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Morgan v. Robinson

United States Court of Appeals, Eighth Circuit

February 2, 2018

Donald Morgan Plaintiff- Appellee
v.
Michael Robinson, Washington County Sheriff, an individual Defendant-Appellant Washington County, Nebraska Defendant

          Submitted: November 15, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         After Donald Morgan ran against his boss Michael Robinson, the incumbent sheriff, in a primary election, Robinson terminated Morgan's employment as a deputy with the Washington County, Nebraska Sheriff's Office for statements Morgan made during the campaign. Morgan then brought this First Amendment retaliation action under 42 U.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 Sheriff's 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 operations of the sheriff's 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[.]
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 Sheriff's 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 supported by the employees of the Sheriff's 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 sheriff's 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 sheriff's 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, 134 S.Ct. 2369, 2380-81 (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 ...


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