AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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First Amendment Related
Monthly Law Journal Article: Does Ordering an Employee to
Refrain From Certain Personal Contacts Violate Constitutional Due Process?
by Michael P. Stone and Marc J. Berger, 2007 (3) AELE Mo. L.J. 501.
Monthly Law
Journal Article: Picketing
Rights of Public Employees, 2007 (11) AELE Mo. L. J. 201.
Monthly Law Journal Article: Regulation of an Employee's
Off-Duty Activities Part Three- Participating in Unapproved Training Programs
and/or Membership in Controversial Organizations or Events, 2008 (2)
AELE Mo. L. J. 201.
Monthly Law Journal Article: Regulation of an Employee's
Off-Duty Activities. Part Four– Sexual Conduct, 2008 (3) AELE Mo. L.
J. 201.
Monthly Law Journal Article: Online Networking, Texting
and Blogging by Peace Officers Part One – Impeachment, Policy & First
Amendment Issues, 2010 (4) AELE Mo. L. J. 201.
Monthly Law Journal Article: Online
Networking, Texting and Blogging by Peace Officers Part Two – Limitations on
Management’s Right to Monitor Content, 2014 (11) AELE Mo. L. J. 201.
Monthly Law Journal Article: Sexualized
and Derogatory Language in the Workplace, 2011 (2) AELE Mo. L.
J. 201.
Monthly Law Journal Article: Adverse Actions Against Public Employees For First Amendment Speech: An Introduction and Overview, 2020 (6) AELE Mo. L.J. 201.
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A former deputy constable claimed in a federal civil rights lawsuit that his First Amendment rights were violated because he was fired for reporting illegal acts of the constable and others to appropriate law enforcement officials. A federal appeals court found that claims against the county and the constable in his official capacity were barred because the deputy had previously filed a state law lawsuit against the county. The appeals court also upheld dismissal of claims against the constable in his individual capacity, granting the defendant qualified immunity. It ruled that it was not then clearly established that a law enforcement officer’s actions in an investigation with outside law enforcement enjoyed First Amendment protection. The constable was also entitled to qualified immunity on a First Amendment Petition Clause claim because the plaintiff's grievance concerning his firing was not “a matter of public concern” and the plaintiff did not assert that he was treated differently than other similarly situated deputy constables. Harmon v. Dallas County, #18-10353, 2019 U.S. App. Lexis 18627 (5th Cir.). After county solid waste enforcement officer’s job was eliminated, he filed a federal civil rights lawsuit against the employer, claiming unlawful First Amendment retaliation because of his decision to run for county sheriff as an independent. Some members of the county board allegedly pressured him to drop out of the sheriff’s race before acting to eliminate his existing job. A federal appeals court upheld the rejection of the county’s motions for summary judgment, judgment as a matter of law, and a new trial after a jury verdict for the plaintiff. The appeals court ruled that the claims in the lawsuit were not barred based on his response in his unemployment benefits application that he had been “laid off,” and that the plaintiff’s failure to appeal the county board’s decision in state court did not bar his First Amendment civil rights claim. The appeals court also found that the job at issue was not a policymaking position, and that sufficient evidence supported the jury’s verdict. Specifically, there was evidence that at least three of the five board members had a retaliatory motive for the termination. Griggs v. Chickasaw County, #18-60401, 2019 U.S. App. Lexis 21354, 2019 WL 3229151 (5th Cir.). A sergeant sued the county sheriff and several other county employees, asserting several claims related to treatment he asserted that he suffered as a result of his First Amendment protected political associations and beliefs The sergeant ran in an election as the Republican challenger to the Democratic sheriff. Upholding summary judgment to the sheriff on First Amendment discrimination and retaliation claims, a federal appeals court found that the plaintiff’s claims suffered from a “fatal flaw” because no adverse employment action was shown. His suspension fell outside the applicable two-year limitations period, and the record was devoid of any evidence that a reprimand or transfer in any way changed the terms or conditions of his employment. There was also no merit to the sergeant’s contention that being left off of the promotion list due to the suspension and reprimand was an adverse employment action where the sergeant offered no evidence as to how the promotion list was compiled or the significance of the list. None of the complained of actions, either separately or together, amounted to an adverse employment action. Charleston v. McCarthy, #18-1965, 2019 U.S. App. Lexis 17740, 2019 WL 2454230 (8th Cir.). A former police chief sued his city’s former city manager, claiming that his First Amendment rights were violated by subjecting him to adverse employment actions in retaliation for him engaging in constitutionally protected speech. The plaintiff suspected that there were improper city accounting and budgeting practices by the city manager and expressed his concerns to a number of city council members and others. A jury verdict in favor of the plaintiff awarded him $1,117,488 in economic damages and $3,000,000 in non-economic damages. A federal appeals court upheld this result. He provided sufficient detail about his speech to establish that it substantially involved a matter of public concern. The plaintiff spoke as a private citizen rather than a public employee, and the trial court properly concluded that his retaliation claim could be based in part on the defendant's own speech acts, in the form of defamatory communications to the media about him. The defendant waived his argument that his actions were supported by an adequate justification. Sufficient evidence supported the conclusion that the defendant's retaliatory actions proximately caused the plaintiff’s termination and the defendant was not entitled to qualified immunity Greisen v. Hanken, #17-35472, 2019 U.S. App. Lexis 16202, 2019 WL 2312566 (9th Cir.). A supervisor for the San Miguel County, Colorado, Road and Bridge Department claimed that his supervisors violated his First Amendment freedom of speech rights by demoting him for truthfully testifying in a state court proceeding as a character witness for his sister-in-law. The proceeding involved a domestic child custody dispute between his sister-in-law and her ex-husband, who also worked for the County’s Road and Bridge Department. The trial court dismissed his First Amendment claim with prejudice, concluding that the testimony at the custody hearing, given as a private citizen, was not on a matter of public concern. A federal appeals court rejected the plaintiff’s argument that any truthful sworn testimony given by a government employee in court as a citizen was per se always a matter of public concern. It applied a case-by-case approach, considering whether, in this particular case, the content of the testimony, as well as its form and context, made it speech involving a matter of public concern. After applying that analysis here, it concluded that the testimony given during the child custody proceeding was not on a matter of public concern. “Although [his] testimony involved a matter of great significance to the private parties involved in the proceeding, it did not relate to any matter of political, social or other concern of the larger community.” Butler v. Board of County Commissioners, #18-012, 2019 U.S. App. Lexis 9326 (10th Cir.). A doctor, who for 15 years under a contract was responsible for determining whether county firefighter applicants were medically qualified, claimed that she was terminated in retaliation for First Amendment protected speech when she aired concerns to her colleagues and county officers that the medical clearance process for a particular applicant was mishandled. A federal appeals court ruled that the claim failed because she did not engage in First Amendment protected speech as she spoke as an employee, and not as a private citizen. Further, he doctor never spoke publicly about this matter, but, rather, her speech was made solely to persons in her work chain of command. King v. Board of County Commissioners, #18-10631, 2019 U.S. App. Lexis 6387 (11th Cir.). A federal appeals court overturned the denial of summary judgment to the acting county sheriff and the county in a lawsuit brought by a woman allegedly terminated as an employee because of her marriage to her husband, who had been terminated as sheriff shortly before she was fired. She claimed that this violated her First Amendment right to intimate association. The appeals court ruled that the sheriff’s termination of the plaintiff as a jailer and dispatcher did not amount to a constitutional violation, because the fact that the marriage was a motivating factor in the decision to terminate her did not mean that the sheriff “directly and substantially interfered” with their marriage. In this case, the husband was terminated as sheriff for sexually harassing other employees. The plaintiff was then placed on administrative leave before the new acting sheriff determined that her return would create a hostile work environment due to her loyalty to her husband. The court also ruled that, because the sheriff did not commit an unconstitutional act, no municipal liability attached to the county. Muir v. Decatur County, Iowa, #18-1057, 2019 U.S. App. Lexis 6958 (8th Cir.). An intermediate California appeals court denied a petition seeking a judicial order compelling county officials to put the plaintiff on the primary election ballot for county sheriff. It ruled that Calif. Government Code section 24004.3, which requires persons to be elected county sheriff to meet certain law enforcement experience and education, is constitutional. The plaintiff did not meet those qualifications, having no prior law enforcement experience. The court found that there were good reasons why the legislature imposed an experience requirement because, in order to have a true understanding of law enforcement, you must learn about it in the field doing it. The state Constitution empowers the legislature to provide for the election of county sheriffs and to set minimum qualifications for sheriff candidates. The court rejected the argument that section 24004.3 conflicts with or was preempted by the California Constitution. The court also held that there was no merit to the argument that the legislature exceeded its authority pursuant to the California Constitution in enacting section 24004.3 or that the statute violates the First Amendment rights of would-be candidates or of the voters. Boyer v. Ventura County, #B289919, 2019 Cal. App. Lexis 218, 2019 WL 1236050. A police captain sued the city, its police chief and mayor, a fellow police officer, and other defendants, claiming that his First Amendment rights were violated after the defendants improperly targeted him for “speaking out and participating in a government investigation” about alleged misconduct by other officers, including his reporting an incident