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The 11th U.S. Circuit Court of Appeals on Wednesday revived a suit by two former Fulton County, Ga., employees who claimed they were harassed into quitting their jobs after they acted as whistleblowers. Janice Akins and Debra Blount asserted that John Gates, former director of the Fulton County Purchasing Department, retaliated against them because in August 1998 they reported irregularities with bids and contracts to Fulton County Commissioner Emma I. Darnell. Akins and Blount claimed that after meeting with Darnell, other employees were ordered not to speak to them and that for 1� months they essentially were stripped of their duties. Akins v. Fulton County, No. 04-11888. U.S. District Judge Julie E. Carnes granted summary judgment for Gates, but the 11th Circuit on Wednesday reversed, concluding that a jury should hear Akins’ and Blount’s claims. David C. Ates, an attorney for Akins and Blount, said the case will interest jurors who believe that government employees should be free to speak up when they see problems of public interest. “I think that’s what caught the panel’s attention as well,” Ates said. “I think they saw this as a case that needed to be righted. It needed to go to a jury. People in these situations need protection.” Gates, who does not currently work for the county purchasing department, could not be reached for comment. Fulton County Attorney Overtis Hicks Brantley also could not be reached for comment. Fulton claimed in its appeals brief that when Akins and Blount met with the county commissioner, they were less interested in exercising their First Amendment right to expose government misconduct than in airing personal complaints against their boss. If Akins and Blount were griping instead of whistleblowing, then a First Amendment violation may not have occurred. ‘THE LINE HAS BEEN DRAWN’ Akins, Blount and some of their co-workers in the purchasing department asked to meet with Darnell in 1998, according to the opinion, written by 11th Circuit Judge Charles R. Wilson. Akins and Blount told Darnell about bids for six projects that violated county code or purchasing policy, according to the plaintiffs’ appeals brief. The contracts included one for ambulance service and another for a criminal-justice information system. The FBI later interviewed Akins and Blount about the problems, Ates said, as part of a public corruption investigation. Akins and Blount acknowledged they previously had problems with Gates’ decisions and management style, but said that problems intensified after Gates learned of the meeting with Darnell. Blount said she heard him yelling “the line has been drawn in the sand between the North and the South and to be careful what side you choose because one will lose,” according to the plaintiffs’ appeals brief. Akins and Blount said they were accused of sabotaging bids, other employees were ordered not to speak to them, and the women were told a proposed reorganization would eliminate their jobs, according to the 11th Circuit ruling. At one point, they were forced to turn over all of their bid files, and for the next 1� months, they were given no work to do. “He had taken all the files away and essentially wouldn’t let them do their jobs,” Ates said. Both women resigned within 10 months of meeting with the county commissioner, according to the appeals ruling. Akins and Blount sued the county and their supervisors in 2000, but Carnes granted summary judgment for the defense in 2003. Carnes ruled that qualified immunity shielded the defendants, saying the law was not clearly established about how supervisors may treat government employees who act as whistleblowers. IMMUNITY CAME TOO EASY The 11th Circuit panel rejected Carnes’ reasoning. Wilson cited Hope v. Pelzer, 536 U.S. 730 (2002), in which the U.S. Supreme Court said in a prison abuse case that the 11th Circuit too easily granted qualified immunity to government employees whose conduct — however questionable — had not been specifically found to violate the Constitution. Wilson wrote that Gates had discretion to discipline his employees, but a supervisor’s discretion doesn’t extend to violating the constitutional right to free speech by creating a workplace so intolerable that the employees face no choice but to quit. “The Supreme Court has recognized that the Constitution protects speech regarding governmental misconduct because it ‘lies near the core of the First Amendment,’” wrote Wilson, who was joined by Judge Susan H. Black and U.S. District Senior Judge John F. Nangle of the Eastern District of Missouri, sitting by designation. Wilson said the 10-month span between the plaintiffs’ meeting with the commissioner and their resignations was close enough “to suggest a causal relationship.” “Based on this relationship, a reasonable factfinder could conclude that Gates took these actions on account of plaintiffs’ speech.” Fulton’s appeals brief contended that it was difficult to discern whether First Amendment protection could apply to the meeting with the county commissioner, because so much of the meeting related to Akins’ and Blount’s personal complaints instead of government misconduct. Black issued a brief concurrence to underscore this issue. “I would like to emphasize that there is a disputed question of fact,” Black wrote, “as to whether the ‘main thrust’ of the … meeting was to discuss bidding irregularities, as Plaintiffs allege, or general work environment concerns, as Commissioner Darnell claims. This issue is best resolved by a jury, and not on a motion for summary judgment.”

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