reaching the merits of whether the defendants were entitled to qualified immunity if a fact-finder accepted the plaintiffs version of the facts, noting that the defendant would otherwise lose his immunity from suit if we were to grant a plaintiffs motion to dismiss an interlocutory appeal
How later courts described this case
- reaching the merits of whether the defendants were entitled to qualified immunity if a fact-finder accepted the plaintiffs version of the facts, noting that the defendant would otherwise lose his immunity from suit if we were to grant a plaintiffs motion to dismiss an interlocutory appeal
- dismissing Maine Civil Rights , Section 4684-B does not apply to the facts of this case. See 5 M.R.S. § 4684-B (2013). 12 Act Claim where plaintiff alleged only adverse employment actions
- holding death knell exception to this rule applied when a defense of sovereign immunity has been asserted
- interlocutory review of denial of qualified immunity at summary judgment stage proper because defendant would irreparably lose right to avoid having to defend against suit
Written by the judges who cited it.
The opinion
DANA, Justice,
with whom ROBERTS, Justice, joins, concurring in part and dissenting in part.
[¶24] I agree that Andrews’s motion to dismiss this appeal should be denied, that the individual defendants may not invoke qualified immunity as a defense to an action for equitable relief, and that the DEP, a state agency, is not a proper defendant in a section 1983 action. I also concur in the Court’s judgment that the defendants are entitled to *221 a summary judgment on Andrews’s claims brought pursuant to the Maine Constitution, although I am not convinced that the Maine Civil Rights Act necessarily precludes a private cause of action for a constitutional violation in the absence of physical force or violence, damage or destruction of property, trespass on property, or threats thereof. Andrews, however, was entitled to, and utilized, the grievance procedure available to him under his collective bargaining agreement. See 26 M.R.S.A. § 979-K (1988). He was also entitled to judicial review of the resolution of the grievance procedure. Id. § 979-M. These dispute resolution procedures, in my opinion, provided a constitutionally adequate remedy to Andrews for retaliation for engaging in protected speech. See Bush v. Lucas, 462 U.S. 367 , 103 S.Ct. 2404 , 76 L.Ed.2d 648 (1983) (refusing to recognize private cause of action under the First Amendment for federal employee whose free speech rights had been violated by his supervisors in light of extensive civil service remedies for unlawful employment practices).
[¶ 25] I do not concur, however, in the Court’s conclusion that “reasonable public officials could disagree as to whether the der fendants’ conduct violated Andrews’s First Amendment right,” and I would deny a summary judgment for the individual defendants on the basis of qualified immunity.
[¶26] The Court, in a clear and concise manner, articulates the proper standard to be applied in eases alleging an interference with a public employee’s First Amendment right to speak out on matters of public concern. Unfortunately, it then fails to apply the standard in any meaningful way. The Court determines simply that because the fact-based balancing test required in public employee free speech eases makes it difficult for public officials to determine whether an employee’s rights were violated, reasonable public officials could disagree as to whether Andrews’s rights were violated in this case. The facts of this case, however, fall so squarely within the parameters of Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), that I cannot agree that any reasonable public official would have a question whether Andrews’s letter to the Maine Times could be the subject of retaliation.
[¶ 27] In Pickering a public school teacher was dismissed from employment for wilting and publishing a letter to the editor of his local newspaper that was highly critical of the board of education and the district superintendent of schools. See id. at 564 , 88 S.Ct. 1731 . In particular, Pickering objected to the board’s allocation of school funds between educational and athletic programs, and to both the board’s and the superintendent’s handling of two bond issues and two proposed tax increases intended to benefit the schools. In applying its balancing test and concluding that Pickering’s dismissal was impermissible, the Supreme Court held that Pickering’s criticisms were valid subjects of public concern, did not impede the proper performance of his daily duties in the classroom, and did not interfere with the regular operation of the schools generally. See id. at 572-73 , 88 S.Ct. 1731 . I am not convinced that the circumstances surrounding Andrews’s letter to the Maine Times are sufficiently distinct from those in Pickering , notwithstanding the defendants’ claimed disruptions to their efficiency.
[¶ 28] The defendants’ allegation that Andrews’s letter had the potential to damage the DEP’s reputation is pure speculation and is easily distinguishable from cases where courts have granted qualified immunity upon a showing of actual damage to a department’s reputation with the general public. See, e.g., Bartlett v. Fisher, 972 F.2d 911, 917 (8th Cir.1992) (court presented with affidavit from police officer that described encounters with “belligerent” members of public as a result of fellow officer’s letter alleging a ticket-writing quota system). A conclusory assertion that a public employee’s otherwise protected speech may diminish his employer’s reputation, without any evidence that it has done so, does not, as a matter of law, sufficiently outweigh the employee’s right to speak on a matter of public concern. See Powell v. Basham, 921 F.2d 165, 168 (8th Cir.1990) (per curiam). Any speech that criticizes a governmental department necessarily has the potential to damage an *222 agency’s reputation, but surely this mere potential cannot be sufficient to support disciplinary action against an employee, for if it was, the Supreme Court would have upheld the school board’s dismissal of Pickering. 5
[¶29] Moreover, the defendants’ assertion that . Andrews’s letter threatened to interfere with the DEP’s regular operations by angering the Legislature, which in turn would set limits on the DEP’s responsibilities, aside from once again resting on speculation, is tenuous at best. In support of their contention, the defendants rely in part on the deposition of the president of the Maine Oil Dealers Association, Eugene Guilford. Guil-ford testified that he used the acrimonious meeting between the Knowltons and Andrews as an example to lobby the Legislature for restrictions on the DEP’s authority. Guilford’s and the Maine Oil Dealers Association’s attempt to limit the authority of the DEP was its standard practice, however, and had nothing to do with the publication of Andrews’s letter. Alan Prysunka, Andrews’s supervisor, expressed his concern that the letter would cause the issue of the DEP’s alleged shortcomings to remain in public focus. Even if Andrews’s letter resulted in legislative action adverse to the DEP’s interest, as alleged by the defendants, such legislative action cannot be characterized as the type of interference with the efficiency of the DEP that would outweigh an employee’s right to speak out on an issue of public importance.
[¶ 30] The law has been clearly established since the Supreme Court’s Pickering decision in 1968 that a public employee may not be disciplined for speaking out on a matter of public interest when that speech does no more than criticize generally his employer and does not directly interfere with the efficiency of the department for which he works. Because I believe that Andrews’s conduct and its effect on the DEP is virtually indistinguishable from the facts presented in Pickering , I conclude that the defendants are not entitled to qualified immunity, and I would allow Andrews’s section 1983 claim for damages to go forward.