in which another officer pointed a gun at him. The trial court dismissed these claims and a federal appeals court affirmed, ruling that the First Amendment claim was properly dismissed because the speech at issue was made within the scope of the captain’s official duties rather than as a citizen, and thus were not constitutionally protected. Gilbert v. City of Chicopee, #17-2206, 2019 U.S. App. Lexis 3990 (1st Cir.). A federal appeals court upheld the dismissal of a sheriff’s department sergeant’s federal civil rights lawsuit claiming that various defendants retaliated against him in violation of his First Amendment rights after he filed a report that a fellow sergeant had misused a digital repository of criminal justice information. He also claimed that they had infringed his right to intimate familial association with his sister. The plaintiff’s sister had ended a long relationship with his fellow officer and took up with another man. “Bad blood” between the plaintiff and his fellow officer followed, in part because the plaintiff refused to encourage a reconciliation. The fellow officer then used a police database to check out the man who was living with the plaintiff’s sister (and his son) and saw that the man was a felon. When the plaintiff reported this misuse of the police database, the fellow officer was disciplined. The plaintiff alleged that he was subjected to harassment by the fellow officer, the county, and other officials, as retaliation for reporting this misconduct, in violation of his First Amendment right to speak on a matter of public concern; and that the defendants infringed on his right to intimate association with his sister by setting one against the other in the fellow officer’s quest to win back the sister. The court found that the defendants were entitled to qualified immunity because a reasonable officer would not have known that it was clearly established law that defendant's speech constituted a matter of public concern. Further, the plaintiff failed to allege any facts that would allow a reasonable jury to infer that anyone intentionally interfered with his relationship with his sister. Gorman v. Rensselaer County, #17-1120, 910 F.3d 40 (2nd Cir. 2018). An employee of a Michigan state insurance regulatory agency claimed that he was improperly terminated in violation of his First Amendment rights, specifically because he spoke out and worked to end the inclusion of intra-family exclusion clauses (IFEs) in insurance policies, which he believed were not in the public interest. A federal appeals court upheld summary judgment in favor of the employer.The plaintiff had argued that he was acting as a “virtual private citizen” because his duties as an insurance examiner required him to speak in the public interest. In making this argument, however, he essentially acknowledged that he was acting pursuant to his official duties when he sought to end the use of IFEs through his examinations, the very activity that he claims was the basis for his termination. “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” the court stated. His purpose was to further his official work to end what he believed to be an unfair insurer practice. Since his conduct was part of the performance of his job, it was proper to conclude that he was not speaking as a private citizen, so his speech was not constitutionally protected. Haddad v. Gregg, #18-1660, 2018 U.S. App. Lexis 33857 (6th Cir.). A city police officer also held positions with the city’s parks and electric departments. While running for a position on the city council, he improperly appeared in police uniform at a campaign event and represented on his time sheet that he was on duty during that event. A subsequent state police investigation resulted in criminal charges against him for official misconduct and “ghost employment.” He was elected to the city council and signed a deferred prosecution agreement in which he both admitted to the criminal charges and agreed to resign from the city council. The very next day, he distributed a letter accusing the Board of Public Works and Safety and city officials of corruption and criminal wrongdoing. The Board notified him of its intent to terminate his employment. The Board then fired him, crediting a prosecutor’s testimony that he would not accept case-related information from a police officer, like this one, who had admitted a crime of dishonesty, and rejected his argument that the Board members were biased and that the termination proceedings were a response to his letter accusing Board members of wrongdoing. He filed a First Amendment retaliation claim under 42 U.S.C. 1983, with state law defamation and whistleblower claims. A federal appeals court upheld summary judgment in the city’s favor. Federal courts, it stated, must give state administrative fact-finding the same preclusive effect to which it would be entitled in state courts, if the agency acted in a judicial capacity and resolved issues that the parties had an adequate opportunity to litigate. The Board acted in a judicial capacity and the employee had a fair opportunity to litigate the issues, the appeals court concluded. Taylor v. City of Lawrenceburg, #17-2803, 2018 U.S. App. Lexis 32845 (7th Cir.). A woman claimed that she was unlawfully retaliated against while employed as a Community Service Officer for the police department. A federal appeals court found that she was fulfilling her professional duty for the police when she spoke at a City Club event about alleged racial profiling. Therefore, because she spoke there as a public employee, and not as a private citizen, her speech was unprotected, and her First Amendment retaliation claim failed. The court also ruled, however, that an amended Last Chance Agreement which plaintiff was required to sign before returning to work was an unconstitutional prior restraint. Paragraph 5(g) of the amended Agreement barred plaintiff from saying or writing anything negative about the Department, the City or its employees. The Amended Agreement by its terms restricted private citizen speech on matters of public concern and therefore failed the Pickering balancing test. Therefore, the amended Agreement restrained the plaintiff’s speech as a private citizen on matters of public concern and the defendants failed to present justifications sufficient to warrant the overbroad restrictions. Therefore, the prospective restriction violated the First Amendment and claims relating to this could continue. Barone v. City of Springfield, #17-35355, 2018 U.S. App. Lexis 25156, 2018 WL 4211169 (9th Cir.). Three police officers sued a town on claims relating to their individual terminations. A federal appeals court held that the trial court erroneously concluded that each plaintiff’s claim arose out of the “same” wrongful act and, in the alternative, the meaning of “interrelated” was unambiguous, and that under that unambiguous meaning, the plaintiffs’ claims arose out of "interrelated" acts. Therefore, the town waived its governmental immunity for up to $1 million per plaintiff for damages (rather than $1 million altogether) resulting from the three wrongful terminations of the plaintiffs, subject to the $3 million Annual Aggregate Limit of the town's insurance policy. The appeals court panel also held that although the police chief was not a final policymaker of the town regarding the terminations, the town manager was a final policymaker. Therefore, his unconstitutional actions might fairly be characterized as actions of the town so that the town may be held liable to the plaintiffs for damages under 42 U.S.C. Section 1983. The appeals court also reversed the trial court's dismissal of the First Amendment claims against the town based on their having voiced concerns, prior to their termination, about the police chief’s conduct and management both to him and to the Governor’s office, resulting in an investigation of possible corruption in the Department. Finally, the trial court did not abuse its discretion in awarding one plaintiff 1.75 years of front pay. Hunter v. Town of Mocksville, #17-1374, 2018 U.S. App. Lexis 20829 (4th Cir.).A former police officer claimed that he was fired after reporting acts of misconduct by his former supervisor in violation of his First and Fourteenth Amendment rights. A federal appeals court upheld the trial court’s grant of summary judgment for the defendants, holding that the supervisor was entitled to qualified immunity on all properly pleaded claims against him, as he had not violated clearly established law and that the plaintiff's claims against the City were barred by res judicata because of prior proceedings. Sims v. City of Madisonville, #16-20440, 2018 U.S. App. Lexis 17776 (5th Cir.).A town manager and its director of public safety were entitled to qualified immunity on claims that they violated the First Amendment by terminating several employees of the town’s Department of Public Safety based on the content of their private text messages, several of which expressed concern that the Department was providing inadequate training to public safety officers. The plaintiffs’ evidence did not establish beyond debate that their interest in speaking freely outweighed the Department's interest in maintaining order and discipline. Cannon v. Village of Bald Head Island, #17-1847, 2018 U.S. App. Lexis 14190 (4th Cir.).A police officer who is also a former police union official sued the city which employed him and a number of individuals, claiming that they violated his First Amendment right to freedom of speech by retaliating against him for criticizing management decisions by police officials. A federal appeals court ruled that his union remarks were not made pursuant to his official duties as a police officer and was therefore speaking as a private citizen for purposes of the First Amendment. But two individual defendants were entitled to qualified immunity as their actions did not violate clearly established law. Additionally, the plaintiff failed to allege a plausible claim for municipal liability against the city. Montero v. City of Yonkers, #17-76, 2018 U.S. App. Lexis 12629 (2nd Cir.).An intermediate California appeals court ruled that the San Francisco police department can properly initiate discipline proceedings against police officers for sending homophobic and racist texts. In disciplinary cases, the state Peace Officer's Bill of Rights requires police agencies to file charges within one year after discovering misconduct. A trial court had dismissed the case, saying that the department filed charges after the statute of limitations period. But the appeals court disagreed, saying that the department was cooperating with a federal criminal investigation at the time, which extended the deadline. A joint police misconduct investigation in 2012 that led to the arrest of a former police sergeant Sgt. Ian and other officers who were later convicted of pocketing money found at the houses of drug dealers. During the investigations, local authorities discovered racist and homophobic texts between nine officers. “[San Francisco Police] cooperated with federal authorities by adhering to the [U.S. Attorney Office’s] confidentiality restriction and a federal protective order during the pendency of a wide-ranging criminal investigation aimed at uncovering the full scope of a conspiracy within