The Lawletter Vol 36 No 2, September 30, 2011
A county corrections employee was ultimately terminated, primarily because an investigation had indicated that while attending a conference, he had sent a sexually graphic image to the personal cell phone of a subordinate, who then displayed it to other coworkers. In federal court, he brought federal claims under 42 U.S.C. § 1983 as well as a state law claim seeking review of the administrative decision to fire him. In the end, the court declined to exercise supplemental jurisdiction over the state law claim because it found that the trial court had properly granted summary judgment for the county defendants on the federal constitutional claims. Merrifield v. Santa Fe Bd. of County Comm'rs, Nos. 10-2175, 10-2179, 2011 WL 3000687 (10th Cir. July 25, 2011).
One of the fired employee's constitutional claims was that his First Amendment right of association had been violated because the County had retaliated against him when, early in the disciplinary process, he had hired an attorney and informed the County that all communications on the matter should go through his attorney. The argument was that the retaliation had taken the form of choosing the strongest sanction—termination—as opposed to some lesser punishment that would have let the employee keep his job. The lower court found that the employee had failed to present enough evidence of a retaliatory motive to survive the summary judgment motion, but, as discussed by the Tenth Circuit, there was also a legal, not just factual, obstacle to the right-of-association claim.
It is settled law that a claim by a public employee that he was disciplined in retaliation for speech must involve speech that is on a matter of "public concern," in his capacity as a citizen, as opposed to a private grievance in his more limited capacity as an employee. Very recently the Supreme Court decided that the public‑concern requirement should similarly apply when a government employee complains of retaliation based on his exercise of the First Amendment right to petition the Government for redress of grievances. See Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).
The issue for the Tenth Circuit thus became whether the same public-concern requirement used for free speech and the right to petition the Government should apply to claims based on the right of association. It answered this question in the affirmative, at least for what it termed association in the "instrumental" sense, that is, associations which are necessary to engage in the other enumerated First Amendment rights. (The other type of right of association, referred to as "intrinsic," relating to certain intimate human interactions, is a component of substantive due process and was not at issue in Merrifield.)
In the court's view, the public-concern requirement applies to a claim that a government employer retaliated against an employee for exercising the instrumental right of freedom of association for the purpose of engaging in speech, assembly, or petitioning for redress of grievances. It stressed that the public-concern test in speech retaliation cases even has its origin in freedom-of-association cases, such as Pickering v. Board of Education, 391 U.S. 563 (1968). Thus, reasoned the court, "[i]t would be ironic, if not unprincipled, if the public-concern requirement derived from freedom-of-association cases did not likewise apply to retaliation for such association." Merrifield, 2011 WL 3000687, at *9. In addition, to in effect give special status to retaliation claims based on nonreligious instrumental freedom of association—by dropping the public-concern requirement in those cases—would violate the Supreme Court's pronouncements that the "political" First Amendment rights should be treated equally, at least in the Government-employment context.
The employee in Merrifield also advanced an argument that, in fact, his association with legal counsel in connection with the disciplinary charges against him did involve a matter of public concern, but the contention was rejected. When the actual, specific functions of Merrifield's attorney in the case were considered, it was clear that his role was to protect and advance his client's narrow legal interests, not to pursue matters of public concern. Borrowing a proposition from the Supreme Court, the court stated that a petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context. In effect, Merrifield's assertion amounted to saying that all association with counsel—in contrast to speech and petitions to the Government—is on a matter of public concern, and the court declined to accept such a suggestion. Id. at *11.