The 7th U.S. Circuit Court of Appeals upheld a school superintendent’s $400,000 verdict against a school board for violating her First Amendment rights by taking adverse employment actions after she reported a board member who called and threatened her.
The plaintiff was superintendent of the Harvey public schools from July 2013 through June 2016. In the spring of 2015, the plaintiff asked the school board to approve a forensic audit of the district’s expenditures. The board allowed the plaintiff to ask auditing firms to propose the scope and cost of work in a request for proposals.
On the afternoon of July 9, a board member called the plaintiff on her district-issued cell phone and said that the plaintiff was “itching for an a– kicking.” Someone called the police about the incident, and a detective met with the plaintiff in her office on July 10 to discuss the incident report. The plaintiff discussed the subject with the board’s president and later filed a formal complaint with the police.
Another board member—the wife of the board member who had threatened the plaintiff—came to the plaintiff’s office on July 10 and stated that she had some concerns about the plaintiff’s performance as superintendent. By the time of the board’s July 22 meeting, relations between the plaintiff and the board had soured, and an extension of the plaintiff’s three-year contract was off the table.
In December 2015, the plaintiff suspended the district’s business manager for financial irregularities. That further aggravated the board and, later that month, the board served the plaintiff with a notice that her contract would not be renewed. Although it did not fire her, the board began to bypass the plaintiff’s direction whenever possible.
The board told state education officials in spring 2016 that the plaintiff was no longer superintendent. These and related events purportedly put the plaintiff under a lot of stress. She took medical leave in March 2016 and never returned to work.
The plaintiff filed suit under 42 U.S.C. §1983, claiming that the board and its members had violated the plaintiff’s First Amendment rights. At trial, the jury awarded her a verdict of $400,000. The district court declined to set aside that award and added $190,000 in attorney fees. Both sides appealed.
On appeal, the board argued that the plaintiff’s report to the police was a personal grievance, not a matter of public concern, and therefore fell outside the scope of the First Amendment. A personal grievance under state law does not rise to the level of a protected disclosure under the First Amendment.
The 7th Circuit, however, held that the nature of the plaintiff’s complaint involved a legitimate matter of public concern. Her report disclosed that she had been threatened with violence by an elected official. The constituents of the board could be influenced by news that one of their representatives proposed to substitute violence for the normal process of voting. A potential for physical altercations between public officials also implies that an important public institution is not functioning properly. In addition, the interaction began with the plaintiff’s concerns regarding financial dealings of the district, which implicated public policy as well.
The appeals court noted that the board may have had an argument that the plaintiff’s communications involved her public duties and those of the board in managing its employees. Such communications in performing public duties typically do not give rise to a First Amendment claim. However, the board failed to make this argument in its opening appeal brief, and only made a passing mention of it in its reply brief, effectively waiving the argument.
The plaintiff appealed the amount of her attorney fees, arguing that her attorney should have received an hourly rate enhancement and worked more hours than the district court recognized. The 7th Circuit found that the district court reasonably criticized the attorney fee records and did not abuse discretion in declining to award higher fees.
As a result, the 7th Circuit rejected the arguments on appeal and upheld the plaintiff’s $400,000 jury verdict.
Adams v. Board of Education of Harvey School District 152, 7th Cir., Nos. 19-2534 & 19-3269 (Aug. 3, 2020).
Professional Pointer: Public employers face higher scrutiny and legal liability in reacting to employee statements. They should take great care before seeking to punish an employee for making a statement that has a public-interest motive or may qualify as a matter of public concern.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.