Thursday, October 1, 2015

Lyons v. Vaught

Opinion handed down March 24, 2015[1]
 A former University of Missouri - Kansas City (“UMKC”) part-time lecturer filed a 42 U.S.C. § 1983 action against UMKC administrators for retaliation, alleging that they discontinued the lecturer’s appointment due to his speech regarding student athlete favoritism.[2]  The lecturer claimed his protected speech contributed to this adverse employment action taken against him, which would be unlawful due to the First Amendment concerns of public employees.[3]  The Eighth Circuit held that, because the lecturer failed to allege administrators' awareness of the protected speech, it was not clearly established that the adverse employment action was unlawful, and administrators were therefore to be given qualified immunity.[4]

I.  Facts and Holding        
Plaintiff Henry Lyons, a part-time lecturer for seven semesters with UMKC, taught a course that was attended by a student athlete.[5]  In the Fall of 2010, Lyons gave that student athlete a failing grade in the course, and the student appealed the grade using UMKC's grade-appeal process.[6]  During this process, Lyons discussed the grading with Reginald Bassa, UMKC's Director of the Program for Adult College Education, and Bassa decided to permit the student athlete to write a new class paper.[7]  Afterward, Lyons spoke with F. Wayne Vaught, UMKC's Dean of the College of Arts & Scienecs, due to his concern for, among other things, “preferential treatment afforded to this Student Athlete and others.”[8] 
After further events that led to the student athlete submitting a new class paper, the student athlete was given a passing grade in the course, and in November of the next academic year, Lyons, with others, spoke to UMKC's Chancellor Leo Morton regarding “preferential treatment afforded to student athletes. . . [.]” [9]  After talking to the Chancellor without effect, Lyons then spoke to Bassa and Vaught again about the same topics as his discussion with the Chancellor. [10]  Lyons' course was, without notice, no longer offered for the following semester, and Bassa and Vaught did not recommend him for reappointment to his position. Lyons subsequently brought this action for retaliation in state court. [11] 
The original defendants, Bassa, Vaught, and the Chancellor, removed the case to federal court and filed their first motion to dismiss.  In response, Lyons submitted the amended complaint from which these facts are taken.[12]  The amended complaint named only Bassa and Vaught as defendants, whose second motion to dismiss alleged qualified immunity and a failure to state a claim.[13]  The district court denied this motion to dismiss from which this appeal followed.[14]
The district court found that although Lyons' first discussions with Bassa and the Vaught were likely part of his official duties, and therefore not protected speech insofar as they dealt with the student athlete's grade appeal process, the amended complaint was not detailed enough for the court to determine that Lyons' meeting with the Chancellor was part of his official duties.[15]  The district court therefore denied both the failure to state a claim basis and the qualified immunity basis of the motion to dismiss, because the allegations established the plausibility that a meeting with the Chancellor involving protected speech occurred.[16]  The Eighth Circuit’s opinion, authored by Circuit Judge Loken, reversed and remanded the order of the district court.[17]  The Eighth Circuit held that where the only claimed protected speech was made to a person other than the defending parties, and the plaintiff's complaint does not allege the defending parties had knowledge or awareness of the protected speech, the “motivating factor” requirement of a public employee First Amendment retaliation claim has not been plausibly alleged, and qualified immunity acts to bar the claim.[18]
II.  Legal Background
Subject to substantial exceptions and balancing, the traditional and general rule is that government employers may put a wide variety of restrictions on the exercise of the rights of their public employees.[19]  First Amendment speech protection, fundamental to the ordering of U.S. society, has for a long time led to a limitation on a government employers' control: where a public employee speaks “as a citizen on a matter of public concern,” and, where the government is not adequately justified in treating that employee differently from citizens in general, the government employer may not take adverse action against the employee due to that speech.[20]   Speech made under an employee's official duties is not citizen-speech about a public concern, and therefore can be restrained by a government employer.[21]  Because the government also desires a productive workplace, courts use methods to discern between the sort of restrictions used to remedy concerns that would be faced by private employers and those that silence “employee's speech as private citizens.”[22]  A 42 U.S.C. §  1983 action is a mechanism to enforce this Free Speech protection.[23]
Qualified immunity, which renders public officials carrying out duties in their discretion immune from suit unless certain conditions are met, is supported by the policy that such officials require “breathing room to make reasonable but mistaken judgments.”[24]  When facing a qualified immunity defense, a plaintiff needs to show that “'every reasonable official would have understood that what he is doing violates' a constitutional right,” such that it is “clearly established law.”[25]  Out of concern that it would eliminate important analysis of the circumstances, “clearly established” law should not be found at a too abstract level of generality.[26]  Yet in the context of public employee free speech protection, because the balancing of the public employer's interest against the public employee's speech interest is such a fact-heavy process, “it can rarely be considered 'clearly established' for purposes of [qualified immunity].”[27] 
When a public employee alleges retaliation for constitutionally protect speech, he must show: (1) “that the conduct at issue as constitutionally protected,” (2) “that [the speech] was a substantial or motivating factor in the termination,” and (3) the government must not have shown “it would have taken the same action even in the absence of the protected conduct.”[28]  Because of qualified immunity's protection of government officials, the complaint or petition for this type of retaliation needs to contain allegations that establish a claim for violation of a right, which claim is facially “plausible.”[29]  As a policy matter, the more difficult pleading requirements against government officials frees them from the worries and time-commitments potentially brought on by discovery and litigation. [30] 
III.  Instant Decision
The Eighth Circuit began its reasoning by stating the elements that composed Lyons' First Amendment retaliation claim: (1) Lyons engaged in First Amendment-protected activity, (2) the Defendants took adverse employment actions, and (3) the First-Amendment-protected activity must have been a motivating or substantial factor in the decision to take the second element's action.[31]  The court then explained the relevant distinction between First Amendment-protected speech in this context, where public employees, as citizens, speak on matters of public concern, and unprotected speech, which occurs at least where public employees speak concerning their duties.[32]  The Eighth Circuit agreed with the district court that Lyons' Amended Complaint avoided a Rule 12(b)(6) challenge for failure to state a claim, because Lyons' meeting with the Chancellor was appropriately characterized as about a matter of public concern, and the information in the Amended Complaint was insufficient to determine whether the meeting with the Chancellor was concerning the student appeal process, one of Lyons' job duties.[33]        
The Eighth Circuit then turned to the matter of the Defendants' qualified immunity.[34]  The court agreed with the Defendants' argument, which stated that Lyons had not plausibly alleged that the protected speech involved in his meeting with the Chancellor was a factor in the employment action taken against him.[35]  The Court acknowledged the fact-intensiveness of the issue of causality/contribution, but also considered failure to allege defendants' knowledge or awareness of the protected speech to be fatal to Lyons' claim in light of qualified immunity.[36]  Discussing the allegation from Lyons' Amended Complaint that, after meeting with the Chancellor, Lyons had “voiced the same concerns” to Bassa and Vaught, the court considered this allegation to be “plausibly related to the student appeals process, not to any unrelated speech as a citizen.”[37]  Because only unprotected speech was alleged to be in the awareness of Vaught and Bassa when they decided to perform the adverse employment action, it was not clearly established that that action was illegal retaliation, and therefore the Defendants were protected by qualified immunity.[38]
IV.  Comment
This case might be seen as anti-egalitarian.  Qualified immunity has been used to prevent Lyons from having his claim fully heard.  If through some non-alleged or unknown exchange the Chancellor's meeting was communicated to Vaught and Bassa, the retaliation claim might have been successful, but because the claim was dismissed, discovery will not be performed.  This could seem like a loss to the public; Missourians may remain in the dark about the existence or extent of student-athlete favoritism at UMKC.  But qualified immunity for public employers is worth a substantial price, and a bundle of good aspects recommend it.  As mentioned above,[39] it provides breathing room to public officials who would otherwise find it difficult to carry out their jobs.  Certain public officials could become crippled with claims that are not quite frivolous.  With the current expanse, complexity, and uncertainty in some areas of law, qualified immunity allows public officials to do what they do to support a primarily functioning society even when constitutions, statutes, regulations, and ordinances would, if strictly applied, lead to a dysfunctional society.
– Rich Byrd

