Judge dismisses 7 claims in Gibbons texting case

By Cy Ryan

Tuesday, March 30, 2010 | 8:52 a.m.

CARSON CITY – A federal judge has dismissed seven of the 10 claims filed against Gov. Jim Gibbons and his budget director by an employee who believes she lost her job after leaking information about the governor’s excessive use of calls on his state cell phone to a female friend.

But U.S. District Judge Robert Jones has allowed claims to go forward by Mary Keating in her suit that she was the victim of defamatory statements, that she suffered emotional distress and that proper rules were not used in removing her and transferring her to another job.

In 2008, Gibbons made more than 800 text messages to his friend Kathy Karrasch. At that time, Keating was an administrative services officer in the state budget office overseeing spending by the governor.

At the time, Gibbons had not filed for divorce. Karrasch is the same woman who accompanied Gibbons to the National Governors’ Conference this year in Washington D.C.

About five weeks after the misuse was revealed, Keating was told she was being fired. She has said she believes the governor felt it was her who leaked the information to the press. She also says state Budget Officer Andrew Clinger retaliated against her.

Gibbons repaid the state more than $130 for the text messages.

Keating said she had the option of being fired, resign, retire or take a similar temporary position in the state Department of Conservation and Natural Resources. She took the job in conservation and was later hired in a similar position in the Department of Health and Human Services.

Judge Jones said Keating could go forward with her claims that she was the victim of defamatory statements by Gibbons and Clinger that she was removed from her job because of performance issues. She maintains those were false statements.

She says she suffered mental distress by being exposed to public view. And she said the proper rules weren't followed leading to her transfer. Jones said both of these claims could also go forward in the suit.

Jones, however, rejected Keating’s claim that her right to free speech was violated. Nowhere does Keating say in the suit she talked to the press and the judge said “the First Amendment affords no protection to speech that the employee did not actually utter.”

The judge rejected her claim that her ouster was due, in part, to her complaint about the budget director’s sexual conduct in his office with his wife. Jones said the termination of Keating took place two years after she made her complaint. That elapse of time is too much to prove a relationship between her complaint and her dismissal.

The judge rejected the claim of Keating that she was fired without adequate notice or a hearing. Jones said Keating “was not deprived of continued employment, nor was her salary or classification reduced” due to the alleged actions of the governor and the budget director.

Jones also turned down the claim of Keating that she had a legal right and expectation of continued employment. He rejected the allegations that Gibbons and Clinger breached a contract for continued employment.

Keating said she was the victim of “tortuous discharge” for reporting the misuse of the state phone by the governor. She said her discharge is against public policy.

Jones rejected the “tortuous discharge” claim, saying “the court finds that retaliation for reporting improper expenditure of government funds is not contrary to public policy…” He said “tortuous discharge” comes into play only when employers fire workers for refusing to violate the law, for refusing to work under dangerous conditions or refusing to accept jury duty.