Gable v. Lewis

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0019P (6th Cir.)

File Name: 00a0019p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



SARAH GABLE,



Plaintiff-Appellee,





No. 98-3819

v.



>

RONALD G. LEWIS; KENNETH 



Defendants-Appellants, 

T. WOEHRMYER,







ROGER HANNAY, et al.,

Defendants. 

1

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 96-00973—Susan J. Dlott, District Judge.

Argued: November 3, 1999

Decided and Filed: January 13, 2000

Before: MERRITT and NELSON, Circuit Judges;

COHN,* District Judge.

*

The Honorable Avern Cohn, United States District Judge for the

Eastern District of Michigan, sitting by designation.

1

2 Gable v. Lewis, et al. No. 98-3819

_________________

COUNSEL

ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY

GENERAL, CORRECTIONS LITIGATION SECTION,

Columbus, Ohio, for Appellants. Alphonse A. Gerhardstein,

LAUFMAN, RAUH & GERHARDSTEIN, Cincinnati, Ohio,

for Appellee. ON BRIEF: Jeffery W. Clark, Allen P. Adler,

O F FICE OF THE ATTORNEY G E N E R A L,

CORRECTIONS LITIGATION SECTION, Columbus, Ohio,

for Appellants. Alphonse A. Gerhardstein, LAUFMAN,

RAUH & GERHARDSTEIN, Cincinnati, Ohio, for Appellee.

MERRITT, J., delivered the opinion of the court, in which

COHN, D. J., joined. NELSON, J. (pp. 7-9), delivered a

separate dissenting opinion.

_________________

OPINION

_________________

MERRITT, Circuit Judge. In this § 1983 case, plaintiff

Sara Gable, who operates an automobile towing company in

Lebanon, Ohio, claimed that the defendant, Ronald Lewis, an

official of the Ohio Highway Patrol, retaliated against her by

removing her from the patrol’s towing referral list because

she had filed with the state agency an official written

complaint of sex discrimination in the allocation of the

patrol’s automobile towing business. Her retaliation claim

was brought as a violation of the petition clause of the First

Amendment which bars government from “abridging . . . the

right of the people . . . to petition the government for a redress

of grievances.” After a three-day trial, the jury found that the

defendant was guilty of violating the petition clause when he

removed her from the towing list in retaliation for filing her

discrimination complaint. The jury awarded damages of

$55,000. On appeal, we take as true these facts as found by

the jury.

No. 98-3819 Gable v. Lewis, et al. 3

The defendant presents two issues of law on appeal: First,

he argues that the petition clause is inapplicable to her

grievance filed with the patrol because “only speech

concerning matters of ‘public concern’ is protected from

retaliatory conduct” by the petition clause and that plaintiff’s

discrimination complaint is personal to her and is not such a

matter of “public concern,” as required by Connick v. Myers,

461 U.S. 138, 145-48 (1983). Second, he argues that the

defendant is entitled to qualified immunity because the

“constitutional right [asserted] must be clearly established in

a particularized sense” under Anderson v. Creighton, 483 U.S.

635, 640 (1987), in order for a state official to be held

personally liable in damages for a constitutional tort and that

the constitutional right claimed in this case under the petition

clause was not “clearly established” at the time of the

retaliatory conduct.

Although historically the right of “petition” was confined

to seeking legislative or judicial relief, see Higginson, A Short

History of the Right to Petition Government for the Redress

of Grievances, 96 YALE L. J. 142 (1986), and although some

scholars insist that the scope of the petition clause should

remain so limited through judicial interpretation, Strauss,

Public Employees’ Freedom of Association, 61 FORDHAM L.

REV.473, 486 (1992), the Supreme Court has held to the

contrary. In California Transport v. Trucking Unlimited, 404

U.S. 508, 510 (1972), the Court, after explaining the

philosophy underlying the petition clause, said that the “same

philosophy governs the approach of citizens or groups of

them to administrative agencies,” and concluded that “the

right to petition extends to all departments of the

Government.” In extending the right of petition to

administrative agencies, the Court stated “that it would be

destructive of rights of association and of petition to hold that

groups with common interests may not . . . use the channels

and procedures of state and federal agencies and courts to

advocate their causes and points of view respecting resolution

of their business and economic interests viz-a-viz their

competitors.” Id. at 510-11. The petition clause is

analytically distinct from, although related to, the free speech

4 Gable v. Lewis, et al. No. 98-3819 No. 98-3819 Gable v. Lewis, et al. 9

clause; and the California Transport case clearly establishes One relationship “analogous to an employment

that the submission of complaints and criticisms to relationship,” as it happens, is the relationship between a

nonlegislative and nonjudicial public agencies like a police police force and a towing company to which the police force

department constitutes petitioning activity protected by the has historically referred business. See White Plains Towing

petition clause. Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993), where the

Second Circuit assumed for First Amendment analysis

The question before us is whether we should read into the purposes that the assignment of work to a towing company by

petition clause the “public concern” test established in the New York State Police “was tantamount to employment.”

