# Sarah Gable v. Ronald G. Lewis Kenneth T. Woehrmyer, Roger Hannay

> Court of Appeals for the Sixth Circuit · January 13, 2000 · 201 F.3d 769

URL: https://www.frixlaw.com/law-library/cases/9492725

## Case

- **Full name:** Sarah GABLE, Plaintiff-Appellee, v. Ronald G. LEWIS; Kenneth T. Woehrmyer, Defendants-Appellants, Roger Hannay, Et Al., Defendants
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 13, 2000
- **Citations:** 201 F.3d 769; 2000 U.S. App. LEXIS 433; 2000 WL 19123
- **Precedential status:** Published
- **Opinion:** Dissent by Nelson
- **Judges:** Merritt, Nelson, Cohn
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Sherry Jones v. Union County, Tennessee Union County Sheriff's Department, 296 F.3d 417 (2002).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492725

## How later opinions describe it (automated extraction)

- holding that, as an independent contractor for a government agency, plaintiff alleging retaliation need not prove that her complaint for sex discrimination touched on matters of public concern
- holding that Petition Clause should only be limited to matters of “public concern” where it is necessary to maintain order and avoid disruption in a governmental workplace
- finding it clearly established that petition clause protects filing sex discrimination complaint with highway patrol
- recognizing that the constitutional right asserted must be clearly estab *52 lished in a particularized sense

## Opinion text

DAVID A. NELSON, Circuit Judge,
dissenting.
With the publication of the court’s opinion in this case, it becomes a settled rule of law in the Sixth Circuit that even where a plaintiff cannot meet the “public concern” test of Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), government officials may not withdraw a business advantage in retaliation for the plaintiffs exercise of the First Amendment right to petition for a redress of grievances. It is unlikely, in my opinion, that the Supreme Court would disagree with our holding on this point.
I part company with my colleagues on the panel, however, when it comes to the proposition that the non-applicability of Connick’s public-concern test in Petition Clause cases had been clearly established by July of 1996, the point at which the name of towing company operator Sara Gable was removed from the Ohio State *773 Highway Patrol’s referral list. 1 And if the rule announced today was not clearly established in July of 1996 — in other words, if the state of the law was such that officials of reasonable competence could disagree as to the applicability of the public-concern test in a Petition Clause situation — the defendants are entitled to qualified 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 , 92 S.Ct. 609 , 30 L.Ed.2d 642 (1972), so as late as March of 1997 — some seven months after Ms. Gable’s name was removed from the towing referral list — a judge of this' court was able to maintain without qualification that “the right to petition is limited to matters of public concern.” See Valot v. Southeast Local School District Board of Education, 107 F.3d 1220, 1226 (6th Cir.1997) (lead opinion by Engel, J.). Judge Engel marshalled a number of cases in support of this point of view, and noted only one case — San Filippo v. Bongiovanni, 30 F.3d 424, 440-43 (3d Cir.1994) — to the contrary. Id.
It is true that the other members of the Valot panel (Merritt and Ryan, JJ.) disagreed with Judge Engel. Judge Ryan reached the same result by a different analytical route, see Valot, 107 F.3d at 1230-31 (Ryan, J., concurring), and Judge Merritt, in dissent, said that he would follow San Filippo. Valot, 107 F.3d at 1234 (Merritt, J., dissenting). But if reasonable members of this court could disagree in March of 1997 over the applicability of the public-concern test in the Petition Clause context, how can we say that the law was so clearly established seven months earlier that there was no room at that time for disagreement among reasonable Highway Patrol officials?
I must acknowledge, to be sure, that the Valot plaintiffs — untenured substitute bus drivers — were sometime employees of the public body that stood accused of having retaliated against them, while Ms. Gable was not an employee of the Ohio State Highway Patrol. But as the Court of Appeals for the Fifth Circuit observed in Blackburn v. City of Marshall, 42 F.3d 925, 932 (5th Cir.1995), “[although the Pickering/Connick [public-concern] test arose in the context of public employment, courts have not strictly cabined its application .... Courts have extended [its] analysis to cases involving relationships analogous to an employment relationship.” See, in this connection, Copsey v. Swearingen, 36 F.3d 1336, 1344 (5th Cir.1994) (a blind operator of a concession stand in a public building “was more like a public employee than an ordinary citizen,” so the public-concern test had relevance to his situation).
One relationship “analogous to an employment relationship,” as it happens, is the relationship between a police force and a towing company to which the police force has historically referred business. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir.1993), where the Second Circuit assumed for First Amendment analysis purposes that the assignment of work to a towing company by the New York State Police “was tantamount to employment.” Id. at 1059 .
The towing company that brought the White Plains suit could not recover damages for an allegedly retaliatory termination of its referral arrangement, the Second Circuit held, absent a showing that the “speech” for which the company claimed it had been delisted — primarily demands for *774 an increase in towing referrals — rose to the dignity of “comments upon a matter of public concern.” Id. It was partly because the communications at issue flunked the public-concern test that a judgment entered in favor of the plaintiff towing company was reversed by the Second Circuit.
We must, of course, give defendants the benefit of the qualified immunity doctrine in any case where the doctrine is properly raised and to which it properly applies. The doctrine applies, as I understand it, with respect to any legal issue on which there is no controlling Supreme Court or circuit precedent and on which “officers of reasonable competence could disagree .... ” See Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986). The underlying issue in the case at bar — whether the First Amendment prohibits termination of a business relationship in retaliation for the assertion of a private grievance — is one on which there has heretofore been no controlling Supreme Court or Sixth Circuit authority and as to which federal judges of reasonable competence could disagree and in fact have disagreed. Because I do not think we ought to require Highway Patrol officers to be more prescient than Article III judges when it comes to divining future developments in the-law, I would recognize the-deféndants’ right to qualified immunity here.
. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492725. Public record. Not legal advice.