University officials not entitled to qualified immunity after terminating employee who insulted U.S. Representative

Cutler v. Stephen F. Austin State University, et al No. 13-40685 (5th Circ. September 15, 2014)

This is a First Amendment, employment retaliation case where the U.S. 5th Circuit Court of Appeals affirmed the denial of qualified immunity of University officials.

Cutler alleges he was fired from his position as Director of the University’s art galleries after he told a member of U.S. Representative Louie Gohmert’s staff that he believed Rep. Gohmert was a “fear monger.” Cutler was asked by Gohmert’s office to curate and judge a high school art exhibition. Cutler had a negative impression of Gohmert and declined the offer. When University officials discovered Cutler’s comments and rejection, they terminated him. Cutler sued the University and the officials involved in his termination alleging he was acting as a citizen when he criticized Gohmert and they violated his First Amendment rights by retaliating. The individual defendants filed a motion for summary judgment asserting qualified immunity, but the motion was denied. The individual defendants took this interlocutory appeal.

The court first determined that it could not hear the “final-decision maker” defense because it is an immunity from liability, not from suit and is not based in qualified immunity. However, the qualified immunity defense is an immunity from suit and could be heard interlocutory. The court then determined that pre-2010 case law (which applied to whether the constitutional right was clearly established) gave the officials clear warning that Cutler had a First Amendment right to criticize a U.S. representative in a manner outside his employment duties. The University’s investigation into the incident was not reasonable and de minimus with a possible pre-determined outcome (at least  fact questions exists for such).  One official recommended termination before anyone ever spoke to Cutler or got his side of the story. It was “woefully inadequate” and not conducted in good faith. As a result, based on the status of the case now, the individual defendants are not entitled to qualified immunity.  The court made a point to hold that at trial, the jury may resolve the credibility issues in favor of the officials and they may yet be entitled to qualified immunity.  However, as the record stands, fact questions exists precluding summary judgment.

If you would like to read this opinion click here.  Panel: DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. Opinion by Justice Prado.   The attorney listed for the university is Timothy Borne Garrigan.  The attorney listed for Cutler is James Carlton Todd.