Gable v. Lewis

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 13, 2000
• Docket: 98-3819
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0019P (6th Cir.) File Name: 00a0019p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  SARAH GABLE,  Plaintiff-Appellee,   No. 98-3819 v.  > RONALD G. LEWIS; KENNETH   Defendants-Appellants,  T. WOEHRMYER,

   ROGER HANNAY, et al., Defendants.  1 Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 96-00973—Susan J. Dlott, District Judge. Argued: November 3, 1999 Decided and Filed: January 13, 2000 Before: MERRITT and NELSON, Circuit Judges; COHN,* District Judge.

* The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.

1 2 Gable v. Lewis, et al. No. 98-3819

_________________ COUNSEL ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellants. Alphonse A. Gerhardstein, LAUFMAN, RAUH & GERHARDSTEIN, Cincinnati, Ohio, for Appellee. ON BRIEF: Jeffery W. Clark, Allen P. Adler, O F FICE OF THE ATTORNEY G E N E R A L, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellants. Alphonse A. Gerhardstein, LAUFMAN, RAUH & GERHARDSTEIN, Cincinnati, Ohio, for Appellee. MERRITT, J., delivered the opinion of the court, in which COHN, D. J., joined. NELSON, J. (pp. 7-9), delivered a separate dissenting opinion. _________________ OPINION _________________ MERRITT, Circuit Judge. In this § 1983 case, plaintiff Sara Gable, who operates an automobile towing company in Lebanon, Ohio, claimed that the defendant, Ronald Lewis, an official of the Ohio Highway Patrol, retaliated against her by removing her from the patrol’s towing referral list because she had filed with the state agency an official written complaint of sex discrimination in the allocation of the patrol’s automobile towing business. Her retaliation claim was brought as a violation of the petition clause of the First Amendment which bars government from “abridging . . . the right of the people . . . to petition the government for a redress of grievances.” After a three-day trial, the jury found that the defendant was guilty of violating the petition clause when he removed her from the towing list in retaliation for filing her discrimination complaint. The jury awarded damages of $55,000. On appeal, we take as true these facts as found by the jury. No. 98-3819 Gable v. Lewis, et al. 3

The defendant presents two issues of law on appeal: First, he argues that the petition clause is inapplicable to her grievance filed with the patrol because “only speech concerning matters of ‘public concern’ is protected from retaliatory conduct” by the petition clause and that plaintiff’s discrimination complaint is personal to her and is not such a matter of “public concern,” as required by Connick v. Myers, 461 U.S. 138, 145-48 (1983). Second, he argues that the defendant is entitled to qualified immunity because the “constitutional right [asserted] must be clearly established in a particularized sense” under Anderson v. Creighton, 483 U.S. 635, 640 (1987), in order for a state official to be held personally liable in damages for a constitutional tort and that the constitutional right claimed in this case under the petition clause was not “clearly established” at the time of the retaliatory conduct. Although historically the right of “petition” was confined to seeking legislative or judicial relief, see Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L. J. 142 (1986), and although some scholars insist that the scope of the petition clause should remain so limited through judicial interpretation, Strauss, Public Employees’ Freedom of Association, 61 FORDHAM L. REV.473, 486 (1992), the Supreme Court has held to the contrary. In California Transport v. Trucking Unlimited, 404 U.S. 508, 510 (1972), the Court, after explaining the philosophy underlying the petition clause, said that the “same philosophy governs the approach of citizens or groups of them to administrative agencies,” and concluded that “the right to petition extends to all departments of the Government.” In extending the right of petition to administrative agencies, the Court stated “that it would be destructive of rights of association and of petition to hold that groups with common interests may not . . . use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests viz-a-viz their competitors.” Id. at 510-11. The petition clause is analytically distinct from, although related to, the free speech 4 Gable v. Lewis, et al. No. 98-3819 No. 98-3819 Gable v. Lewis, et al. 9

