Suit against Agency on Aging can continue

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The US Court of Appeals for the Sixth Circuit on Monday reversed a district court's grant of summary judgment and dismissal to Michigan's Region VII Area Agency on Aging, instead ruling that an unlawful termination suit filed by former employee Denise Hughes can continue. Hughes argues that the agency fired her because of statements she made to a local newspaper regarding sexual harassment allegations made against the agency's executive director, in violation of the First Amendment. Region VII had argued that, because it was not a government entity, it was immune from the suit brought under a statute targeting government action, and that Hughes' statements were not protected because they were not regarding issues of "public concern." The Sixth Circuit rejected those arguments, holding that even though the agency was a private non-profit, because of "pervasive entwinement of governmental entities and representatives in the supervision and management of Region VII" the agency was effectively acting as an arm of government and could be sued under the statute. The court also found that Hughes' statements to the reporter were protected because of the public interest in the governance of the agency:
The evidence in this case shows that a newspaper reporter specifically sought out Hughes as a source regarding allegations of sexual harassment against the executive director of Region VII, an area agency on aging that is responsible for distributing a substantial amount of funds entrusted to the agency by the State of Michigan and the federal government. Further, the reporter testified in his deposition that, while Hughes was still an employee of Region VII, the reporter confirmed to King, the executive director, that Hughes was serving as a source for the reporter’s critical articles regarding Region VII. In light of this evidence and the case law, we conclude that Hughes, in speaking to a reporter about allegations of sexual harassment against a public official, engaged in a constitutionally protected activity.
The Sixth Circuit went on to find that Hughes' statements were not made in connection with her official duties and were thus eligible for protection under the public concern exception.

In May 2006, the US Supreme Court held that First Amendment protections do not extend to government employees for comments made while performing their official duties, even when the employee is acting to expose alleged government wrongdoing. In that case, an employee in the Los Angeles District Attorney's office argued that the content of a memorandum, in which he alleged that a sheriff had lied in a search warrant affidavit, should be protected because the issue was a matter of public concern, but the court disagreed.

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