[1] Lyons v. Vaught, 781 F.3d 958 (8th Cir. 2015).
[2] Id. at 959-60.
[3] Id. at 960-61.
[4] Id. at 962-63.
[5] Lyons, 781 F.3d at 959.
[6] Id. at 960.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 959-61.
[12] Id. at 960.
[13] Id.
[14] Id.
[15] Id. at 962.
[16] Id.
[17] Id. at 959, 963.
[18] See id. at 962-963.
[19] See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
[20] Id. at 418; see generally Connick v. Myers, 461 U.S. 138, 142-54 (1983) (providing a useful discussion of public employee free speech protection).
[21] Lane v. Franks, 134 S. Ct. 2369, 2378 (2014) (citing and quoting Garcetti, 547 U.S. at 421).
[22] Harris v. Quinn, 134 S. Ct. 2618, 2653 (2014).
[23] See Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2492 (2011) (public employee using a 1983 action); City of San Diego, Cal. v. Roe, 543 U.S. 77, 79 (2004) (similar).
[24] 14A C.J.S. Civil Rights § 459; Stanton v. Sims, 134 S.Ct. 3, 5 (2013) (internal quotation marks omitted).
[25] Story v. Foote, 782 F.3d 968, 970 (8th Cir. 2015) (internal quotation marks omitted) (quoting Ashcroft v. al–Kidd,131 S.Ct. 2074, 2083 (2011)).
[26] See Blazek v. City of Iowa City, 761 F.3d 920, 924 (8th Cir. 2014) (internal quotation marks omitted) (quoting Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014)).
[27] Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir. 1992).
[28] Bd. of Cnty. Comm'rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996).
[29] Hager v. Arkansas Dep't of Health, 735 F.3d 1009, 1013 (8th Cir. 2013).
[30] See Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009).
[31] Lyons v. Vaught, 781 F.3d 958, 961 (8th Cir. 2015).
[32] Id.
[33] Id. at 962.
[34] Id.
[35] Id.
[36] Id. at 963.
[37] Id.
[38] Id.
[39] Cf. Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009).