In Griggs v. Chickasaw County, Mississippi, the Fifth Circuit Court of Appeals again issued an opinion on the subject of government retaliation for the exercise of free speech.
Today, we look at a situation in which a local government fired an employee because he intended to run for office against the local government’s favored candidate.
The facts in Griggs
Griggs worked as Chickasaw County’s Solid Waste Enforcement Officer for fifteen years without receiving any complaints about his job performance. His duties related to illegal dumping of waste, including investigations, searches, identifying the violator, ensuring proper cleanup, and going to court.
Griggs applied for grants each year to fund his work, and grants from the Mississippi Department of Environmental Quality supported at least half of his salary.
In 2015, Griggs decided to run for Sheriff of Chickasaw County as an Independent. In July 2015, Griggs spoke with Anderson McFarland, a member of Chickasaw’s five-member Board of Supervisors, about his campaign.
Supervisor McFarland asked if Griggs was “going to pull out” of the sheriff race. Griggs answered “no”.
Supervisor McFarland responded that Supervisor Jerry Hall and “them” wanted Griggs to withdraw from the race.
In 2015, the County’s Chancery Clerk notified the Board that the solid waste fund was in the red and that the County had not received funding from a grant that Griggs should have submitted in 2014.
In August 2015, the Chancery Clerk shared with Griggs that the County had not received the usual grant money. While MDEQ did not have a grant application on file from the County, Griggs claimed to have submitted the grant application.
On September 22, 2015, the Chancery Clerk asked Griggs to attend the Board meeting to explain to the Board what happened to the grant.
At the meeting, Supervisor Hall asked the Chancery Clerk whether the County had received its grant money, and the clerk replied “no”. Supervisor Hall then responded, “I say we go ahead and just eliminate this program right now.”
The clerk advised the Board that the County had another grant and suggested that the County use that grant to fund Griggs’ position through the start of the year.
However, Supervisor Russell Brooks rejected the suggestion because the County did not have the “money in hand.” Supervisor Hall then chimed in and also rejected the suggestion.
The Board unanimously voted to eliminate Griggs’ position of Solid Waste Enforcement Officer, and the position was reported as being eliminated “due to lack of funds.”
About a week later, Griggs again spoke with Supervisor McFarland at a restaurant. Supervisor McFarland told Griggs that his termination “looked like political favoritism and that the Board was going to go back and revisit” the issue.
Griggs had “high hopes that the Board would do that, but he never heard another thing” about it. The Board did not reconsider its decision.
Griggs did not appeal the Board’s decision to the County’s Circuit Court. Also, he applied to the Mississippi Employment Security Commission (“MESC”) for unemployment benefits. In Griggs’ unemployment application, he responded that he was “laid off.”
Griggs files suit.
Subsequently, Griggs sued the County under Section 1983 and alleged that the County eliminated the Solid Waste Enforcement Officer position because of constitutionally protected political activity (i.e., running for sheriff).
The County moved for summary judgment, which the district court denied. The case proceeded to trial.
The jury returned a verdict for Griggs. In doing so, the jury found:
- That Griggs had proven by a preponderance of the evidence that his running for Sheriff was a motivating factor in his losing his position as Solid Waste Enforcement Officer; and
- That the County had failed to prove by a preponderance of the evidence that it would have eliminated the position regardless of whether or not Griggs ran for Sheriff.
The County appeals.
On appeal, the County raised the following five issues:
First, the County invoked the Rooker-Feldman doctrine that prohibits a federal court from entertaining a collateral attack on a state court judgment.
As the Fifth Circuit quickly noted, the decision of the Board of Supervisors was not a “state court judgment,” so the doctrine did not apply.
Second, the County argued that Griggs was barred by the doctrine of judicial estoppel because he told the MESC he was “laid off.”
The Court explained that judicial estoppel is appropriate when: (1) a party has asserted a position that is plainly inconsistent with a previously asserted position, (2) the earlier position was accepted by the court, and (3) the party did not act inadvertently.
Because Griggs had simply told the MESC the reason the County gave him for his termination, he had not taken a position “plainly inconsistent” with his Section 1983 claim.
Failure to exhaust state remedies
Next, the County complained that Griggs could not bring suit in federal court because he failed to appeal the Board’s decision to Circuit Court.
The Fifth Circuit quickly rejected this because a plaintiff asserting a Section 1983 claim is not required to exhaust state judicial or administrative remedies. (If it were otherwise, a state court put substantial barriers between a plaintiff and his federal civil rights.)
Here, the Court began by noting “it is well settled that the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”
“To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.”
The County focused on the third prong – – the balance between the government’s interests and Griggs’ interests.
The Fifth Circuit explained that a court “more readily finds that the government’s interests outweigh the employee’s interests where the employee is a policymaker” for purposes of the First Amendment.
“A policymaker is an employee whose responsibilities require more than simple ministerial competence, whose decisions create or implement policy, and whose discretion in performing duties or in selecting duties to perform is not severely limited by statute, regulation, or policy determinations made by supervisors.”
Although the County argued that Griggs was a policymaker, the Fifth Circuit disagreed.
“There is no evidence that Griggs created or implemented policy or that he had discretion in performing his duties that was not severely limited by a supervisor. As the district court noted, Griggs was required to report to the road manager, and besides applying for grants, he was not involved in the funding process. The County’s argument that Griggs occupied a policymaking position fails.”
Sufficiency of the evidence
Finally, the County argued that Griggs failed to prove that a majority of the Board eliminated his position because he ran for sheriff.
The Court began by setting forth the established rule that a local government “faces liability under Section 1983 only if action pursuant to official municipal policy of some nature caused a constitutional tort.”
When the local government’s policymaker is a multi-member board, “the separate actions of individual members of the Board are not sufficient to bind the Board as an entity.”
The Fifth Circuit agreed that that Griggs was required to show that a majority of the Board had retaliatory animus.
“Even so, there is a legally sufficient basis for the jury’s verdict. Drawing all reasonable inferences in Griggs’ favor, which we must do, there is evidence that at least three of the five board members had retaliatory motive. This evidence is legally sufficient to support the jury’s verdict.”
Thus, the jury’s verdict was affirmed.
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