clause; and the California Transport case clearly establishes One relationship “analogous to an employment that the submission of complaints and criticisms to relationship,” as it happens, is the relationship between a nonlegislative and nonjudicial public agencies like a police police force and a towing company to which the police force department constitutes petitioning activity protected by the has historically referred business. See White Plains Towing petition clause. Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993), where the Second Circuit assumed for First Amendment analysis The question before us is whether we should read into the purposes that the assignment of work to a towing company by petition clause the “public concern” test established in the New York State Police “was tantamount to employment.” Connick v. Myers, 461 U.S. 138, 145-48 (1983), a case Id. at 1059. brought by a public employee under the speech clause of the First Amendment. In Connick the Court said that a The towing company that brought the White Plains suit governmental agency may discipline or impose punishment could not recover damages for an allegedly retaliatory against a public employee for speech if the sanctioned speech termination of its referral arrangement, the Second Circuit is a matter of “private” concern rather than “public concern.” held, absent a showing that the “speech” for which the The Court made it clear that the reason for this distinction company claimed it had been delisted – primarily demands for between “private” and “public” matters is to enable an increase in towing referrals – rose to the dignity of governmental agencies, like private employers, to maintain “comments upon a matter of public concern.” Id. It was order, discipline and civility in the workplace and to allow partly because the communications at issue flunked the supervisory officials to discipline employees for offensive, public-concern test that a judgment entered in favor of the insulting, or disruptive speech unrelated to expressions of plaintiff towing company was reversed by the Second Circuit. opinion about policy matters. On the other hand, the Court sought to retain the right of all citizens, including public We must, of course, give defendants the benefit of the employees, to comment and express their views on matters of qualified immunity doctrine in any case where the doctrine is governmental policy. In Connick, the Court did not apply the properly raised and to which it properly applies. The doctrine “public concern” test to the petition clause, nor has it decided applies, as I understand it, with respect to any legal issue on since Connick a case raising that point. Nor has the Court which there is no controlling Supreme Court or circuit applied the test to citizens who are not governmental precedent and on which “officers of reasonable competence employees. could disagree. . . .” See Malley v. Briggs, 475 U.S. 335, 341 (1986). The underlying issue in the case at bar – whether the We believe that the law is clearly established that the First Amendment prohibits termination of a business “public concern test” does not apply to the petitioning activity relationship in retaliation for the assertion of a private in the instant case. First, in the California Transport case the grievance – is one on which there has heretofore been no Supreme Court included within the scope of the petition controlling Supreme Court or Sixth Circuit authority and as clause complaints “respecting resolution of their [petitioners’] to which federal judges of reasonable competence could business and economic interests . . . .” 404 U.S. at 511. disagree and in fact have disagreed. Because I do not think Thus, the petition clause itself is not generally limited to we ought to require Highway Patrol officers to be more matters of “public concern” as described in the Connick case prescient than Article III judges when it comes to divining but includes the petitioner’s private business interests. future developments in the law, I would recognize the Second, the reason for the “public concern” test in Connick — defendants’ right to qualified immunity here. to maintain order and avoid disruption in the governmental 8 Gable v. Lewis, et al. No. 98-3819 No. 98-3819 Gable v. Lewis, et al. 5

late as March of 1997 – some seven months after Ms. Gable’s workplace — does not apply in this case because the plaintiff name was removed from the towing referral list – a judge of was not a governmental employee subject to the discipline of this court was able to maintain without qualification that “the a governmental employer. She was simply a citizen offering right to petition is limited to matters of public concern.” See services to a state agency. Since the reason for the test is Valot v. Southeast Local School District Board of Education, missing in the present case — maintaining order in the 107 F.3d 1220, 1226 (6th Cir. 1997) (lead opinion by Engel, governmental workplace — the test should not be applied J.). Judge Engel marshalled a number of cases in support of here, and the district court was correct in not including in its this point of view, and noted only one case – San Filippo v. instructions to the jury a limitation on liability based on the Bongiovanni, 30 F.3d 424, 440-43 (3d Cir. 1995) – to the Connick public concern test. Third, we find no authority in contrary. Id. the Sixth Circuit limiting petitioning activity by public employees to matters of “public concern” either generally or It is true that the other members of the Valot panel (Merritt in the governmental employment context. In Valot v. and Ryan, JJ.) disagreed with Judge Engel. Judge Ryan Southeast Local School District Board of Education, 107 F.3d reached the same result by a different analytical route, see 1220 (1997), one judge believed that the petition clause Valot, 107 F.3d at 1230-31 (Ryan, J., concurring), and Judge should be so limited in actions by public employees against Merritt, in dissent, said that he would follow San Filippo. their employers, but two other judges of the court did not Valot, 107 F.3d at 1234 (Merritt, J., dissenting). But if agree. See also San Filippo v. Bongiovanni, 30 F.3d 424 (3rd reasonable members of this court could disagree in March of Cir. 1995)(holding that the “public concern” test does not 1997 over the applicability of the public-concern test in the apply to petitioning public employees), discussed and Petition Clause context, how can we say that the law was so analyzed extensively in Shea, San Filippo v. Bongiovanni: clearly established seven months earlier that there was no The Public Concern Criteria and the Scope of the Modern room at that time for disagreement among reasonable Petition Right, 48 VAND. L. REV.1697 (1995), and Thaddeus- Highway Patrol officials? X v. Blatter, 175 F.3d 378, 392 (6th Cir. 1997, en banc)(holding that a prisoner’s right to petition the I must acknowledge, to be sure, that the Valot plaintiffs – government for redress of grievances is not subject to the untenured substitute bus drivers – were sometime employees public concern limitation imposed in free speech actions of the public body that stood accused of having retaliated involving public employees). Thus there is no basis in our against them, while Ms. Gable was not an employee of the First Amendment jurisprudence for applying Connick’s public Ohio State Highway Patrol. But as the Court of Appeals for concern test to petitioning activity by a private business the Fifth Circuit observed in Blackburn v. City of Marshall, woman who is simply supplying services to a governmental 42 F.3d 925, 932 (5th Cir. 1995), “[a]lthough the agency as an independent contractor. Pickering/Connick [public-concern] test arose in the context of public employment, courts have not strictly cabined its The fact that there is a judge somewhere, as imagined by application. . . . Courts have extended [its] analysis to cases our dissenting colleague, who in this case might conclude involving relationships analogous to an employment erroneously that a private citizen like plaintiff, who tows cars relationship.” See, in this connection, Copsey v. Swearingen, for a living and receives no compensation from the state, is 36 F.3d 1336, 1344 (5th Cir. 1994) (a blind operator of a “tantamount” or “analogous” to a government employee, does concession stand in a public building “was more like a public not persuade us. After many years watching judges, we agree employee than an ordinary citizen,” so the public-concern test that a judge or judges somewhere might so conclude. But had relevance to his situation). when such a ruling would be clearly contrary to a Supreme 6 Gable v. Lewis, et al. No. 98-3819 No. 98-3819 Gable v. Lewis, et al. 7

