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A former corporation counsel for the city of Gary, Ind. did not violate free speech rights of two employees or retaliate against them over statements made against a supervisor, including a charge of racism, a federal appeals court ruled. In an opinion released last week, the 7th U.S. Circuit Court of Appeals upheld the ruling of a magistrate judge with the U.S. District Court in Hammond that statements made by Cynthia Taylor and Rebecca Smith, a lawyer and a paralegal respectively in the office, were internal personnel matters not protected by the First Amendment. “None of the statements was offered as a political view about what legal policies the City of Gary should adopt, or even as a view about the City’s organizational structure,” the opinion said. Taylor and Smith filed a 1996 lawsuit against then-Corporation Counsel Hamilton Carmouche, then-City Attorney Margaret Felton and the city over claims of retaliation against them for statements that Felton was a racist and grievances they filed over how the office was operated. Taylor, Smith, Carmouche and Felton are no longer working for the city. Cynthia Taylor and Rebecca Smith, v. Hamilton Carmouche, Margaret Felton and the City of Gary, No. 99-3117. The allegation of retaliation stems from Carmouche becoming upset that Taylor and Smith had gone over his head to the city’s mayor and deputy mayor with complaints over how the city’s law department was run, the opinion said. Ostensibly, Carmouche “retaliated” forcing Taylor to undergo extraordinary steps to return to work from a subsequent maternity leave. But, U.S. Magistrate Judge Andrew P. Rodovich followed case law that municipalities, such as Gary, could not be held vicariously liable in litigation; and granted summary judgment in favor of Carmouche and Felton over the allegations of retaliating against Taylor and Smith. In the opinion written by Judge Frank H. Easterbrook with concurrence by Judge John L. Coffey, the court relied upon the U.S. Supreme Court ruling of Connick v. Myers, 461 U.S. 138 (1983). Under that controlling case, the statements Taylor and Smith made were not of public concern and were made within the context of the office hierarchy and were not deemed under the protection of the First Amendment. The majority opinion also found that Carmouche did not retaliate against Taylor for her statements by requiring her to provide medical clearance to continue working for the office after returning from maternity leave. According to the court, it was standard procedure in the city government to require evidence they are fit to continue their job. “Carmouche did no more than enforce this rule . . . (and) enforcing a policy applicable to all employees cannot reasonably be described as a penalty for speech,” the opinion said. But in a dissenting opinion, Judge Ann C. Williams believed that the charges of racism against Felton by the two employees was of public concern and constitutionally protected. “There is no indication in the record that their protests were restricted to their individual concerns; rather, it appears that they were speaking out on behalf of the entire office,” Williams wrote. “In light of these facts, I cannot conclude that the plaintiffs’ protests regarding racism in the City’s Law Department were simple workplace grievances that do not address matters of public concern.”

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