Connick v. Myers, 461 U.S. 138, 145-48 (1983), a case Id. at 1059.

brought by a public employee under the speech clause of the

First Amendment. In Connick the Court said that a The towing company that brought the White Plains suit

governmental agency may discipline or impose punishment could not recover damages for an allegedly retaliatory

against a public employee for speech if the sanctioned speech termination of its referral arrangement, the Second Circuit

is a matter of “private” concern rather than “public concern.” held, absent a showing that the “speech” for which the

The Court made it clear that the reason for this distinction company claimed it had been delisted – primarily demands for

between “private” and “public” matters is to enable an increase in towing referrals – rose to the dignity of

governmental agencies, like private employers, to maintain “comments upon a matter of public concern.” Id. It was

order, discipline and civility in the workplace and to allow partly because the communications at issue flunked the

supervisory officials to discipline employees for offensive, public-concern test that a judgment entered in favor of the

insulting, or disruptive speech unrelated to expressions of plaintiff towing company was reversed by the Second Circuit.

opinion about policy matters. On the other hand, the Court

sought to retain the right of all citizens, including public We must, of course, give defendants the benefit of the

employees, to comment and express their views on matters of qualified immunity doctrine in any case where the doctrine is

governmental policy. In Connick, the Court did not apply the properly raised and to which it properly applies. The doctrine

“public concern” test to the petition clause, nor has it decided applies, as I understand it, with respect to any legal issue on

since Connick a case raising that point. Nor has the Court which there is no controlling Supreme Court or circuit

applied the test to citizens who are not governmental precedent and on which “officers of reasonable competence

employees. could disagree. . . .” See Malley v. Briggs, 475 U.S. 335, 341

(1986). The underlying issue in the case at bar – whether the

We believe that the law is clearly established that the First Amendment prohibits termination of a business

“public concern test” does not apply to the petitioning activity relationship in retaliation for the assertion of a private

in the instant case. First, in the California Transport case the grievance – is one on which there has heretofore been no

Supreme Court included within the scope of the petition controlling Supreme Court or Sixth Circuit authority and as

clause complaints “respecting resolution of their [petitioners’] to which federal judges of reasonable competence could

business and economic interests . . . .” 404 U.S. at 511. disagree and in fact have disagreed. Because I do not think

Thus, the petition clause itself is not generally limited to we ought to require Highway Patrol officers to be more

matters of “public concern” as described in the Connick case prescient than Article III judges when it comes to divining

but includes the petitioner’s private business interests. future developments in the law, I would recognize the

Second, the reason for the “public concern” test in Connick — defendants’ right to qualified immunity here.

to maintain order and avoid disruption in the governmental

8 Gable v. Lewis, et al. No. 98-3819 No. 98-3819 Gable v. Lewis, et al. 5

late as March of 1997 – some seven months after Ms. Gable’s workplace — does not apply in this case because the plaintiff

name was removed from the towing referral list – a judge of was not a governmental employee subject to the discipline of

this court was able to maintain without qualification that “the a governmental employer. She was simply a citizen offering

right to petition is limited to matters of public concern.” See services to a state agency. Since the reason for the test is

Valot v. Southeast Local School District Board of Education, missing in the present case — maintaining order in the

107 F.3d 1220, 1226 (6th Cir. 1997) (lead opinion by Engel, governmental workplace — the test should not be applied

J.). Judge Engel marshalled a number of cases in support of here, and the district court was correct in not including in its

this point of view, and noted only one case – San Filippo v. instructions to the jury a limitation on liability based on the

Bongiovanni, 30 F.3d 424, 440-43 (3d Cir. 1995) – to the Connick public concern test. Third, we find no authority in

contrary. Id. the Sixth Circuit limiting petitioning activity by public

employees to matters of “public concern” either generally or

It is true that the other members of the Valot panel (Merritt in the governmental employment context. In Valot v.

and Ryan, JJ.) disagreed with Judge Engel. Judge Ryan Southeast Local School District Board of Education, 107 F.3d

reached the same result by a different analytical route, see 1220 (1997), one judge believed that the petition clause

Valot, 107 F.3d at 1230-31 (Ryan, J., concurring), and Judge should be so limited in actions by public employees against

Merritt, in dissent, said that he would follow San Filippo. their employers, but two other judges of the court did not

Valot, 107 F.3d at 1234 (Merritt, J., dissenting). But if agree. See also San Filippo v. Bongiovanni, 30 F.3d 424 (3rd

reasonable members of this court could disagree in March of Cir. 1995)(holding that the “public concern” test does not

1997 over the applicability of the public-concern test in the apply to petitioning public employees), discussed and

