Lamb believed a jury could find that he would not have been fired but for the text message. He subsequently alleged violations of his rights under the First Amendment, the Colorado Anti-Discrimination Act, and the federal employment discrimination law known as Title VII. Lamb reportedly sought to “expose the pervasive culture of racism in the Sheriff’s Office and to seek redress for his unlawful termination” with his civil rights lawsuit.
However, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit found a lower court was correct to dismiss Lamb’s claims because his text message was merely a “general statement” that did not show him opposing discrimination in a way that would have been protected from retaliation.
“Lamb’s private text message to a friend — vaguely alleging racism and a lack of professionalism at the MCSO — did not oppose an employment practice made unlawful by Title VII and therefore was not protected activity,” wrote Judge Nancy L. Moritz in the panel’s Feb. 17 order.
The 10th Circuit also decided that Lamb had not opined on a matter of public concern, meaning his First Amendment protections as a government employee had not kicked in. Damon Davis, one of Lamb’s attorneys, registered his disappointment with the court’s conclusions.
“It is our belief that any allegation of racism and lack of professionalism in policing is a matter of public concern, especially in light of events over the last few years,” Davis said. “Once the concern is raised, people can then look into the specifics of the matter and effectuate change.”
Iris Halpern, a civil rights lawyer who reviewed the decision, emphasized that retaliation is still unlawful, but that workers who are concerned about harassment or discrimination should communicate their concerns to their employer or to government organizations charged with enforcing anti-discrimination laws.
“If you do wish to communicate privately first, be explicit about what you find to be the discriminatory or harassing misconduct, and make clear you think these practices are wrong and should be put to an end,” she added.
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