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Mayor who fired long-term employee for ‘unacceptable’ email should have been granted qualified immunity

By Kathleen Kapusta, J.D.

A city planner—allegedly fired by the mayor after 30 years of employment based on an email he sent to the city attorney raising concerns about impropriety relating to a long-term development project—failed to show a violation of clearly established law on an essential element of his First Amendment retaliation claim, a divided Tenth Circuit on interlocutory appeal found, reversing the district court’s denial of qualified immunity to the mayor. In a concurring opinion, Judge Briscoe agreed that the employee failed to show any violation of the First Amendment he may have suffered was based on clearly established law. Dissenting, Judge Ebel would have affirmed the lower court’s decision to deny the mayor qualified immunity from the employee’s damages claim at the summary stage (Knopf v. Williams, March 5, 2018, Matheson, S., Jr.).

Appointed as city planner in 1987, the employee began working on a master plan for a project to develop a public greenway along a river. The project involved multiple phases of development, including the Meadow Project, the phase at issue here. The employee’s role in this project differed from the other phases. Although he acted as the point person between the city and private groups involved in the project in the other phases, for the Meadows Project, the city engineer was the point person.

Disagreement. In October 2015, disagreement over the Meadows Project arose when a subcontractor requested $22,300 more than the originally budgeted amount for topsoil. Although a private engineering firm involved in the project recommended denying the subcontractor’s request because he believed it performed substandard work and had improperly calculated its costs, the city engineer recommended fulfilling the request.

Email. When the employee learned of the dispute, he emailed the city attorney about his concern that the city engineer’s friendship with the subcontractor’s owner was clouding the engineer’s better judgment. He also stated that the city engineer was impeding the project engineer’s ability to perform his duties. About two months later, the employee expressed these concerns to the mayor; less than a month later, the mayor informed the employee that he would not be reappointing him as city planner. According to the mayor, the employee’s email was unacceptable and he lost confidence and trust in him.

Lower court proceedings. The employee subsequently sued the mayor in his individual and official capacities, asserting a First Amendment retaliation claim, and the mayor moved for summary judgment on qualified immunity. Denying the mayor’s motion, the district court found the employee had sufficiently alleged facts that if proven would constitute a First Amendment violation and the mayor’s conduct violated clearly established law as “since at least 1998, it is clearly established that a public employer cannot retaliate against an employee for exercising their First Amendment right to free speech.”

Clearly established? On interlocutory appeal, the Tenth Circuit found the employee did not meet his burden of showing that any violation of the First Amendment he may have suffered was based on clearly established law. It noted that the district court’s discussion of the second qualified immunity prong consisted only of the general statement that “it is clearly established that a public employer cannot retaliate against an employee for exercising their First Amendment right to free speech.” Relying on this statement, the employee argued that at the time of his dismissal, it was clearly established that a public employer cannot retaliate against an employee for speaking on matters of public concern. These statements, however, were general statements of law, said the appeals court, noting that “clearly established law must be particularized to the facts of the case.”

Further, the court found that the employee’s reliance on the four cases for clearly established law was misplaced. Two of the cases were decided before the Supreme Court’s 2006 Garcetti decision, which added the scope-of-official-duties element to the Garcetti/Pickering test and thus provided little guidance on the official duties issue, much less clearly established law. A third case was unpublished and could provide little support for the notion that the law was clearly established. As for the fourth case, it was decided more than a year after the events occurred here and thus was also of no help to the employee. As for Dill v. City of Edmond, the only case cited by the district court to support its clearly established ruling, among other things, it also preceded the Garcetti decision and varied factually.

And while the employee did not cite a case directly on point, he had to show the law would have been clear to a reasonable person in the mayor’s position that his conduct was unlawful in the situation. The key question, said the court, was whether the mayor “reasonably [could] have believed, at the time he fired [the employee], that a government employer could fire an employee on account of” speech stemming from almost 30 years of high level involvement with an ongoing project.” Finding that the employee failed to show such a belief was unreasonable based on then-existing law, the court explained that it would not have been “beyond debate” to a reasonable official that the employee’s email exceeded the scope of his official duties, and thus the mayor was entitled to qualified immunity on the particular facts of this case.

Concurrence. In a concurring opinion, Judge Briscoe agreed that the employee did not meet his burden of showing that any violation of the First Amendment he may have suffered was based on clearly established law. The judge also concluded as a preliminary matter that the employee failed to establish that the mayor violated his First Amendment rights by declining to reappoint him. After analyzing these two intertwined questions, the judge concluded that the employee failed to identify clearly established law that was “particularized” to the facts of his case. “That is because, as of late 2015 and early 2016, the outcome of the Pickering balancing test, as applied to the facts presented in this case, did not place ‘beyond debate’ the questions of whether [the employee] spoke as a private citizen when he sent his email and, in turn, whether it was proper for [the mayor] to discipline [the employee] for sending the email.” Consequently, Judge Briscoe found that the major was entitled to qualified immunity from the employee’s First Amendment retaliation claim.

Dissent. In a lengthy dissent, Judge Ebel asserted that he would not require for purposes of the qualified-immunity analysis that the employee identify factually on-point precedent that clearly established that the speech in which he engaged—sending an email to the city attorney expressing concern about the possible misuse of city money in a greenway development project—fell outside the scope of his job duties as city planner, which is the first prong of the Garcetti/Pickering test. This “initial predicate inquiry in the five-part Garcetti/Pickering analysis that applies to [the employee’s] First Amendment claim turns, not on the defendant’s alleged misconduct, but instead on the legal question of the precise and nuanced job duties required of Evanston’s planner.” There was only one Evanston planner with the employee’s job duties and responsibilities, so to require him to come up with preexisting precedent clearly establishing his job duties was not only impractical—it was in fact not possible, the dissent argued.

Instead, Judge Ebel would apply clearly established general principles derived from Supreme Court precedent—from Lane v. Franks, and Garcetti—to determine whether the employee’s speech fell outside the scope of his job duties. On the other four Garcetti/Pickering inquiries, the judge agreed that there has to be prior factually relevant precedent to defeat qualified immunity. “But I believe that requirement is satisfied here,” the judge asserted.