the department’s ranks,” the court stated, tolling (extending) the time to file disciplinary charges. Daugherty v. City and County of San Francisco, #A145863, 2018 Cal. App. Unpub. Lexis 3789. An elected county court clerk hired the plaintiff as a deputy court clerk and did not run for reelection, instead supporting a fellow Democrat who was running for the nomination for the position. The clerk allegedly summoned the deputy clerk and tried to forcefully impress upon her the need for her to vote for the Democratic ticket and his preferred successor. She told him, “what you’re threatening is unconstitutional,” and then voted in the Republican primary election. She claimed that three weeks later, the clerk told her: “I know how you voted ... this could cause you your job.” Weeks later, the clerk terminated the deputy’s employment, citing: “Poor work performance, unable to complete tasks correctly and within given time lines. Abuse of sick leave, insubordination by lying to assigned supervisor.” The plaintiff claimed that the court clerk’s son, who was the county clerk, had “access to all voter information.” A federal appeals court upheld summary judgment for the county clerk and county on First Amendment claims. Besides the plaintiff’s speculation that the county clerk told the court clerk how she voted, the plaintiff failed to present any evidence that he improperly influenced her termination. Summary judgment for the court clerk, however, was overturned, as he had not definitively established that he would have terminated the plaintiff anyway for her performance issues. Mahn v. Jefferson County, #16-1731, 2018 U.S. App. Lexis 15386 (8th Cir.). In Chicago, an Independent Police Review Authority (IPRA) investigates complaints against police, including domestic violence, excessive force, and death in custody, and makes disciplinary recommendations. Accusations can be “sustained,” “not sustained,” “exonerated,” or “unfounded.” Investigators interview witnesses and procure evidence to draft reports. The IPRA’s Administrator retained final responsibility for making recommendations and establishing “rules, regulations and procedures for the conduct of investigations.” The plaintiff became an IPRA investigator and claims that in 2014-2015, his supervisors ordered him to change “sustained” findings and make his reports more favorable to the accused officers. He refused and was allegedly threatened with termination. He further claims that they requested Word versions of his reports to alter them to look like he had made the changes. The administrator then implemented a policy requiring his approval for all “sustained” findings. If an investigator refused to make a recommended change, he would be disciplined for insubordination. The plaintiff once again refused to change “sustained” findings and was fired. A federal appeals court upheld the dismissal of his First Amendment claims. That an employee may have good reasons to refuse an order, does “not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.” Because the IPRA required the plaintiff to draft and revise reports, his refusal to revise those reports was speech “pursuant to [his] official duties.” He spoke as a public employee, therefore, and not as a private citizen. The First Amendment did not protect this speech. Davis v. City of Chicago, #16-1430, 2018 U.S. App. Lexis 11985 (7th Cir.). A staff attorney for a state agency sued her supervisor for unlawful First Amendment retaliation. A federal appeals court ruled that it lacked jurisdiction to hear an interlocutory appeal from the denial of qualified immunity to the supervisor because existence of qualified immunity depended on resolution of factual disputes as to whether the employee was told to make false statements as to the meaning of Connecticut statutes and whether the employee’s complaints fell outside the scope of her job responsibilities. The plaintiff began making complaints that the program she was assigned to was being improperly administered. She was responsible for providing legal services to the Comptroller and Connecticut State Employees Retirement Commission, and prepared written materials for the Commission explaining that an incorrect standard was being applied. She claimed that the Comptroller and others subsequently retaliated against her by systematically stripping her of job responsibilities. She filed a whistleblower complaint with the Auditors under Connecticut General Statutes in December 2013 and by December 2014, her position in the Division was eliminated. Although she then transferred to another state agency, she lost two credited years of service for the purpose of eligibility for compensation and benefits. Brown v. Halpin, #16-3615, 2018 U.S. App. Lexis 6387 (2nd Cir.). A former city planning director sued the city mayor under 42 U.S.C. Sec. 1983, claiming that the mayor did not reappoint him to his position because he had sent an email to the city attorney raising concerns about impropriety relating to a city project. He claimed that this constituted illegal retaliation against him for exercising his First Amendment rights. A federal appeals court overturned a denial of qualified immunity to the mayor, who argued that a reasonable person in his position would not have understood the plaintiff to have spoken outside of his official duties, and that a “reasonable official: would have believed the email at issue here exceeded the scope” of his official duties. A split appeals panel concluded that the plaintiff failed to show a violation of clearly established federal law on an essential element of his claim, and therefore reversed the trial court’s denial of qualified immunity to the mayor. The key question was whether the mayor reasonably could have believed, at the time he fired the employee, that a government employer could fire an employee on account of speech stemming from almost 30 years of high-level involvement with an ongoing project. The employee had not shown that such a belief was unreasonable based on then-existing law. Knopf v. Williams, #17-8025, 2018 U.S. App. Lexis 5554 (10th Cir.). Overturning a trial court ruling, a federal appeals court ruled that a county sheriff and an undersheriff were entitled to qualified immunity on First Amendment claims by a number of employees because the constitutional rights to protect the statements they claimed they were punished for were not clearly established. The claims were brought by three categories of subordinates: (1) A lieutenant whose claim arose out of her statements to the media. The sheriff and undersheriff allegedly secretly took an Internal Affairs document, planning to use it against a political opponent. At the time, the lieutenant was in charge of the Internal Affairs Unit of the sheriff's office. She knew that the document was missing but did not know who had taken it. The mystery of the missing document generated public interest. To address the matter, the sheriff allegedly ordered her to speak to the media and deliver a false narrative, saying that the Internal Affairs document had been stolen by supporters of the political opponent. She spoke to the media as requested, but she did not give the story crafted by the sheriff, instead she claimed, she “spoke truthfully.” In response, she claimed, the sheriff transferred her to the midnight shift. Her speech was not definitely protected, the appeals court ruled, as it was not clearly established that her speech fell outside of her duties as a public employee. (2) A sergeant whose claim arose out of his political support for the candidate opposed by the defendants. Upon learning of the sergeant’s support, the sheriff allegedly retaliated by subjecting him to a “criminal investigation” into the missing Internal Affairs document, including interrogations, two lie-detector tests, and accusations that he had stolen the document and ordering a criminal investigation into the sergeant’s two children, both of whom were employees of the sheriff’s office. The appeals court held that it was not clearly established that such investigations of the sergeant and his children constituted adverse employment actions. The sergeant did not allege that his criminal investigation was made public, or that it resulted in humiliation, damage to reputation, or harm to his future employment prospects. (3) Three commanders whose claims arose out of their filing of complaints about the sheriff and undersheriff with the Equal Employment Opportunity Commission and the El Paso County Board of County Commissioners alleging improper practices. When the commanders notified the undersheriff of these complaints, three hours later the defendants allegedly put the commanders on paid administrative leave, confiscated their telephones, tablets, weapons, badges, and vehicles, and had them escorted out of the building. They alleged humiliation from the second and third actions. And in the aftermath of the complaints, the defendants filed Internal Affairs complaints against two of the commanders, subjecting them to internal investigations. The appeals court ruled that it was not clearly established law that the investigation of the commanders, their placement on paid administrative leave, and their alleged humiliation constituted adverse employment actions. Lincoln v. Maketa, #16-1127, 2018 U.S. App. Lexis 1055 (10th Cir.). |
A deputy sheriff ran against the incumbent sheriff in a primary election. During the campaign, he made various statements critical of the incumbent. After he was defeated, he was fired, allegedly for the statements he made. A federal appeals court ruled that the sheriff was properly denied summary judgment on his claim of qualified immunity in the deputy's federal civil rights First Amendment lawsuit because public officials were on notice that they could not punish an employee for protected speech when that speech neither impacted the employee’s official duties nor detracted from office efficiency, especially where the public employee’s speech occurred during a political campaign. The deputy’s statements were on matters of public concern and the sheriff made only a minimal showing of actual or potential office disruption from the deputy’s statements. Morgan v. Robinson, #17-1002, 2018 U.S. App. Lexis 2622 (8th Cir.).
A police officer claimed that he was terminated in violation of his First Amendment rights because of his support of a purported political opponent of the mayor. A federal appeals court held that the employee, who was accused of no wrongdoing, presented sufficient evidence to establish that he suffered an adverse employment action under the First Amendment as a result of his support of a city councilwoman because he did not learn of his firing until the moment that he received his letter of termination, and then he had a mere five minutes to agree to submit his resignation, a letter that the employer wrote, or accept his termination. Five minutes was not enough to overcome the coercive atmosphere and other circumstances that precipitated the employee's signing of the letter of resignation. The plaintiff did not voluntarily leave his employment with the city as the defendants argued, but rather was effectively terminated. A reasonable jury could conclude that his resignation was not a product of his free will, Rodriguez v. City of Doral, #15-11595, 863 F.3d 1343 (11th Cir. 2017).
