, 409 F.3d 689, 694 (6th Cir.2005) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Crider appeals the district court's order which denied his motion for summary judgment on the basis that he violated a clearly established constitutional right, and as such, is not entitled to qualified immunity. Whether Crider's order violated clearly established law is purely a legal question over which we have jurisdiction. See Turner v. Scott, 119 F.3d 425, 427 (6th Cir.1997) (“A denial of qualified immunity on purely legal grounds is immediately appealable.”) Furthermore, we review de novo the district court's summary judgment determination on the grounds of qualified immunity, Sample, 409 F.3d at 695, and “construe the evidence and draw all reasonable inferences in favor of” Whitney, the nonmoving party, Hawkins v. Anheuser–Busch, Inc., 517 F.3d 321, 332 (6th Cir.2008) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

B. Qualified Immunity on a Prior–Restraint Claim

Government officials are immune from civil liability under 42 U.S.C. § 1983 when performing discretionary duties, provided “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). We apply a two-pronged test to determine whether qualified immunity shields a government official from a § 1983 claim: (1) we inquire whether the facts, viewed in the light most favorable to the nonmoving party, “show[ ] the officer's conduct violated a constitutional right;” and (2) if so, then we determine whether the constitutional right was clearly established by asking whether “a reasonable official would understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 201–02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated in part by Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

In applying the first prong of the Saucier test, we first must identify “the specific constitutional right allegedly infringed” and determine whether a violation occurred. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). As Whitney raised a First Amendment prior-restraint claim, we apply the two-part Pickering analysis to determine whether Crider's order was an unconstitutional prior restraint of a public employee's speech. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Farhat v. Jopke, 370 F.3d 580, 598 (6th Cir.2004). First, we determine whether the affected speech involved a public employee's comments as a private citizen on a matter of public concern. See Farhat, 370 F.3d at 588, 598. Second, if the speech involves a matter of public concern, then we must balance the interests of the public employee, “as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731).

The district court, to simplify its Pickering and Saucier analysis, divided the prior restraint into three categories of speech and separately analyzed each category. The court considered Crider's order to consist of three restraints: (1) barring Whitney's personal communication with Williams, (2) proscribing Whitney from promoting any allegations Williams may raise against the City, and (3) prohibiting Whitney's participation in Williams's lawsuit against the City. We find no meaningful difference between the second and third categories. Crider's order prohibiting Whitney from promoting allegations of gender discrimination and public corruption and his order prohibiting participation in a lawsuit raising these claims are one and the same. To participate in a lawsuit exposing workplace discrimination and local government corruption is one of the many means by which Whitney could promote Williams's allegations against the City. Accordingly, Crider's orders against promoting Williams's allegations and participating in Williams's lawsuit are part and parcel of the same restriction.

The first Pickering prong requires us to determine whether Crider's order prevented Whitney from speaking as a private citizen on a matter of public concern. To be deemed a matter of public concern, the speech must “relat[e] to any matter of political, social, or other concern to the community....” Id. at 146, 103 S.Ct. 1684. As the district court correctly noted, to the extent Crider's order interfered with Whitney's personal communications with Williams, that speech is not a matter of public concern. Thus, Crider's order restricting such speech does not amount to a First Amendment violation under Pickering. Therefore, with respect to restricting personal communications, the district court was correct to grant qualified immunity because Whitney was unable to establish a violation of her constitutional rights and, therefore, unable to carry her burden “to demonstrate that [Crider was] not entitled to qualified immunity.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006).

Crider's order did, however, 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. Speech touches upon a matter of public concern “when it involves issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir.2001) (internal quotation marks and citations omitted). “[S]peech falling into this category includes informing the public that a governmental entity failed to ‘discharg[e] its governmental responsibilities' or ‘bring[ing] to light actual...