Rachel Anderson’s Legal Team Counters City’s Response, Alleging False Statements

JONESBORO, Ark. – An intriguing response to the City of Jonesboro’s position on the preliminary injunction has been filed by Rachel Anderson’s legal team in her case against the city, its mayor and police chief.

Filed on Friday afternoon, the plaintiff’s reply in support of the motion for preliminary injunction is an interesting, straight-forward rebuttal to the city’s reasoning for why Anderson doesn’t deserve a name-clearing hearing.

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The reply begins by alleging the mayor made false statements in his response to the lawsuit. It states that the claim Anderson did not request a name-clearing hearing is demonstrably false, because she requested a name-clearing hearing in this exact case.

Anderson’s lawyers also counter the defendants’ argument that there was no publication of false allegations against her because her termination letter was released pursuant to a FOIA request. Firstly, Anderson argues that the city issued a press release on November 21 stating she was insubordinate. They did. We published it here. Second, the plaintiff argues that placing false allegations in a personnel file is sufficient to satisfy the element of publication.

“Defendants were well aware this was a high profile situation and would likely be scrutinized. Why else include information in the termination letter that accused her of misuse of public property, even though they knew she had been cleared of that?”

The plaintiff also rebukes the argument that Anderson was not stigmatized by the dismissal. The city had argued that the public support Anderson has receive is proof they haven’t negatively stigmatized her. Anderson’s legal team says if she seeks to develop her career further, in any area involving law enforcement, she will be subject to a background check where the letter containing false allegations are contained.

“Prospective employers may not know her the way the community in Jonesboro does,” argued Sutter & Gillham.

Many other elements of the city’s argument are taken to task by Sutter & Gillham. Below the line is the full reply from Anderson’s lawyers.

REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Come the Plaintiff, RACHEL ANDERSON, by and through counsel, SUTTER & GILLHAM, P.L.L.C.; and, for her Motion for a Preliminary Injunction, she states:

1. The Mayor’s Response to the Motion for a Preliminary Injunction raises questions, such as: What is the Mayor afraid of? Why not just give Ms. Anderson a hearing? Why are there false statements in his Response?
2. Seven pages in, the Mayor makes his first substantive argument: “Initially, Plaintiff’s claim fails because there is no evidence that she requested a name-clearing hearing prior to filing her lawsuit.” R. Mot. PIJ, p. 7. The problem is that Ms. Anderson’s Complaint is a verified affidavit. Sworn testimony is evidence. The Complaint states: “Plaintiff demanded a name-clearing hearing, but Defendants refused to grant her a name-clearing hearing.” Cplt., para. 15, see also para. 16-18. So the Mayor’s first, and presumably what he considers to be his best, argument is provably false. Furthermore, Defendant has submitted no evidence to the contrary in his response.
3. Defendants wrongly argue there was no publication because the termination letter was released pursuant to an FOIA request. Two problems with this. First, Defendants’ own Exhibit 3 features the statements of Elliott. They also put out a press release on 11/21/23, stating that she was insubordinate. Second, they are just wrong – placing false allegations in a personnel file is sufficient to satisfy the element of publication. Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 631 (2d Cir. 1996); Brandt v. Board of Coop. Educ. Servs., 820 F.2d 41, 45 (2d Cir. 1987); Velger v. Cawley, 525 F.2d 334, 336 (2d Cir. 1975), rev’d on other grounds sub nom. Codd v. Velger, 429 U.S. 624, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977). We have recognized, in fact, that this is the very action that circulates the stigmatization. Valmonte v. Bane, 18 F.3d 992, 1000 (2d Cir. 1994). In Rosenstein v. Dallas, 876 F.2d 392, 396 n.6 (5th Cir. 1989), the Fifth Circuit stated: “An employee may prove that the government agency is likely to make the charges public or that information about the charges is available to the public, although not publicized by the government. See Wells, 736 F.2d at 256. There will be no liability, however, if the agency has carefully kept the charges confidential and the plaintiff caused them to be made public. Campos, 743 F.2d at 1126.” Defendants were well aware this was a high profile situation and would likely be scrutinized. Why else include information in the termination letter that accused her of misuse of public property, even though they knew she had been cleared of that?
4. Defendants argue the statements were not bad enough to be stigmatizing. Yet in Defendant’s own Exhibit 3, he stated that “she made misrepresentations” and that “her comments . . . are not true.” He goes on to state that she was acting “intentionally”, and this alleged misconduct was “conscious”, another word for intentional. Elliott also said she was insubordinate, which as a police officer goes to her professional reputation. Defendant’s own Response states that: “This stigma may be established where the employee is accused of actions involving “dishonesty, immorality, criminality, [and] racism . . . .” Id. Rsp., p. 9. Accordingly, they have accused her of dishonesty, which they admit is stigmatizing. Elliott accused her of betraying them. A name clearing is appropriate where comments are about the employee’s “good name, reputation, honor or integrity.” Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 573 (1972); J. Michael McGuinness, Litigating Public Employee Procedural Due Process Claims, 715 PLI/LIT 489, 503 (2004). All those statements damage her good name, reputation, honor, and integrity. Furthermore, by virtue of their subsequent statements, Defendants have essentially affirmed everything in the letter, which is clearly defamatory.
5. Defendants argue that there is nothing false in their statements that there were complaints about misuse of a take-home unit and her actions undermining the trust and confidence the city has in her current position, and that Plaintiff has not denied them. First, Plaintiff has submitted a verified complaint, swearing to the truth of its allegations. At paragraph 8 she states that the termination letter “falsely mentioned recent allegations of misuse of her take-home unit, although she had already been cleared of the latter following an internal investigation. The City’s own documents stated that she was exonerated.” Cplt, para. 8. Furthermore, the Complaint clearly indicates that she spoke in a well-informed, respectful, appropriate fashion, and told the truth, violating no policies or procedures, meaning she had done nothing to undermine trust or confidence in her. Rather, they were upset she opposed them. Cplt., para. 2-18. Right now, the only proof on these issues is on Plaintiff’s side of it because Defendants have no evidence. For instance, why have they not produced these alleged complaints about the take-home vehicle? Who made them? When? What did they say? Why don’t they produce the part where she was exonerated.
6. Defendant argues that because she had support in the community she has not been stigmatized. However, the fact that she has public support merely goes to damages. On liability, she has to prove: (1) an official made a defamatory statement that resulted in a stigma; (2) the defamatory statement occurred during the course of terminating the employee; (3) the defamatory statement was made public; and (4) the legal status of the plaintiff was altered or extinguished.” Singer v. Harris, (E.D.Ark. 2015). The issue is whether or not a statement was made that was stigmatizing, not whether or not some members of the public support her. If Ms. Anderson seeks to develop her career further, in any area involving law enforcement, she will be background checked. This letter will be found and these allegations will be in her record. Prospective employers may not know her the way the community in Jonesboro does. Their support does not mean these false allegations will not cost her down the line. If Plaintiff seeks a job elsewhere, she should have to opportunity to address these allegations.
7. Once again, what are the mayor and chief afraid of? Why not give her a hearing?

WHEREFORE, Plaintiff, RACHEL ANDERSON, prays for an Order granting her Motion for a Preliminary Injunction and requiring Defendants to provide her with a name-clearing hearing before the City Council, with the right to testify and to call and cross-examine witnesses, including the Mayor, the Chief, and Bill Campbell; and, for all other proper relief.