A Hispanic firefighter alleged that after a transfer other firefighters began harassing him, calling him “spic” and “f--king Puerto Rican,” and stealing his food. He also claimed that the number of times he was assigned to work at different locations was excessive when compared to assignments given to non-Latino colleagues. His supervisor did not remedy the behavior. At one point, he called 911 about a “chest bump” incident but did not press charges because of pressure from the chief. The next day, he experienced chest pain, dizziness, and a migraine. A physician diagnosed him with a work-related chest contusion, work-related stress, and possibly post-traumatic stress disorder and ordered medical leave. The Medical Section Chief stated that the employer would not pay for treatment. After he had been on medical leave for six months, he obtained written authorization to return to work without restrictions, but the employer required additional documentation. Alamo filed a charge with the EEOC. The employer continued to request additional records. He sued under Title VII, and 42 U.S.C. 2000e. A federal appeals court reversed dismissal of his hostile work environment, disparate treatment, and retaliation claims. The complaint described an investigation into his fitness to work that was so onerous that it could not be completed in four months and sufficiently alleged retaliation. Alamo v. Bliss, #15-2849, 864 F.3d 541 (7th Cir.).
The District of Columbia was entitled to summary judgment dismissing an employee’s retaliation claims because some were untimely, he did not show that certain later employment actions were materially adverse, and he did not show his that his reduction in force termination was for protected activities or that this was not the true reason he was fired. As to his hostile work environment claims, he did not show he was subjected to "severe or pervasive" conduct, and the evidence showed the employer’s actions were taken to address his deficient work performance. Durant v. D.C. Government, #13-7060, 875 F.3d 685 (D.C. Cir. 2017).
Former workers' compensation arbitrators in Illinois filed a suit challenging a workers’ compensation reform statute. While that lawsuit was pending, the governor declined to reappoint them, ending their employment. But the arbitrators failed to show retaliation in violation of the First Amendment because the arbitrators were policymakers who could be terminated for engaging in speech on a matter of public concern in a manner that was critical of their superiors or their stated policies. Because the lawsuit sought to undercut the governor’s workers’ compensation reform initiative, it was sufficient reason for the decision not to reappoint the arbitrators because they were policymakers and not ministerial employees. Because they were gubernatorial appointees, their work was politically sensitive, and they exercised significant discretion in the performance of their duties. Hagan v. Quinn, #15-1791, 867 F.3d 816 (7th Cir. 2017).
A federal appeals court held that a sweeping policy restriction on speech imposed by a defendant major’s email regarding the Nevada Highway Patrol K9 program violated the troopers’ clearly established First Amendment rights. It affirmed the trial court's denial of qualified immunity, holding that the policy covered speech outside the troopers’ official duties, whether or not some speech within those duties was also covered. The policy reached speech on matters of public concern, and the prospective speech restriction imposed by the email violated the First Amendment. A public employer generally may not subject all employee speech regarding a particular government program, whether fact or opinion, and whether liable to disrupt the workplace or not, to a blanket ban. Further, a “robust consensus” of prior cases made clear at the time the defendant issued his policy that an employer ordinarily may not prohibit its employees from all public discussion relating to a particular department or government program. Moonin v. Tice, #15-16571, 868 F.3d 853 (9th Cir. 2017).
A correctional officer did not prove his claim of unlawful retaliation in denying his request for a new assignment because he had testified on his wife’s behalf in her claim challenging alleged government “patronage” employment. There was no evidence that the sheriff even knew about this protected speech or that it was the motivation for the denial. Another defendant employee also denied such knowledge and a third defendant employee was in no position to either grant or deny the request. Consolino v. Towne, #16-3681, 2017 U.S. App. Lexis 18950 (7th Cir.).
A city employee prevailed in her earlier lawsuit claiming First Amendment retaliation and state law whistleblower retaliation, and then filed a second lawsuit claiming that her application for City Finance Director was rejected in retaliation for her success in her first lawsuit. She failed to show this motivation. The city’s repeated attempts to convince the replacement employee to apply for the job and its rejection of other experienced candidates demonstrated that it would have hired who they did regardless of the plaintiff’s earlier lawsuit. Howard v. City of Coos Bay, #14-35506, 2017 U.S. App. Lexis 18522 (9th Cir.).
When the mayor of Chicago announced that he would not seek reelection, several police officers volunteered to provide campaign security for what proved to be the successful candidate in the mayoral election. Six of the volunteers were appointed to the new mayor’s transition detail. He told the police superintendent that his permanent detail should reflect the city's diversity and be “bare bones.” The detail was reduced from 21 officers and two commanders to 16 officers and one commander. Five officers working on the transition detail were selected. The final detail contained seven white, five Hispanic, and five black officers. The department reassigned a number of white and Hispanic members of the prior mayor’s protective services as patrol officers. In their prior assignments, they held the rank of patrol officer but received a sergeant’s pay. The reassigned officers claimed patronage hiring in violation of the First Amendment, 42 U.S.C. 1983 violation of the “Shakman” consent decrees against patronage employment, and race discrimination. All of the claims were either dismissed or rejected at trial. A federal appeals court upheld this result and ruled that there was sufficient evidence that city officials did not consider political factors when appointing the detail and that the trial court did not err in excluding evidence of historic race discrimination. Houlihan v. City of Chicago, #16-2949, 2017 U.S. App. Lexis 17427 (7th Cir.).
A long-time employee of a town’s wastewater-treatment plant reported alleged violations of state and federal requirements as well as voicing concerns that a manager’s nephew was improperly hired without advertising the job. His reports went up the chain of command. He was terminated, allegedly because the plant manager felt that he couldn’t work with him any longer. The trial court rejected his claim of First Amendment retaliation on summary judgment, reasoning that his speech did not involve matters of public concern. A federal appeals court reversed in part, stating that “constitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public.” Nor must courts limit reports of wrongdoing to illegal acts; a public concern includes “any matter of political, social, or other concern to the community.” Reporting regulatory violations “up the chain” to supervisory governmental employees can constitute speech on a matter of public concern, for purposes of First Amendment retaliation claim. Mayhew v. Town of Smyrna, #16-5103, 856 F.3d 456, (6th Cir. 2017).
A bailiff in a county courthouse had his employment hours reduced to part-time by the newly elected presiding judge, allegedly because she had supported a defeated candidate in the election. She sued, alleging unlawful retaliation based on her political activity. A federal appeals court upheld the denial of qualified immunity to the defendant presiding judge. His statement that he wanted "somebody who supported him" provided direct evidence of a retaliatory motive for a change in plaintiff's job. The right to not be subjected to such retaliatory action was clearly established. Williams v. Tucker, #15-3676, 2017 U.S. App. Lexis 8984 (8th Cir.).
A fire department did not unconstitutionally terminate a battalion chief in retaliation for protected speech on Facebook social media since his speech on matters of public concern regarding gun control and the department’s social media policy were outweighed by the department's interests in limiting dissension and discord, avoiding the appearance of racial bias, promoting community trust in enforcing department policies, and discouraging disrespect and insubordination.The employee's facial challenge to the department's social media and conduct policies was moot after the department repealed the policies and instituted new policies which eliminated the challenged provisions, and there was no indication that the department would readopt the allegedly offending provisions. Buker v. Howard County, #15-2066, 2017 U.S. App. Lexis 4920 (4th Cir.).
A former deputy claimed that the sheriff fired him in violation of his First Amendment right to freedom of association, based on his affiliation with an opposing candidate for the office of sheriff. Claims against the sheriff in his official capacity were properly dismissed because he was not, under Arkansas law and county policies, the final policymaker for employment decisions in the sheriff’s office because those decisions were subject to review by a quorum court. The sheriff was not, however, entitled to qualified immunity in his individual capacity.A federal appeals court noted that for “pure patronage dismissals,” federal courts apply the narrow-justification test outlined in Elrod v. Burns, #74-1520, 427 U.S. 347 (1976), and Branti v. Finkel, #78-1654, 445 U.S. 507 (1980). When a case involves the dismissal of an employee because of his or her political affiliations or support for certain candidates, a “dismissal solely on account of an employee's political affiliation violates the First Amendment unless the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” This is different from the “balancing” test utilized in another line of First Amendment cases, such as Pickering v. Board of Education, #510, 391 U.S. 563 (1968), and Connick v. Myers, #81-1251, 461 U.S. 138 (1983) involving overt expressive conduct, which provides for a flexible weighing of the case-specific facts to balance the interests of the government with those of the employee. The federal appeals court ruled that the trial court should have applied the Elrod-Branti analysis rather than the Pickering-Connick analysis to determine whether the sheriff’s actions in his individual capacity violated the plaintiff’s First Amendment rights. Because the wrong analysis was applied, further proceedings were required. Thompson v. Shock, #16-1643, 2017 U.S. App. Lexis 5361 (9th Cir.).
