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9th Circuit Finds that Public Employee Not Speaking As Part of His Official Duties Can Sue For First Amendment Retaliation

The Ninth Circuit Court of Appeals recently held that a “low-level” public employee’s First Amendment retaliation claim could proceed to trial because the employee’s duties did not include reporting misconduct and false statements made to the public agency’s governing board.In Anthoine v. North Central Counties Consortium (9th Cir. May 24, 2010), Case No. 08-16803, the court held that the employee’s speech was protected and could form the basis for a retaliation claim, because the employee was not speaking pursuant to his official duties when he reported to the agency’s board that that his immediate supervisor had misrepresented the status of the agency’s compliance with its legal obligations.

Nelson Anthoine (“Anthoine”) was a program analyst for the North Central Counties Consortium (“NCCC”), which receives money from the state and federal governments to fund programs that provide workforce development activities. During his employment with NCCC from 1988 to 2005, Anthoine received several written performance reviews ranging from “improvement needed” to “above standard.” He also received several counseling memoranda regarding his unacceptable work performance. He had been warned that further misbehavior could result in disciplinary action. In January 2005, Anthoine met with the chairman of NCCC’s governing board and reported that the Director had falsely reported that NCCC was current in reporting to the state certain data from its case management system and that the system itself was flawed. Anthoine’s reporting turned out to be true.

Anthoine’s report to the governing board was then made known to the Director, who within a very short time, gave Anthoine a verbal warning for a pattern of incidents of insubordination. Anthoine disputed the verbal warning and filed a formal grievance. The grievance was denied. During the pendency of Anthoine’s grievance, he received an “unsatisfactory” performance evaluation based on explicit instructions from the Director, although an earlier draft of the evaluation only indicated a “needs improvement” rating.

On May 16, 2005, the Director informed the NCCC governing board that a decision had been made to discharge Anthoine. The board ratified the Director’s decision and Anthoine was subsequently terminated.

In analyzing this case, the court first applied the “sequential five-step series of questions” outlined in Eng v. Cooley, 552 F.3d 1062,1070 (9th Cir. 2009) to determine whether an employer impermissibly retaliated against an employee for protected speech. This five-step inquiry asks: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.

The court quickly found that Anthoine’s speech (reporting NCCC’s failure to comply with its legal obligations and misrepresentations to the governing board of a public agency) qualified as a matter of public concern. The court did not find it determinative that Anthoine did not air his concerns publicly because he had expressed his concerns directly to NCCC’s chairman of the board. Next, the court tackled the issue of whether Anthoine’s spoke as a private citizen or a public employee. In finding that Anthoine’s statements did not lose their First Amendment protection, the court determined that Anthoine did not have a duty to report misconduct within the proper channels, and even if such a duty did exist, there was no evidence that Anthoine’s speech directly to NCCC’s chairman was within the scope of his duties.

The court then focused on whether retaliation for his reports was a substantial or motivating factor for the adverse employment action taken against Anthoine. Here, the court looked to the proximity in time and found a very close temporal link between Anthoine’s speech and the adverse employment actions. This temporal proximity provided an inference of retaliation sufficient to survive NCCC’s summary judgment motion. Additionally, the court found that Anthoine had provided evidence showing that NCCC’s explanations for the adverse employment actions were false and pretextual. The court looked to Anthoine’s employment history, concluding that even though he was not a model employee, it was only after his speech that he received discipline for insubordination and a downwardly revised performance evaluation.

Finally, the court found that NCCC did not sustain its burden in showing (1) whether there was adequate justification for treating him differently than the general public, or (2) that NCCC would have taken the same action against Anthoine even absent his speech. NCCC failed to present evidence that Anthoine’s protected speech caused NCCC to suffer an actual, material and substantial disruption, or reasonable predictions of disruption, in the workplace. NCCC also failed to address the but-for causation inquiry. Based on NCCC’s failure to present such evidence, the court found that Anthoine had presented sufficient evidence to survive summary judgment.

This decision shows that courts will continue to review and analyze First Amendment retaliation claims on a case-by-case basis and that public agency employees may be able to maintain retaliation claims even when complaining about agency issues, internally and outside preferred channels. In evaluating potential disciplinary actions concerning employee complaints, public agencies need to consider the nature of the speech, the duties of the complaining employee and, of course, whether or not any adverse employment action was in fact taken against the employee due to the employee’s speech. Agencies also should continue to balance the necessity and importance of any discipline action against the competing risks and costs of potential litigation should the legality of the discipline be challenged.

Meyers Nave routinely advises and represents public agencies on retaliation claims, employee discipline issues and grievances. For more information about Anthoine v. North Central Counties Consortium or other public employment issues, contact Eddie Kreisberg at 800.464.3559.