Virginia Business Litigation Lawyer Blog

The First Amendment protects a public employee from retaliation by his or her employer when the employee speaks out on a matter of public concern. But before discharged government employees go rushing into court to sue the government entity for which they worked, they would be well advised to take advantage of any and all internal grievance processes offered by the government. A recent case decided by Judge Samuel G. Wilson of the Western District of Virginia demonstrates the potential perils of skipping this important step.

In Stickley v. Sutherly, the court laid out current jurisprudence as it applies to a public employer's liability under 42 U.S.C. § 1983. (Section 1983 is a federal statute that creates liability for any local government or government officials who violate a person's clearly-established constitutional rights, such as freedom of speech). Stickley was a police lieutenant in Strasburg, Virginia. Sutherly, the chief of police, demoted Stickley and another officer for violations of department policy. Shortly thereafter, the Northern Virginia Daily (a local newspaper) published an article criticizing Sutherly's personnel practices. Prompted by the article, a member of Strasburg's Town Council asked Stickley about his demotion, and Stickley expressed his dissatisfaction about it. After the councilman confronted Sutherly about Stickley's demotion, Sutherly fired Stickley for insubordination.

Stickley, instead of pursuing the town's official grievance process, filed suit against Sutherly and the Town of Strasburg. Stickley argued that his firing was in retaliation for his exercise of his First Amendment right to speak freely about matters of public concern; namely, the personnel practices of the police department.

With regard to Stickley's complaint against the town of Strasburg, Judge Wilson explained that a municipality may be liable under Section 1983 if the violation of a constitutional right occurred as a direct result of official municipal policy or custom, but that qualified immunity would shield a municipality from such charges if a terminated employee fails to exhaust local appeal procedures available to him. Because Sutherly's decision could have been overturned through an internal appeal process, Sutherly was not a final policy-maker.

Ultimately, because no source of liability under § 1983 could be found against either Sutherly or the Town of Strasburg, the Court dismissed Stickley's suit. The lesson to be learned here is be sure to exhaust all avenues of redress provided by your employer before looking to the courts to protect your rights, especially if you work (or worked) for the government.

A couple from Culpeper, Virginia, has sued the Culpeper Police Department for alleged inappropriate behavior upon discovering sexually explicit photographs on a cell phone.  According to the lawsuit, the police arrested Nathan Newhard in March 2008 for DUI and possession of a firearm, and confiscated his cell phone.  Upon inspecting the phone, a town police officer discovered sexually explicit photographs of his girlfriend.  The officer then used the police radio system to announce the availability of the pictures to any interested police officer and several officers viewed the photographs.  Shortly thereafter, Mr. Newhard claims, the police notified his employer, the County of Culpeper School System, that Mr. Newhard had nude photos on his cell phone.  The school told him he would not be recommended for another term, and he resigned.  

Mr. Newhard describes the litigation as a case brought to remedy "egregious and unconscionable violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution" and asserts counts for "deliberate indifference," "right to privacy," "outrageous conduct," defamation, intentional infliction of emotional distress, and failure to train.

It will be interesting to see which claims stick.  I stongly doubt the alleged facts state a valid claim for defamation (which requires a showing of falsity) or intentional infliction of emotional distress (which generally requires more extreme conduct than that alleged, as well as more severe emotional injuries).  A claim that appears to be missing is tortious interference with contractual relations.  If what Mr. Newhard is claiming is true, and a police officer showed a nude picture of his girlfriend to his employer for the purpose of getting him fired, that is the sort of behavior that would likely support a tortious interference claim.

With the increasing popularity of "sexting" (the practice of attaching sexually explicit photos in text messages sent between phones) and the debate surrounding its legality, it will also be interesting to see whether the alleged behavior by the Culpeper Police Department amounts to a deprivation of contstitutional rights as alleged in the Complaint.  More about sexting in the clip below.