By Mitchell Riese
The Ninth Circuit Court of Appeals recently clarified the rights that public employees have to not be retaliated against by a supervisor for testifying in a deposition in the context of a civil rights lawsuit. In the case of Karl v. City of Mountlake Terrace, Martha Karl filed suit against the City of Mountlake Terrace and Assistant Chief of Police Pete Caw. Karl was the Confidential Administrative Assistant to the Chief of Police. In 2008, she was subpoenaed to give deposition testimony in a federal civil rights lawsuit filed by former department Sgt. Jonathan Wender. Wender had brought a lawsuit claiming that he had been fired because of his outspoken criticism of the “war on drugs.” During her deposition, Karl testified that the chief and assistant chief disapproved of Wender’s comments to the press and his outspoken views on the need for drug policy reform, and that Caw had urged the Chief to terminate Wender. Karl also testified that Wender had a reputation for honesty, the chief had a reputation for being dishonest, and Caw had a reputation as a “smooth talker” and “back stabber.” After Karl’s deposition, Caw was allegedly overheard saying that the police department would have to find a way to the “get rid of her.”
Several months after her deposition, Caw told the new chief police, Greg Wilson that he had some concerns about Karl’s work performance. Shortly after that, Karl was involuntarily transferred to a different position and was placed under Caw’s direct supervision. She was subsequently warned that failing to meet certain performance targets would likely result in her termination, and one week later, Chief Wilson sent Karl home on administrative leave following a verbal altercation between Karl and another new record specialist. Only Karl was disciplined for the incident. While Karl was on leave, the Chief reviewed her records, spoke with Caw, and recommended to the city manager that Karl be terminated. Karl was subsequently terminated, and then filed suit claiming that she had been retaliated against for exercising her First Amendment right to free speech when she gave testimony at her deposition. The District Court ruled in a summary judgment that Karl had presented sufficient facts that would permit a jury to determine that retaliation had occurred. The City appealed that determination.
The Ninth Circuit reaffirmed that the First Amendment “shields public employees from employment retaliation for their protected speech activities.” The court found that Karl’s deposition testimony related to a matter of public concern. This was an important finding, because public employees are not entitled to First Amendment protection of their speech if the speech is not concerning a matter of “public concern.” Furthermore, the court found that Karl’s deposition testimony was given in her capacity as a private citizen. This is another important point, because a public employee’s speech is not protected by the First Amendment when it is made pursuant to the employee’s official job responsibilities. In this case, the court found that Karl’s testimony in the course of Wender’s lawsuit was not a part of her official job responsibilities.
Caw argued that he was entitled to immunity because he was only a subordinate supervisor, and had merely forwarded his evaluations of Karl’s job performance. The Ninth Circuit rejected this argument, and ruled that a subordinate officer who was not the final decision maker can still be liable, “if he sets in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” The court noted that there was substantial evidence in the record that Caw was motivated by retaliatory animus.
Finally, the court found that Caw was also not entitled to immunity because a reasonable official in his position would have known that it was unlawful to retaliate against an employee for providing subpoenaed deposition testimony in connection with a civil rights lawsuit alleging government misconduct, and that a reasonable official would also have known that a public employee’s speech on a matter of public concern is protected if the speech is not made pursuant to her official job duties, even if the testimony itself addresses matters of employment. . The court’s decision is an important affirmation of public employees rights to be free of retaliation for providing truthful testimony in a court proceeding.
