U.S. Judge Dismisses Free Speech/Free Press Claim

The Selection Officer for the SSA says one reason he didn’t hire the plaintiff (me) is because she (I) wrote an employment law blog on workplace abuse.

Chief U.S. District Judge Miranda Du of Nevada this week dismissed a claim in a lawsuit that I filed against the Social Security Administration (SSA), after it rejected me for a job for which I was superbly qualified in the aftermath of the Great Recession (2011).

A novice SSA Selection Officer said one reason he didn’t select me for hire was because he thought my fledgling employment law blog, When the Abuser Goes to Work, was a “red flag” and he was concerned I might one day question his management skills.

I began the blog as a public service in connection with my book, Surviving Bullies, Queen Bees & Psychopaths in the Workplace. The blog, syndicated by Newstek, is legally and unquestionably a work of journalism.

The shocking age discrimination I experienced when I applied for the SSA job in Reno, NV, in the waning days of the Great Recession, prompted me to research age discrimination and write my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace.

A few tibits – 26 applicants (all but one under the age of 40) responded to a ridiculously narrow recruitment for five attorney vacancies. I found out about the vacancies by chance when I saw an announcement on USAJobs for a different job at the Reno office. The SSA repeatedly tried to hire five candidates under the age of 40 but was thwarted when candidates rejected job offers. The ninth selectee was the only other candidate over the age of 40 (a 47-year-old male).

The SSA says the candidates were hired based on “personality” and “cultural fit.”

In 2019, Judge Du dismissed the entire case, calling it futile, and issued her ruling with prejudice (barring me from refiling the case).

The Ninth Circuit

I filed an appeal with the Ninth Circuit Court of Appeals in San Francisco, which in 2021 reinstated my claim of systemic age discrimination, finding it “plausible,” and remanded the case back to Judge Du.

The Ninth Circuit, however, dismissed my claims that the SSA retaliated against me for engaging in “oppositional activity” in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The oppositional clause prohibits employers from retaliating against job applicants because they oppose or contest unlawful employment practices. The Ninth Circuit said my blog didn’t qualify as oppositional activity because it did not specifically oppose discrimination by the SSA.

The Ninth Circuit’s ruling left me with no choice but to file a First Amendment complaint against the Selection Officer.

In light of Judge Du’s dismissal of the First Amendment claim, I now have no recourse for what many would consider to be a patently obvious violation of the U.S. Constitutional guarantees of freedom of speech and freedom of the press. And, of course, this ruling doesn’t just affect me.

An Innocent Motive

So here’s why Judge Du dismissed my First Amendment retaliation claim.

She said the Selection Officer was acting in his official capacity and then expressed concern that hordes of disappointed job seekers might file First Amendment claims.

Then she wrote in her decision that the Selection Officer had an “innocent motive” for not hiring me.

Initially the Selection Officer said he didn’t hire me because I was not sufficiently “enthusiastic” about the job, despite contrary evidence. I went to far greater lengths to discover and apply for the position than any other applicant. I repeatedly said I was enthusiastic about the job.

According to Judge Du: “[H]e felt she was not sufficiently enthusiastic about the position. This alone is an innocent motive and raises doubt that [the Selection Officer] retaliated against Barnes by not hiring her, solely on the basis that she exercised her right to protected speech.”

Tuesday was World Press Freedom Day but what is freedom when federal courts refuse to enforce the U.S. Constitution on behalf of journalists and anyone else who writes about topics, including worker rights, that make federal bureaucrats uncomfortable.