Donald Morgan v. Michael Robinson

881 F.3d 646
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 2, 2018
Docket17-1002
StatusPublished
Cited by1 cases

This text of 881 F.3d 646 (Donald Morgan v. Michael Robinson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Donald Morgan v. Michael Robinson, 881 F.3d 646 (8th Cir. 2018).

Opinion

SHEPHERD, Circuit Judge.

After Donald Morgan ran against his' boss Michael Robinson, the incumbent sheriff, in a primaiy election, Robinson terminated Morgan’s employment as a deputy with the Washington County, Nebraska Sheriffs Office for statements Morgan made during the campaign. Morgan' then brought this First Amendment retaliation action under 42 TJ.S.C. § 1983, and Robinson moved for summary judgment on the basis of qualified immunity. The district court 1 denied Robinson’s motion, and he appealed, We affirm.

I. Background

Morgan is a deputy in the Washington County, Nebraska Sheriffs 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 opera-, tions of the sheriffs 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[J
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 Sheriffs 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 supportéd by the eni-' ployees of the Sheriffs 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 sheriffs 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 sheriffs 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

“Á 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 Con-nick. 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.” Jd. (internal citation omitted).

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Donald Morgan v. Michael Robinson
920 F.3d 521 (Eighth Circuit, 2019)

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881 F.3d 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donald-morgan-v-michael-robinson-ca8-2018.