A former police officer claimed that he was fired for engaging in protected speech at a village board meeting concerning a proposal to lay off up to seven full-time officers. He was the secretary of the local police union, and in his comments presented three alternatives to the layoffs. He asserted that the defendants retaliated by accusing, interrogating, and ultimately firing him under the pretext of unsubstantiated violations of department policy. The defendants denied knowing that the plaintiff even attended the board meeting. They argued that he was legitimately fired because of a number of acts of misconduct. These included an improper traffic stop, two unauthorized, unnecessary, dangerous high‐speed chases, his behavior at and after an awards banquet, alleged reckless driving while off-duty, and violation of a no-contact order during the following investigation. He also allegedly lied when questioned about each of those incidents. A federal appeals court upheld the dismissal of the lawsuit, ruling that the plaintiff had presented no admissible evidence that his termination had been based on retaliation for his exercise of his free speech rights, McGreal v. McCarthy. #16-2365, 2017 U.S. App. 3944 (7th Cir.).
A woman who was fired as a litigation attorney for a county attorney’s office
sued the county and a number of its officials. She was terminated after she
made a comment to a newspaper reporter about settlement offers in certain
lawsuits against the county. Her tortious interference with contract claim
failed because the county was the client, and county risk management officials
had a legally protected interest in ensuring that the county attorney's office
provided quality legal services to the county. Her First Amendment retaliation
claim was rejected by the appeals court, overturning a jury verdict for the
plaintiff, because her speech to the reporter fell under the broad set of
official duties she owed the county as its attorney since she was “inevitably
speaking” as a lawyer representing the county. Her public statements touched on
the very matter on which she represented the county, and she did not make any
allegation of corruption or other serious misconduct. She did not speak as a
private citizen and her comments were not protected speech. Brandon v. Maricopa
County, #14-16910, 2017 U.S. App. Lexis 3259 (9th
Cir.).
Two police officers
claimed that their termination (forced resignation) was retaliation for their
exercise of their First Amendment rights after they went to an arrestee's house
and encouraged him to file an excessive force complaint against a supervisor
who had made the arrest. A federal appeals court ruled that the police chief
was entitled to qualified immunity on this claim. He could reasonably have
believed that the officers were acting as police officers rather than private
citizens and that their conversation with the arrestee was “surreptitious”
conduct intended to foment complaints and litigation against a supervisor with
whom they did not get along. The defendant police chief viewed this behavior as
a serious threat to the smooth running of the police department and to his own
ability to maintain operational control. The court found that he could
reasonably have viewed the department's interest in maintaining discipline as
vital, outbalancing any free speech rights. In any event, as the law was not
clearly established here, the chief was entitled to qualified immunity, and the
appeals court found it unnecessary to decide whether a constitutional violation
actually occurred. Crouse v. Town of Moncks Corner,
#16-1039, 2017 U.S. App. Lexis 2659 (4th Cir.).
An assistant county attorney was fired after she was elected to the city council in a municipality in the county. She sued, claiming that this violated her protection against political discrimination under the First Amendment as well as state law and a county ordinance. Rejecting the First Amendment argument, the federal appeals court stated that prior U.S. Supreme Court rulings make it plain that public employers may prohibit their employees from participating in a wide array of political activities, including running for elective office. The record in the case showed multiple potential points of conflict that could face the plaintiff as a member of the city council and an attorney in the county attorney’s Office. Therefore, the court rejected plaintiff's First Amendment arguments. Because plaintiff's termination did not violate the First Amendment, her section 1983 claim was also properly dismissed. The appeals court also held that the state law and county law claims were also properly dismissed, since neither created a private right of action, and neither protected the holding of a public office by a public employee. Loftus v. Bobzien, #15-2164, 848 F.3d 278 (4th Cir. 2017).
A county forest preserve district police officer, while off-duty, brought
champagne to a police station to engage in a New Year celebration. He claimed
to have received permission from a sergeant to do so. The next month, the
employer initiated disciplinary action against him for this action. According
to the plaintiff, he resigned his job after he saw the “handwriting on the
wall” when a hearing officer allegedly “upheld the charges” against him. In
reality, he claimed, the discipline for involvement in the party was a pretext
for retaliating against him because he had previously reported official
misconduct within the department including an incident involved racial
profiling, and another incident in which he believed a fellow officer had been
unjustly disciplined. The federal appeals court upheld dismissal of his
retaliation action under 42 U.S.C. 1983, finding that he did not show that he
was disciplined for engaging in constitutionally protected speech, or that he
was deprived of a constitutionally protected liberty or property interest
without due process. He did not plausibly allege that he made these complaints
about official misconduct as a citizen rather than as a public employee
speaking pursuant to his official duties since he shared the complaints only
with his employer. Roake v. Forest Preserve District of Cook County, #16-2976, 2017 U.S. App. Lexis 2781 (7th Cir.).
A city’s
police chief issued a revised policy on officers’ use of social media. It
stated, in part, that “Negative comments
on the internal operations of the Bureau, or specific conduct of supervisors or
peers that impacts the public’s perception of the department is not protected
by the First Amendment … Officers may comment on issues of general or public
concern (as opposed to personal grievances) so long as the comments do not
disrupt the workforce, interfere with important working relationships or
efficient work flow, or undermine public confidence in the officer.” The policy
also “strongly discourages employees from posting information regarding
off-duty activities.” While off-duty, two officers posted messages on Facebook
stating the “rookie cops” were being assigned duties without adequate training,
and referring to an unnamed supervisor who had not earned respect. Both
officers received oral reprimands and six months’ of probation. Shortly
thereafter, the chief issued another policy, which barred officers on probation
from participating in the promotion process. Both officers were therefore
ineligible to sit for a promotion exam. They stated that they planned to
challenge the disciplinary actions. They were then subjected to several
complaints and investigations and the chief decided to fire one of them. They
filed a federal civil rights lawsuit. The trial court granted the chief
qualified immunity, stating that the policy at issue fell within a “grey area”
and that the internal investigations were not retaliatory. A federal appeals
court reversed in part, acknowledging need for discipline, but stating that the
blanket policy on critical speech on social media and the disciplinary actions
taken pursuant to it would, if upheld, lead to an utter lack of transparency in
law enforcement operations that the First Amendment could not tolerate. Liverman v. City of Petersburg, #15-2207, 844 F.3d 400 (4th Cir. 2016).
A city’s former building
commissioner claimed that she was fired by the city administrator because she criticized
changes to the city's building code, requested an advisory opinion on the
bidding process for purchasing computer equipment, and asked for an audit of
the city's procurement department, as well as criticizing the city's handling
of an aquatic-center project. She claimed that her firing was in retaliation
for protected speech, and that the city was liable for damages as her firing
was caused by an official municipal policy or an unofficial municipal custom.
Rejecting this claim, a federal appeals court ruled that the city could not be
held liable for the administrator’s actions solely because it employed the
administrator. The plaintiff failed to show anything more than unsubstantiated
suspicion o a continuing, widespread, and persistent pattern of unconstitutional
misconduct leading to her termination. The city’s mayor, not its administrator,
was its official policymaker. Bolderson v. City of Wentzville, #15-3846, 840 F.3d 982 (8th Cir.).
A former deputy sheriff was
allegedly not rehired by the Broward County, Florida Sheriff, allegedly because
of his political loyalties and in violation of his First Amendment rights. The
county had designated the sheriff as its chief correctional officer (CCO). The
trial court, on this basis, held that the sheriff, acting as the CCO in the
hiring and firing of his deputies, was an arm of the state and therefore
entitled to the benefit of its Eleventh Amendment immunity from suit in federal
court. A federal appeals court rejected this analysis and therefore overturned
summary judgment for the sheriff. The definition of sheriffs as county
officers in the Florida Constitution weighed toward county status, and a county
could, but need not, designate its sheriff as its CCO under a state statute.
The state's imposition of minimum hiring qualifications for deputies, a strong
indicia of state control, was counterbalanced by the county's unilateral
ability to designate its CCO and the county's involvement in the removal of
deputies. The fact that the sheriff's budget was funded entirely by the county,
even when acting as CCO, was a strong indicator of county control, and the
factor of county (not state) responsibility for adverse judgments weighed
against immunity. Stanley v. Broward County Sheriff,
#15-13961, 843 F.3d 920 (11th Cir. 2016).
