Submitted: November 15, 2017
from United States District Court for the District of
Nebraska - Omaha
BENTON, SHEPHERD, and KELLY, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
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 denied Robinson's motion, and
he appealed. We affirm.
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
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
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
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.
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.
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.
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 ...