Holland Phillips Nov. 13, 2013, 3:35pm

NEW ORLEANS – The U.S. Court of Appeals for the Fifth Circuit recently submitted a decision on appeals from both plaintiff and defendant in connection to their retaliation claims.

The plaintiff in the case, Anthony Gibson, is a former police chief in Drew, Miss. He alleges that he was fired subsequent to his exposure of the mayor’s alleged misuse of the city's gasoline card for personal trips.

In 2008, an investigation found that Mayor Jeffery Kilpatrick had indeed used the card for personal purchases and was ordered to repay approximately $3,000 to the city.

Beginning nine months after the investigation, Kilpatrick made a total of nine documented reprimands of Gibson’s performance and also recommended that Gibson be terminated, according to background information in the case.

In addition to retaliation claims, Gibson filed several state tort law claims for violation of his First Amendment rights “and malicious interference with employment and intentional infliction of emotional distress.”

The defendant, Kilpatrick, in his individual capacity, applied a defense of qualified immunity against Gibson’s claims of retaliatory firing. The district court denied the motion, but ruled in favor of the defendant in terms of barring the plaintiff’s state tort law claims.

The appeals court convened to render judgment on the district court’s denial of the defendant’s qualified immunity and the district court’s dismissal of plaintiff’s tort claim for first amendment rights violations.

Gibson argued that his right of free speech, which was “clearly established” at the time of the incident. He also attempted to establish that he was speaking as a private citizen and not in his official capacity when he reported Kilpatrick, that the interest outweighed the defendant’s decision for efficiency and that his protected speech motivated the defendant’s behavior and/or retaliation.

Gibson’s cross-appeal was denied because the court determined he was acting in his official capacity as police chief when he reported Kilpatrick’s misuse of the gas card to various other law enforcement agencies.

Because the appeal was denied, the appeals court granted the defendant’s motion to dismiss the case based on his qualified immunity as mayor, stating that he had not acted in a knowingly unreasonable manner.

The case was heard by Circuit Judges Carolyn Dineen King, Edward C. Prado and Chief Judge Carl E. Stewart.

Case no. 12-60905.

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