Petition Clause context, how can we say that the law was so analyzed extensively in Shea, San Filippo v. Bongiovanni:

clearly established seven months earlier that there was no The Public Concern Criteria and the Scope of the Modern

room at that time for disagreement among reasonable Petition Right, 48 VAND. L. REV.1697 (1995), and Thaddeus-

Highway Patrol officials? X v. Blatter, 175 F.3d 378, 392 (6th Cir. 1997, en

banc)(holding that a prisoner’s right to petition the

I must acknowledge, to be sure, that the Valot plaintiffs – government for redress of grievances is not subject to the

untenured substitute bus drivers – were sometime employees public concern limitation imposed in free speech actions

of the public body that stood accused of having retaliated involving public employees). Thus there is no basis in our

against them, while Ms. Gable was not an employee of the First Amendment jurisprudence for applying Connick’s public

Ohio State Highway Patrol. But as the Court of Appeals for concern test to petitioning activity by a private business

the Fifth Circuit observed in Blackburn v. City of Marshall, woman who is simply supplying services to a governmental

42 F.3d 925, 932 (5th Cir. 1995), “[a]lthough the agency as an independent contractor.

Pickering/Connick [public-concern] test arose in the context

of public employment, courts have not strictly cabined its The fact that there is a judge somewhere, as imagined by

application. . . . Courts have extended [its] analysis to cases our dissenting colleague, who in this case might conclude

involving relationships analogous to an employment erroneously that a private citizen like plaintiff, who tows cars

relationship.” See, in this connection, Copsey v. Swearingen, for a living and receives no compensation from the state, is

36 F.3d 1336, 1344 (5th Cir. 1994) (a blind operator of a “tantamount” or “analogous” to a government employee, does

concession stand in a public building “was more like a public not persuade us. After many years watching judges, we agree

employee than an ordinary citizen,” so the public-concern test that a judge or judges somewhere might so conclude. But

had relevance to his situation). when such a ruling would be clearly contrary to a Supreme

6 Gable v. Lewis, et al. No. 98-3819 No. 98-3819 Gable v. Lewis, et al. 7

Court case like California Transport, supra, and entirely _________________

inconsistent with the Supreme Court’s orderly-public-

workplace reasoning in the Connick case, we should not be DISSENT

dissuaded by the error of such a hypothetical judge. This is _________________

especially true when we recognize that government retaliation

for filing a petition violates the literal language of the Petition DAVID A. NELSON, Circuit Judge, dissenting. With the

Clause which forbids “abridging . . . the right of the people publication of the court’s opinion in this case, it becomes a

. . . to petition the government for a redress of grievances.” settled rule of law in the Sixth Circuit that even where a

Most cases can be imagined to be “tantamount” or plaintiff cannot meet the “public concern” test of Connick v.

“analogous” to some other case. We should not split hairs Myers, 461 U.S. 138 (1983), government officials may not

when the conduct literally violates the language of the withdraw a business advantage in retaliation for the plaintiff’s

Petition Clause and when the Supreme Court seems to be exercise of the First Amendment right to petition for a redress

clear on the subject. of grievances. It is unlikely, in my opinion, that the Supreme

Court would disagree with our holding on this point.

For these reasons, we conclude that the law interpreting the

petition clause protects the plaintiff in filing a complaint with I part company with my colleagues on the panel, however,

the Ohio Highway Patrol claiming sex discrimination, and when it comes to the proposition that the non-applicability of

this law was clearly established prior to the retaliatory Connick’s public-concern test in Petition Clause cases had

conduct found by the jury in the present case. We also been clearly established by July of 1996, the point at which

conclude that the law was clearly established that the “public the name of towing company operator Sara Gable was

concern” test does not apply to plaintiff’s petitioning activity. removed from the Ohio State Highway Patrol’s referral list.1

Hence the doctrine of official immunity is inapplicable, and And if the rule announced today was not clearly established

the jury verdict should not be set aside for either of the two in July of 1996 – in other words, if the state of the law was

reasons advanced by the defendant. such that officials of reasonable competence could disagree as

to the applicability of the public-concern test in a Petition

Accordingly, the judgment of the district court is Clause situation – the defendants are entitled to qualified

AFFIRMED. immunity.

I am not prepared to say that the non-applicability of the

public-concern test in Petition Clause cases was clearly

established in mid-1996. To begin with, neither the Supreme

Court nor the Sixth Circuit had ever decided the question.

The answer given by this court today was not clearly

foreshadowed by the Supreme Court’s opinion in California

Transport v. Trucking Unlimited, 404 U.S. 508 (1972), so as

1

Ms. Gable failed to prove that her sex was a motivating factor in her

removal from the list, but we must take it as given, the jury having so

found, that the filing of her complaint of sex discrimination was a

motivating factor insofar as defendant Lewis was concerned.