By AuxBeacon News Contributor

Employment Retaliation – A defense verdict from 2002 was reversed on an instruction error – tried again nearly four years later, the verdict was again for the defendant.

For many years, Brian M. Campbell was a volunteer employee of the Civil Air Patrol (CAP). It is a civilian adjunct to the Air Force, operating as a non-profit. While it uses more than 50,000 volunteers, CAP only has 200 or so full-time employees. In 1997, Campbell started full-time as a Cadet Registrar.

The following May, there was trouble at CAP, Lori Swanson complaining of sexual harassment. It led to litigation. In response to the lawsuit, CAP sought to limit discussion of the
topic. Paul Albano, CAP’s director, ordered that employees refrain from discussing the lawsuit.

That August, a male employee made comments about the lawsuit. They tended to support CAP’s position in the litigation. In response and consistent with the no-talking policy, the
employee was fired.

On 10-12-98, Campbell tested the policy sending a scathing e-mail across CAP’s intranet. Potentially, it was received by as many as 50,000 people. In this e-mail, Campbell was highly critical of CAP, supporting Swanson’s allegations of sexual harassment, calling CAP management despotic.

The next day, Paul Brooks, the assistant director of CAP, called in Campbell to discuss the e-mail. Campbell confirmed he was the author. Three days later, he was out of work, Albano and Brooks making the decision to fire him due to the violation of the aforementioned policy.

In response, Campbell filed a lawsuit against CAP, alleging a variety of civil rights counts. Only one survived to trial, a Title VII violation predicated on CAP opposing his right to oppose unlawful activity, here the purported sexual harassment. As CAP was not a state actor, it prevailed on other counts. Also sued was the Air Force, which was dismissed via summary judgment, playing no role in CAP’s employment process.

CAP defended the merits and argued the firing was speech neutral. Namely, Campbell lost his job because he discussed the litigation in any form, a violation of the rule. The best evidence for CAP was that another employee was fired for violating the same policy, even though his comments supported CAP. Plaintiff took a different tack, that his firing was because of the content, opposing his employer’s unlawful practice.

This case first came to trial in August of 2002. The jury concluded that the Civil Air Patrol had retaliated, but exculpated it finding that it would have taken the same action anyway. Campbell appealed. The 11th Circuit reversed in July of 2003 – it concluded it was error to give a mixed-motive instruction as the Civil Air Patrol conceded Campbell was fired because of the e-mail.

Back to Montgomery, Judge Ira DeMent, who presided in the first trial, entered a judgment for the Civil Air Patrol. The court concluded the appellate issue was not preserved, Campbell having failed to raise it in a post-trial motion.

Campbell appealed again. DeMent was reversed for the second time. The 11th Circuit explained that DeMent was not free to ignore its holding writing that the matter was properly raised and/or that the Civil Air Patrol waived the matter.

The verdict was for the Civil Air Patrol, the jury rejecting the retaliation count. Interestingly, the court gave the jury a mixed motive charge. [This was the same issue upon which the 11th Circuit had reversed, although the jury did not reach it, finding there was no retaliation]

Pending is Campbell’s JNOV motion that has noted that as the first verdict decided retaliation, the matter did not need to be re-litigated. In a bare bones order, Strom denied the motion.

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