July 18, 2019

Aaron Solomon: First Amendment Retaliation in the Context of an Employment Dispute

Editor’s Note: The Tenth Circuit issued its opinion in Morris v. City of Colorado Springs on January 18, 2012.

In Morris v. City of Colorado Springs (No. 10-1572), the Tenth Circuit, among other things, affirmed the dismissal of the plaintiff’s First Amendment retaliation claim on the pleadings. The plaintiff was a nurse who worked for Colorado Spring’s Memorial Health System, which is run by the city. The plaintiff submitted a “Notice of Claim” to Memorial, alleging that she has been subject to various torts while a member of the heart surgery team. Shortly thereafter, she was reassigned away from the heart team. The plaintiff alleged that this reassignment constituted improper retaliation, and she also brought Title VII claims based on the underlying conduct.

The Tenth Circuit thoroughly reviewed the test for a First Amendment retaliation claim and concluded, like the district court, that the plaintiff “could not show that her notice contained speech on a matter of public concern.” In so doing, it appeared to hold that a communication “framed as lodging a complaint regarding an employment dispute and seeking damages for it” could never rise to the level of a matter of public concern, unless the subject matter fell within a “narrow range”, such as allegations of corruption by city officials, that was “so imbued with the public interest that speech regarding g it will almost always be a matter of public concern.”

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on January 19, 2012.
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