The president of a union local representing jail employees received complaints that jail staff members felt intimidated by management’s tactics during an investigation into alleged misconduct at the jail. He worked with a sergeant (the subject of the investigation) to draft a memo to inform staff members of their rights. It stated, in part, “I am in no way advising you not to cooperate with management, just advising you of your rights. It is your responsibility to ask for the representation.” The day after the memo was posted, the sheriff summoned the union president to ask him who wrote it. He also allegedly told him: “I can have you prosecuted for interfering with an ongoing investigation.” The sergeant was terminated based on video footage showing officers playing cards, damaging jail property, conducting outside business, not monitoring security cameras, and other violations of department policy at a time when the sergeant was their supervisor. The union president was also subsequently fired over alleged sexual misconduct with a female inmate. Upholding rejection of the two plaintiffs’ First Amendment retaliation claim, a federal appeals court held that whether or not the memo was protected speech on matters of public concern, the plaintiffs’ interest in free speech were outweighed by the defendants’ interest in getting compliance from correctional officers during the investigation. The sheriff and the department could reasonably have believed that the memo could disrupt legitimate law enforcement interests at the jail. The memo encouraged officers not to cooperate with the investigation and to ignore their superiors' confidentiality orders. Gillis v. Miller, #16-1249, 2017 U.S. App. Lexis 271 2017 Fed. App. 0002P (6th Cir.).
A
city fired the administrative secretary of its police department. She sued,
claiming that her termination was retaliation for her having voluntarily
provided an affidavit in support of a former police officer's
wrongful-termination claim against the department. The trial court found that
the city’s interest as a public employer outweighed the plaintiff’s interest in
her speech regarding the former employee’s claim. Individual defendants were
also entitled to qualified immunity. Helget v. City
of Hays, #15-3093, 844 F.3d 1216 (10th Cir. 2017).
A police reserve officer was
fired for allegedly making "harsh and accusatory statements" to his
superiors in emails with his co-workers copied. He sued, claiming that this
violated his First Amendment rights. A federal appeals court ruled that the
plaintiff's emails were not protected by the First Amendment when his interest
in sending them was outweighed by the police department’s interest in promoting
office harmony and efficiency, and containing overt hostility towards its
leadership. LeFande v. District of Columbia, #15-7055, 2016 U.S. App. Lexis
20107 (D.C. Cir.).
A police officer fiiled a written complaint with his
chief, reporting that fellow officers and county sheriff's deputies had been
racially profiling minority citizens and committing other constitutional
violations. As a result, he claimed, among other retaliatory actions, a
be-on-the -lookout advisory (“BOLO”) to all law enforcement in Douglas County,
Georgia, described him as a “loose cannon.” “Consider this man a danger to any
[law enforcement officer] in Douglas County and act accordingly,” the BOLO
alarmingly warned and ominously instructed. He had previously been terminated
as an officer, but appealed that decision, again repeating his allegations. The
BOLO was issued the day after the termination appeal hearing by a major with
the county sheriff's office. After the BOLO was issued, his car was allegedly
followed by both police and sheriff's vehicles. He was later allowed to return
to work as an officer. He sued the major in his official and individual
capacities for defamation and retaliation in violation of his First Amendment
rights. Rejecting defenses of qualified immunity on the First Amendment
retaliation claim and official immunity by the defendant major on the
defamation claim, the appeals court found that the plaintiff's alleged facts
would support a reasonable inference that the police department communicated
with the Sheriff’s Department about the plaintiff's complaints prior to the
issuance of the be-on-the-lookout advisory (BOLO), that the Sheriff’s Office
and the major knew about the termination-appeal hearing, and that the major
issued the BOLO at least in part in retaliation for plaintiff's complaints, in
violation of the First Amendment. The court also ruled that the plaintiff's
constitutional right to be free from retaliation that imperiled his life was
clearly established at the time that the BOLO was issued. The allegations
satisfied the showing of a deliberate intention to do wrong—that is, actual
malice. "Our First Amendment demands that a law enforcement officer may
not use his powerful post to chill or punish speech he does not like. If he
does so, he may not hide behind the veil of qualified immunity." Bailey v.
Major Tommy Wheeler, #15-11627, 2016 U.S. App. Lexis 21194 (11th Cir.).
A city's former police
chief claimed that he was fired for suing the mayor in unlawful retaliation for
exercising his First Amendment rights. Upholding summary judgment for the
mayor, a federal appeals court concluded that while the plaintiff spoke as a
citizen, his suit against the mayor in his personal capacity was not focused on
matters of public concern and therefore was not protected First Amendment
speech. While there was a mix of both public and private concerns in the
lawsuit, personal concerns predominated since the plaintiff sought personal
relief and the facts revolved around internal employment grievances arising
from a feud between the two men. Gibson v. Kilpatrick, #15-60583, 2016 U.S. App.
Lexis 17290, 41 I.E.R. Cas. (BNA) 1182 (5th Cir.).\
A former police officer claimed that she was
improperly terminated for First Amendment protected speech when she spoke to
local leaders about what ahe saw as a "scam" in the department,
unnecessary overtime for supervisors. Police officials were not entitled to
qualified immunity on this claim. The officer's right to free speech was
clearly established, and the speech was not made pursuant to the officer's
official duties. The court also found that the officer's probationary status
was irrelevant. Ricciuti v. Gyzenis, #12-432, 2016 U.S. App. Lexis 15556 (2nd
Cir.).
City officials (including the mayor, and a
councilwoman) were accused of violating a city manager's rights after he made
reports to law enforcement and other agencies about their alleged misconduct in
violating state campaign finance and disclosure laws. A federal appeals court
held that the plaintiff asserted a plausible First Amendment claim that he
spoke as a private citizen and not as part of his job duties concerning
violations of state campaign finance laws, but not as to his statements
concerning financial disclosure laws or disclosures made at city council
meetings. Carollo v. Boria, #15-11512, 2016 U.S. App. Lexis 15072, 26 Fla. L.
Weekly Fed. C 646, 41 I.E.R. Cas. (BNA) 993 (11th Cir.).
A U.S. Supreme Court case involved a police
detective who was a friend of the former police chief, who was running against
the incumbent mayor. He was not, however, involved in his campaign, and could
not even vote for him based on his city of residence. He did, however, at the
request of his mother, who was bedridden, pick up one of the candidate's
campaign signs to replace one that had been stolen from her lawn. An officer
assigned to the mayor's security staff saw this, and the next day, the
detective was demoted to a walking post as a result of his "overt
involvement in a political election." He sued, claiming that this was
unlawful retaliation for protected First Amendment activity. A federal appeals
court rejected his free speech claim, as he did not intend to convey a
political message when he picked up the sign. He did not show retaliation for
an exercise of the right to freedom of association as he had no affiliation
with the campaign. Prior precedent barred a claim of unlawful retaliation based
solely on a "perceived," as opposed to actual, exercise of First
Amendment rights. The U.S. Supreme Court reversed. It held that the officer was
entitled to seek relief for his demotion based on the city's mistaken belief
that he was engaged in political speech, since the city allegedly acted upon a
constitutionally harmful policy regardless of whether or not the officer did in
fact engage in political activity. The harm— discouraging employees from
engaging in protected speech or association in violation of the First
Amendment—is the same, regardless of factual mistake. Heffernan v. City of
Paterson, #14-1280, 136 S. Ct. 1412, 194 L. Ed. 2d 508, 2016 U.S. Lexis 2924.
In a further development in the case, in remanding for trial, the federal
appeals court said that, if, when the detective was disciplined, the city had
in effect (whether written or unwritten) a neutral policy prohibiting officers
assigned to the Office of the Chief of Police from overt involvement in
political campaigns, such a policy meets constitutional standards. The trial
court must then determine whether he was aware or reasonably should have been
aware of such a policy and whether he was disciplined for what reasonably appeared
to be a violation. Heffernan v. City of Paterson, #14-1610, 2016 U.S. App.
Lexis 15695 (3rd Cir.).
A part-time village police officer cited
and arrested a driver for car insurance-related infractions. The driver was
released and the citations voided after several phone calls between the
driver's mother, local politicians, and the chief of police. The officer became
concerned that voiding the citations may have involved official misconduct. He
shared his concerns with other officers and with the FBI. The police chief then
fired him. A federal appeals court ruled that his statements to fellow officers
and to the FBI were protected under the First Amendment. He was speaking as a
private citizen about a matter of public concern. His interest in speaking
outweighed the police chief's interest in promoting departmental efficiency.
The Village, however, was not liable for the chief's actions, since the chief
did not have the authority to unilaterally set departmental firing policy.
Kristofek v. Village of Orland Hills, #14-2919, 2016 U.S. App. Lexis 14782 (7th
Cir.).