Court case like California Transport, supra, and entirely _________________ inconsistent with the Supreme Court’s orderly-public- workplace reasoning in the Connick case, we should not be DISSENT dissuaded by the error of such a hypothetical judge. This is _________________ especially true when we recognize that government retaliation for filing a petition violates the literal language of the Petition DAVID A. NELSON, Circuit Judge, dissenting. With the Clause which forbids “abridging . . . the right of the people publication of the court’s opinion in this case, it becomes a . . . to petition the government for a redress of grievances.” settled rule of law in the Sixth Circuit that even where a Most cases can be imagined to be “tantamount” or plaintiff cannot meet the “public concern” test of Connick v. “analogous” to some other case. We should not split hairs Myers, 461 U.S. 138 (1983), government officials may not when the conduct literally violates the language of the withdraw a business advantage in retaliation for the plaintiff’s Petition Clause and when the Supreme Court seems to be exercise of the First Amendment right to petition for a redress clear on the subject. of grievances. It is unlikely, in my opinion, that the Supreme Court would disagree with our holding on this point. For these reasons, we conclude that the law interpreting the petition clause protects the plaintiff in filing a complaint with I part company with my colleagues on the panel, however, the Ohio Highway Patrol claiming sex discrimination, and when it comes to the proposition that the non-applicability of this law was clearly established prior to the retaliatory Connick’s public-concern test in Petition Clause cases had conduct found by the jury in the present case. We also been clearly established by July of 1996, the point at which conclude that the law was clearly established that the “public the name of towing company operator Sara Gable was concern” test does not apply to plaintiff’s petitioning activity. removed from the Ohio State Highway Patrol’s referral list.1 Hence the doctrine of official immunity is inapplicable, and And if the rule announced today was not clearly established the jury verdict should not be set aside for either of the two in July of 1996 – in other words, if the state of the law was reasons advanced by the defendant. such that officials of reasonable competence could disagree as to the applicability of the public-concern test in a Petition Accordingly, the judgment of the district court is Clause situation – the defendants are entitled to qualified AFFIRMED. immunity. I am not prepared to say that the non-applicability of the public-concern test in Petition Clause cases was clearly established in mid-1996. To begin with, neither the Supreme Court nor the Sixth Circuit had ever decided the question. The answer given by this court today was not clearly foreshadowed by the Supreme Court’s opinion in California Transport v. Trucking Unlimited, 404 U.S. 508 (1972), so as

1 Ms. Gable failed to prove that her sex was a motivating factor in her removal from the list, but we must take it as given, the jury having so found, that the filing of her complaint of sex discrimination was a motivating factor insofar as defendant Lewis was concerned.