Opinion
No. CIV 99-0982 PK/WWD
January 29, 2002
ORDER
THIS MATTER comes on for consideration of Defendants Motion for Summary Judgment filed January 9, 2002 (Doc. 36). Upon consideration thereof,
(1) In a prior order, Judge Campos dismissed all Defendants, save Defendant Pete K. Rahn (Rahn). Doc. 17 at 35-36. Judge Campos determined that Rahn, in his official capacity, had Eleventh Amendment immunity to the extent Plaintiff Finn (Finn) seeks back pay, and other non-prospective, non-injunctive relief. Rahn, in his individual capacity, was granted qualified immunity on a substantive due process claim, but not on Plaintiffs wrongful termination claim based upon the First Amendment.
(2) After Judge Campos order, the following claims remained: (1) a substantive due process claim against Rahn, in his official capacity, for prospective equitable relief; (2) a First Amendment claim against Rahn, in his official capacity, for prospective equitable relief, and (3) a First Amendment claim against Rahn in his individual capacity. The IPTR suggests that only the First Amendment claims remain. Doc. 31 at 3-4.
(3) In denying Rahn qualified immunity on the First Amendment claim, Judge Campos determined that Finn had engaged in protected speech, and the law against termination of a public employee in retaliation for such speech was clearly established in 1995. Doc. 17 at 30. Judge Campos did not address causation, i.e., whether the speech was a substantial or motivating factor in Finns discharge, or whether Rahn would have taken the same action, even in the absence of Finns protected speech. Doc. 17 at 21-22; Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Defendants causation argument came too late in a reply brief, and was contrary to the assumption in their motion that causation was assumed, for purposes of the motion. Doc. 17 at 22 n. 6. The Tenth Circuit upheld the denial of qualified immunity on the same basis and did not address causation. Finn v. New Mexico, 249 F.3d 1241, 1247 n. 1, 1250 (10th Cir. 2001).
(4) Rahn seeks summary judgment on the basis that (1) Finns First Amendment claim is barred by issue preclusion due the New Mexico State Personnel Boards (NMSPB) finding that Finn engaged in misconduct and was therefore terminated for just cause; (2) Rahns motivation is irrelevant — Rahn fired Finn because of the tone of Finns admittedly insubordinate memos [(IDCs)] and would have done so regardless, and (3) Rahn is entitled to qualified immunity because the law is clearly established that if an employee gives an employer just cause to fire him, the employee forfeits any chance to successfully prosecute a civil rights claim. Doc. 37 at 16.
(5) The parties submissions have been evaluated in accordance with Fed.R.Civ.P. 56, Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Harlow v. Fitzgerald, 457 U.S. 800 (1982). See also Saucier v. Katz, 121 S.Ct. 2151, 2155-56 (2001) (framework for analyzing qualified immunity claims).
(6) Finns First Amendment retaliation claim is not barred by issue preclusion because whether Rahn had an improper motive for terminating Finn simply was not before the NMSPB. See Barnes v. McDowell, 848 F.2d 725, 730-32 (6th Cir. 1988); see also Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1046-47 (6th Cir. 2001); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1074-75 (3d Cir. 1990); Wicker v. Bd. of Educ., 826 F.2d 442, 448-51 (6th Cir. 1987); Rex, Inc. v. Manufactured Housing Committee of N.M. Mfd. Housing Div., 892 P.2d 947, 951 (N.M. 1995) (requirements for collateral estoppel).
As the court stated in Bradley: Mt. Healthy requires more than a showing that defendants could properly terminate an employee. It requires a showing that the employer would have terminated the employee in the absence of his protected activity. 913 F.2d at 1075 (emphasis in original). Finn is precluded, however, from contesting the findings that his conduct in sending the August 17, 21 and 24, 1995 IDCs (and sending them over the e-mail system) constituted misconduct, and that such misconduct constituted just cause for his dismissal, Doc. 38, Ex. K at 29, Finding of Fact Nos. 39 40; id., Recommended Conclusions of Law No. 5. See Bradley, 913 F.2d at 1074; Barnes, 848 F.2d at 732; Wicker, 826 F.2d at 448-49.
(7) The court cannot now conclude as a matter of law that Rahns motivation is irrelevant merely because Finn pleaded for merciful treatment and Rahn asserts a legitimate reason for firing him, i.e., the tone of Finns writings. See Mt. Healthy, 429 U.S. at 287; see also Board of County Commrs v. Umbehr, 518 U.S. 668, 685 (1996) (discussing mechanics of proof). Finn points out that Defendants previously contended that Finn was terminated because he was incapable of doing his job due to insanity. Doc. 39 at 9. See also Doc. 17 at 22 n. 6.
(8) Insofar as the qualified immunity argument, the court concludes that the presence of a legitimate reason is not always sufficient to preclude a civil rights action where adverse action may have been taken in retaliation for protected activity. As background, the Tenth Circuit has long held that an action taken in retaliation for the exercise of constitutional rights is actionable, even if it would have been proper in the absence of such motivation. See Poole v. County of Otero, 271 F.3d 955, 960-61 (10th Cir. 2001); Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998); DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). Although Mt. Healthy provides an affirmative defense in mixed motive cases, the court cannot conclude that every mixed motive case is suitable for qualified immunity. In the alternative, further factual development of this case will clarify (with evidence) the respective positions of the parties. Finally, Rahn urges the court to follow Stanley v. City of Dalton, 219 F.3d 1280, 1298 (11th Cir. 2000), Denno v. School Bd. of Volusia County, 218 F.3d 1267, 1275 (11th Cir. 2000), and Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir. 1989), and hold that a reasonable public official could not have anticipated that Finns speech was protected. The Tenth Circuit has spoken to the contrary, Finn, 249 F.3d at 1250, and has distinguished the approach relied upon by the Eleventh Circuit from its own, see Wulf v. City of Wichita, 883 F.2d 842, 865 (10th Cir. 1989).
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED
Defendants Motion for Summary Judgment filed January 9, 2002 (Doc. 36), is denied.