A city's Superintendent of the Water Department
claimed that he was fired in unlawful retaliation for planning to testify
against the city in an age discrimination lawsuit. The federal appeals court
rejected the city's argument that plaintiff's speech was not speech as a
citizen on a matter of public concern and so fell outside the First Amendment's
protections. In this case, his sworn statement and imminent testimony were
outside the scope of his ordinary job duties, which meant that he was engaged
in speech as a citizen for First Amendment purposes. The court also concluded
that the retaliation provision of the age discrimination in employment statute
did not preclude a plaintiff such as the one in this case from bringing a First
Amendment retaliation claim under 42 U.S.C. 1983. Given the substantial
difference between the levels of scrutiny afforded age discrimination equal
protection claims and First Amendment retaliation claims, the court cannot
assume that Congress intended the age discrimination statute to affect the
availability of section 1983 claims. Stilwell v. City of Williams, #14-15540,,
2016 U.S. App. Lexis 14409 (9th Cir.).
A federal employee failed to show that she was not promoted
because of comments in her performance evaluation when that evaluation was not
shown to be actually used in the promotion process. Accordingly, even if
comments in the evaluation referred to her protected First Amendment speech
(being quoted in a newspaper article about race discrimination within the
agency employing her), she could not show that she was not promoted because she
exercised her First Amendment rights. Performance ratings that have a negative
impact on promotion potential do not constitute an adverse employment action
unless the rating actually led to the denial of the promotion. Wilson v.
Miller, #15-1415, 2016 U.S. App. Lexis 7401, 41 I.E.R. Cas. (BNA) 469 (8th
Cir.).
An employee of a state agency was a political
appointee of the elected Republican Land Commissioner. The Commissioner's
decision not to seek reelection put her job at risk. Allegedly to see that she
remained employed by the state, the outgoing Commissioner appointed her to a
senior civil service job where she'd be protected by state law against being
removed for political reasons. A newly elected Democratic Commissioner
dismissed her, and she sued, arguing that she was a protected civil service
employee and that the new Commissioner had unlawfully retaliated against her
for exercising her right to free political association in violation of the
First Amendment. A federal appeals court upheld the denial of qualified
immunity to the new Commissioner, as there was evidence that the plaintiff's
political affiliation was a motivating or substantial factor in her dismissal.
The First Amendment rights allegedly involved were clearly established at the
time of the dismissal. Walton v. NM State Land Office, #14-2166, 2016 U.S. App.
Lexis 7030 (10th Cir.).
A police detective was a friend of the former
police chief, who was running against the incumbent mayor. He was not, however,
involved in his campaign, and could not even vote for him based on his city of
residence. He did, however, at the request of his mother, who was bedridden,
pick up one of the candidate's campaign signs to replace one that had been
stolen from her lawn. An officer assigned to the mayor's security staff saw
this, and the next day, the detective was demoted to a walking post as a result
of his "overt involvement in a political election." He sued, claiming
that this was unlawful retaliation for protected First Amendment activity. A
federal appeals court rejected his free speech claim, as he did not intend to
convey a political message when he picked up the sign. He did not show
retaliation for an exercise of the right to freedom of association as he had no
affiliation with the campaign. Prior precedent barred a claim of unlawful
retaliation based solely on a "perceived," as opposed to actual, exercise
of First Amendment rights. Heffernan v. City of Paterson, #14-1610, 777 F. 3d
147 (3rd Cir. 2015). The U.S. Supreme Court reversed. It held that the officer
was entitled to seek relief for his demotion based on the city's mistaken
belief that he was engaged in political speech, since the city allegedly acted
upon a constitutionally harmful policy regardless of whether or not the officer
did in fact engage in political activity. The harm— discouraging employees from
engaging in protected speech or association in violation of the First
Amendment—is the same, regardless of factual mistake. Heffernan v. City of
Paterson, #14-1280, 2016 U.S. Lexis 2924.
A police chief was entitled to qualified immunity
in a lawsuit brought by a police officer claiming that he faced retaliation for
various instances of speech critical of the chief's competence. The officer was
both a member of and an officer of the police union. A federal appeals court
ruled that it was not clearly established that a city police officer's speech as
a union officer attacking the chief of police's competence as chief outweighed
the chief's governmental interest in effective administration of the
department. Lynch v. Ackley, #14-3751, 811 F.3d 569 (7th Cir. 2016).
A female police officer assigned to work as a
media liaison claimed that a male officer assigned to similar duties verbally
assaulted her on a number of occasions and that when she complained about this
and initiated an internal affairs investigation that sustained her complaint,
both she and another officer who came to her assistance were reassigned to
patrol duties, with her having to work the midnight shift in a dangerous
neighborhood. She also claimed that the coworker who verbally assaulted her was
never reprimanded. A federal appeals court found that her speech in complaining
about the harassment was not constitutionally protected by the First Amendment,
as she did not speak as a private citizen or on a matter of public concern, as
the objective of her complaints was only to further her personal interest in
remedying her employee grievance. Her speech was intimately connected with her
job duties. Kubiak v. City of Chicago, #14-3074, 2016 U.S. App. Lexis 385 (7th
Cir.).
A union representing county sheriffs deputies
sought to enjoin a newspaper from publishing newspaper articles about the
sheriff's department's hiring of officers who used to work for the county's
Office of Public Safety. The union claimed that the newspaper had information
and documents from the job applications and background checks of the deputies,
including accusations about past acts of misconduct. An intermediate California
appeals court granted the newspaper's anti-SLAPP (strategic lawsuit against
public participation) motion, because the public possessed a strong interest in
learning about the conduct and qualifications of the deputies. There is a
strong constitutional prohibition against prior restraint of publication under
the First Amendment, and the injunction sought was not content neutral. The
complaint seeking the injunction was stricken. Assn. for LA Deputy Sheriffs v.
LA Times, #B253083, 239 Cal. App. 4th 808, 191 Cal. Rptr. 3d 564 (2015).
A public employee union filed a lawsuit asserting
a First Amendment challenge to an Alabama state statute that “prohibit[s] a
state or local government employee from arranging by payroll deduction or
otherwise the payment of any contribution to an organization that uses any
portion of those contributions for political activity.” The union argued that
the subjective motivations of state lawmakers in passing the law was to
retaliate against the union for political speech on education policy. As part
of pursuing this claim, the plaintiff union used subpoenas seeking the files of
four state legislators. A federal appeals court reversed the trial court's
refusal to quash the subpoenas. It noted that when a statute was facially
constitutional, as this one was, a free speech challenge cannot be based on the
subject motivation of the lawmakers, their purpose in passing the law. In re:
Mike Hubbard, #13-10281, 2015 U.S. App. Lexis 17863 (11th Cir.).
A Correctional Department Lieutenant filed a
lawsuit in federal court claiming both federal civil rights violations and
violations of a California state whistleblower protection statute by his
employer. He claimed that adverse actions, including his dismissal, were taken
in retaliation for him disclosing alleged improper governmental actions to his
superiors, including negligent inmate supervision resulting in an escape, exhibiting
a movie to inmates that violated Department policy, attempts to collect
overtime for work not done, and allowing in contraband. The trial court
rejected the state whistleblower claim, finding that the plaintiff was barred
from "relitigating" it because it had already been litigated during
hearings before the state Personnel Board. A federal appeals court reversed,
finding that the decision by the state Personnel Board did not preclude the
plaintiff under theories of either res judicata or collateral estoppel from
litigating his whistleblower retaliation damage claim in the trial court.
Wabakken v. CA Dep't of Corr. & Rehab., #13-56075, 2015 U.S. App. Lexis
16307 (9th Cir.).
A Georgia deputy sheriff's First Amendment rights
were not violated when an elected sheriff, upon taking office, allegedly
transferred her to a position with less responsibility and authority, as well
as less prestige because she had supported his opponent. Under state law,
political loyalty was an appropriate requirement for the position of deputy
sheriff. The claim that her transfer constituted gender discrimination was
rejected. The sheriff stated that she was transferred to remedy problems with
the jail, and she failed to show that this was a pretext for discrimination.
Ezell v. Darr, #13-15851, 2015 U.S. App. Lexis 16851 (11th Cir.).
At a time when Illinois had a Democratic
governor, the plaintiff, a conservative who votes Republican, was working in
Chicago as a special agent for the state liquor control commission. She bought
a home in southern Illinois, and asked about transferring to that area. She
failed to submit a formal transfer request or apply for the job, and did not
get the position. She sued state officials, claiming that she was denied the
transfer in violation of her First Amendment rights because of her political
affiliation, as well as because of her gender. A federal appeals court upheld
summary judgment in favor of the defendants, since the undisputed evidence
showed that the plaintiff did not receive the desired transfer because she
never submitted the proper transfer request paperwork or otherwise apply for
the desired position. There was no causal link between this and her Republican
political affiliation. Bisluk v. Hamer, #14-3365, 2015 U.S. App. Lexis 16037,
127 Fair Empl. Prac. Cas. (BNA) 1729 (7th Cir.).
A city/county employee claimed that he was
wrongfully fired in unlawful retaliation fo engaging in protected First
Amendment speech, specifically complaining to his supervisors about the alleged
unlawful hiring of temporary exempt employees in violation of the San Francisco
Charter. A federal appeals court upheld the dismissal of the lawsuit, finding
that the plaintiff's complaints arose primarily out of concern about his own
professional advancement and his own status as a temporary employee. A due
process claim also was rejected, as temporary, non-civil service employees did
not have a protected liberty interest in continued employment. Turner v. City and
County of San Francisco, #13-15099, 2015 U.S. App. Lexis 9788 (9th Cir.).
