A Montrose County deputy’s text message complaining about racism and unprofessional conduct in the sheriff’s office was neither specific enough nor sufficiently in the public’s interest to shield him from retaliation, the federal appeals court based in Denver decided on Thursday.

Brad Lamb, who the Montrose County Sheriff’s Office terminated in September 2015, believed he had engaged in activity protected from retaliation. At the center of his appeal was a text message he sent to a friend in a different law enforcement agency that his employer eventually found out about.

“Just wanted to stay in touch. REALLY big mistake coming to work here,” Lamb texted on Dec. 23, 2014. “Racism, good Ole boy, no professionalism. Let me know if you and Angie are still up for poker.”

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.

Lamb had worked in law enforcement since 2005, ending up at the Montrose County Sheriff’s Office in September 2014. He allegedly observed a “culture of racism” at the office, specifically one deputy who repeatedly expressed anti-Hispanic views and used the N-word. Lamb reportedly confronted a sergeant about the racism he observed, but the sergeant responded, “Up until now there wasn’t anyone that was really offended.”

Then, Lamb sent the text message.

The sheriff’s office initiated an internal affairs investigation after word of the text message reached the office. As part of the investigation, Lamb detailed the racist remarks he heard in the workplace and claimed the situation constituted a hostile work environment. The deputy who Lamb accused of racism, Steven Collins, acknowledged to the investigator that he used the N-word.

According to his lawsuit, the sheriff’s office determined Lamb’s text message amounted to “unbecoming conduct and public statements.”

In the subsequent months, Lamb received additional reprimands for mishandling a suicide-related call, not properly formatting a report and failing to have another deputy review an affidavit. Eventually, three supervisors made the recommendation to Sheriff Rick Dunlap that he terminate Lamb’s employment, which he did on Sept. 15, 2015.

“You were found to have sustained violations of Montrose County Sheriff’s Office General Orders, insubordination and unsatisfactory performance,” Lamb’s disciplinary report noted. The sheriff’s office maintained in court that Dunlap would have fired Lamb even if he never sent the text message, as Lamb had proven he was “not going to be a team player that the other officers could trust.”

In 2019, U.S. District Court Judge Raymond P. Moore concluded that Lamb’s disciplinary record did, in fact, provide a sufficient reason for the office to terminate him. As for the text message, protection from retaliation under Title VII required that Lamb oppose an unlawful employment practice.

“Although Plaintiff’s text message could be construed as expressing disapproval of racism in a general sense,” Moore noted, “free-floating ‘racism,’ untethered to specific conduct or a specific policy, is not an unlawful employment practice.”

Lamb appealed to the 10th Circuit, challenging Moore’s findings on the Title VII claim. Lamb also disagreed with Moore’s analysis that the text message implicated a matter of public concern, but that it was still not a substantial factor motivating his termination.

The 10th Circuit’s panel was not convinced, however, that the text message even rose to the level of public concern.

“Our case law requires that, in fact, the speaker has the intention of this being aimed at some broader purpose than personal griping over the fact that he doesn’t like racism in his environment,” said Judge Jerome A. Holmes during oral arguments.

“People talk about their employment every day with their friends and they say things about a hostile work environment,” Moritz added. “Why does that make it protected?”

The panel ultimately agreed with Moore that Lamb’s text was only a “general statement about the alleged existence of racism” that was not specific enough to be protected under Title VII. Because his comments as a government employee did not amount to a matter of public concern, his First Amendment protections from retaliation also did not apply.

“We agree with Lamb that racism and unprofessionalism in a public entity – particularly in law enforcement – can be matters of public concern, in a general sense,” Moritz wrote for the panel. But, she continued, “more than a vague mention of racism, unprofessionalism, or the phrase ‘good Ole boy’ is required before concluding that Lamb’s text message involved a matter of public concern.”

Civil rights attorney Darold W. Killmer believed a jury should have been allowed to decide whether Lamb’s termination stemmed from the text message. A government employer who fires a worker because the latter raised an issue of workplace discrimination “most decidedly” is a First Amendment violation, he said.

“It is hard to conceive how a court could conclude that an employee’s complaint of racism and favoritism in a public employer’s office is anything other than an issue of public concern,” Killmer explained.

Davis, the lawyer representing Lamb, believed that the 10th Circuit’s expectation was that any grievances about workplace conduct, in order to be protected from retaliation, needed to be communicated formally and with a call to action.

“Frankly, requiring such stilted formalistic communication in order for people to be protected seems to be both an unrealistic and unreasonable requirement,” he said. Davis also worried that employers who are “looking to limit their liability” would point to the decision in the future.

The case is Lamb v. Montrose County Sheriff’s Office et al.