State says employee hasn’t proved she was demoted for Facebook post

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Lawyers representing the Department of Natural Resources are asking a federal judge to deny an employee’s request for an injunction after she claimed she was punished for making a derogatory comment on social media about Democratic gubernatorial nominee Ben Jealous.

The request comes even as the attorney representing Candus Thomson, a spokeswoman at the department’s Natural Resources Police, is asking a federal judge to compel the state to produce 11 documents, including emails regarding Thomson dating back to Sept. 17.

In their request, attorneys for the state said Thomson and her attorney, James Astrachan, failed to provide any proof that changes in her role at the agency were directly connected to a disparaging comment made about Jealous on Facebook. Jealous, the Democratic nominee, is challenging Republican Gov. Larry Hogan in the 2018 election.

Thomson “has failed to show irreparable harm, that she was deprived of some valuable benefit, or a most extraordinary circumstance for the granting of the disfavored relief of a preliminary injunction in her case against Secretary (Mark) Belton,” wrote Assistant Attorneys General Roger Wolfe and Jennifer Wazenski.

Attorneys for the department and Belton said Thomson has in fact not been demoted and she has failed to show that any changes to her job were linked to the now-deleted Facebook comment.

“In this case, (Thomson) alleges that it was explained to her on September 24 that her duties and responsibilities were now assigned to four other individuals,” the attorneys for the department wrote. “However, the plaintiff does not assert that she was being terminated, discharged, or even that the reassignment had anything to do with her Facebook post on September 17, 2018.”

The attorneys noted that Thomson retained her current job description and salary.

“Thus, the remedy for reinstatement is inconsistent with the plaintiff’s allegations because the plaintiff is actually asking a federal court to remediate a management decision to re-assign duties and responsibilities that the plaintiff alleges she once had,” the attorneys for the department argue in their response.

Regarding Belton’s involvement, attorneys wrote there was no allegation that he ever acted personally in Thomson’s case.

Additionally, the attorneys for the department noted that Thomson previously announced her intention to leave the agency next week, making the entire lawsuit moot.

A hearing is scheduled for Nov. 1 in Baltimore.

Thomson, a spokeswoman for the Maryland Natural Resources Police, alleges she was demoted last month from her position after calling Jealous an “a–clown.” Her comment was in response to a post about his decision to veto a reporter’s participation in a debate with Republican Gov. Larry Hogan.

Thomson made her comment on the personal-professional Facebook page of Bryan P. Sears, a reporter for The Daily Record. She posted it at 5 a.m. from her personal tablet device in her home. Thomson’s comments are protected by the First Amendment, and Thomson therefore cannot be sanctioned by her government employer, according to Thomson’s lawyer, Astrachan, of Astrachan Gunst Thomas.

Thomson later voluntarily removed the comment after a supervisor asked her about the post but was told she could no longer speak to reporters as she had under her previous position, a change Thomson and her lawyer called a demotion. Her attorney claims, in the filing, that Thomson is not a political hire and that her comment, made on personal time, is constitutionally protected.

Thomson is not seeking monetary damages but is asking a federal judge for a temporary restraining order and for a preliminary injunction that would, at least temporarily, reverse her reassignment.

Attorneys for the department wrote that Thomson’s “position was subject to demotion or dismissal based on political affiliation and speech. Accordingly, (she) cannot make our a First Amendment retaliation claim even if she could establish that she was ‘demoted as a result of the Facebook post.'”