A sergeant working at a county jail was also a
union leader. The union initiated mandatory contract arbitration with the
sheriff's officer. At the arbitration, an undersheriff testified regarding
training on CPR, firearms, and Taser. The sergeant then testified that the
undersheriff had misrepresented the degree of training provided. Following
this, the sergeant was told to wear business attire or his uniform to
subsequent arbitrations. He later wore a golf shirt and blazer and was
investigated for disobeying a direct order. He was then told that there would
be an investigation regarding his actions during a power outage at the jail,
and another investigation regarding subordinates' charges against him. He was
ordered not to inquire into this last investigation with any witnesses or
investigators but admittedly asked his subordinates for details concerning it.
He was subsequently suspended without pay for several days and demoted for
having created an unprofessional and hostile environment for subordinates as
well as having made derogatory statements to female detainees. In a lawsuit for
unlawful retaliation, a federal appeals court upheld summary judgment for the
county. While his testimony at the arbitration was protected by the First
Amendment, he failed to prove that his demotion and suspension were the result
of him being punished for his criticism, rather than being punished for his own
"extensive misconduct." Boulton v. Swanson, #14-2308, 2015 U.S. App. Lexis
13195, 2015 Fed. App. 170P (6th Cir.).
A police chief sanctioned an officer for
releasing to the media a recording of an Emergency Response Team's radio
communications during an incident involving a suspect exchanging gunfire with
officers and barricading himself inside a home. The officer claimed that this
was unlawful retaliation for protected speech in violation of the First
Amendment and a D.C. Whistleblower protection statute. The appeals court upheld
the rejection of the First Amendment claim as the response team recording was
within the provisions of a valid general order issued by the department against
the disclosure of confidential information that could jeopardize ongoing
investigations. The police department's interest in non-disclosure outweighed
the interests of the public and the plaintiff in releasing the recording.
Release of the recording could have harmed pending criminal investigations into
the incident, since the confidential information concerning the barricade, if
kept confidential, could provide a basis to gauge other evidence offered by
witnesses and those involved in the incident. The whistleblower claim was
rejected as the plaintiff failed to show how the release of the recording was a
"protected disclosure" under the statute as in effect at the time of
the incident. Baumann v. District of Columbia, #13-7189, 2015 U.S. App. Lexis
13530 (D.C. Cir.).
After a paramedic/firefighter was suspended by
the Fire District for failing to respond to a directive issued by the Fire
Chief, he emailed a newspaper reporter with criticisms and concerns about the
District and its chief. The email shocked and angered his co-workers and
battalion chiefs found that it "fostered division" among co-workers
and against the chief. The paramedic/firefighter was terminated. A federal
appeals court rejected First Amendment retaliation claims, finding the
defendants entitled to qualified immunity, as fire district board members
reasonably believed that his statements were an attempt to undermine the
chief's authority and would lead to disruption in the department. The court
granted the plaintiff leave to amend his state law computer privacy claims,
however, as he sufficiently alleged that the chief and his own ex-girlfriend
had improperly accessed his email account and gained access to his private
emails. Anzaldua v. Northeast Ambulance & Fire, #14-1850, 2015 U.S. App.
Lexis 11906 (8th Cir.).
Anti-abortion demonstrators were planning to
display signs with pictures of aborted fetuses outside an abortion clinic. An
officer finishing an overnight shift drove by and noticed the demonstrators. He
stopped his vehicle and told them they could not impede traffic or block anyone
from entering the premises. He threatened them with arrest if they did not
comply. One of the demonstrators subsequently claimed that the officer called
her a "fat fucking cow," while others said the officer used
profanity. While admitting that the confrontation had been
"adversarial," the officer denied using profanity. Later, off-duty,
and in civilian clothes, he returned to confront the demonstrators about their
signs. He returned in his personal vehicle. He spoke to an officer on duty
there, and to the female demonstrator he had previously confronted, allegedly
making negative comments about her weight and touching her, and represented
himself as an off-duty police officer. Another demonstrator requested
assistance in dealing with him by dialing 911. A departmental investigation
into his conduct concluded that his conduct towards the public was "harsh,
profane, and unruly and caused a huge disturbance." He had previously
received two written reprimands and five suspensions, and he was terminated
after a hearing on the last incident. A federal appeals court upheld summary
judgment against him on a First Amendment retaliation claim, finding that his
statements were not constitutionally protected because they directly conflicted
with his responsibilities as an officer and the department's interests in
running an efficient law enforcement agency outweighed his free speech
interests. The court overturned summary judgment in favor of the police board
on the plaintiff's administrative review claim, as the trial court made that
ruling spontaneously, without giving him an opportunity to argue it. Lalowski
v. City of Des Plaines, #12-3604, 2015 U.S. App. Lexis 10151 (7th Cir.).
After a new mayor was elected for an Indiana
city, he replaced many city staff members with his political supporters. A
federal appeals court ruled that it could not exercise pendant jurisdiction
over the city's appeal on employees' First Amendment claims, as these claims
were not "inextricably intertwined" with the mayor's appeal from a
partial denial of qualified immunity against him personally, qualified immunity
was properly denied as to one employee's claim, as unless evidence to the
contrary was presented at trial, it did not appear that political affiliation
was an appropriate requirement for a job as the city utility department's
customer service supervisor. Allman v. Smith, #14-1792, 2015 U.S. App. Lexis
10680 (7th Cir.).
Police officers were fired after they
contacted an association, state officials, and the N.C. State Bureau of
Investigation about alleged corruption and misconduct at their department. The
defendants in their lawsuit were not entitled to qualified immunity on their
First Amendment retaliation claims. The officers spoke as citizens on issues
that were indisputably of public concern, and it was clearly established that
speech about serious misconduct in a law enforcement agency was protected
speech. Hunter v. Mocksville, # 14-1081, 2015 U.S. App. Lexis 10033 (4th Cir.).
A former chief deputy in the sheriff's office
sued the sheriff, claiming that his termination after he raised complaints
about recordings being made in interrogation rooms violated his rights under a
state whistleblower protection statute as well as constituting unlawful
retaliation in violation of his First Amendment rights. The First Amendment
claims failed because his complaints were made within the scope of his
employment duties and therefore his speech was not protected. And he failed to
establish a claim under the Louisiana whistleblower statute, because he did not
show that the sheriff's office, in making the recordings, committed an actual
violation of state law. Wilson v. Tregre, #14-31179, 2015 U.S. App. Lexis 8582 (5th
Cir.).
A police officer involved in two highly
publicized incidents involving claims of excessive use of force was fired, and
sued, claiming that the city and a safety manager proceeded against him in
retaliation for his protected speech in violation of his First Amendment
rights. A federal appeals court held that he failed to state claims upon which
relief could be granted. As to his argument that the city would not have sought
judicial review in state court of a Civil Service Commission decision in his
favor if he hadn't made a statement opposing a rule change, the evidence showed
that the city had already decided to fire him and appealed the decision before
he even made his statement. Nixon v. City & County of Denver, #14-1165,
2015 U.S. App. Lexis 7211 (10th Cir.).
A former reserve deputy claimed that the county,
its sheriff, and an undersheriff removed him from conducting investigations and
revoked his reserve commission in retaliation for him providing testimony to
support claims by a former criminal defendant of mistreatment by federal law
enforcement officers. A federal appeals court rejecting the First Amendment
claims against the sheriff and undersheriff, ruling that, at the time of the
events, it was not clearly established that such testimony was constitutionally
protected, so they were entitled to qualified immunity. At the same time, the
appeals court did hold that the testimony was constitutionally protected and
that explanations that the defendants provided for their actions were
pretextual. Seifert v. Unified Government, #13-3153, 2015 U.S. App. Lexis 3223
(10th Cir.).
An officer claimed that the city that employed
him retaliated against him for speaking to his commanding officers about an
alleged arrest quota policy at his precinct. A federal appeals court vacated
the trial court's summary judgment for the defendants, finding that his
comments on precinct policy didn't fall within his official duties. He pursued
the same avenue to complain about a precinct-wide policy as would a concerned
civilian, and the existence of a comparable civilian analogue for his speech
also supported the conclusion that he "spoke as a citizen." Matthews
v. City of New York, #13-2915, 2015 U.S. App. Lexis 3016 (2nd Cir.).
A woman worked for a sheriff's department for
over 30 years as chief dispatcher and office manager. When a new sheriff was
appointed, she disagreed with him regarding the handling of bond money, which
he wanted taken directly to court rather than deposited in the sheriff's office
account. The sheriff gave the plaintiff a reprimand, based on her alleged
failure to follow his directives. Refusing to sign the reprimand, she left
work, walked home, and never returned. She claimed that she had faced illegal
retaliation for speech on a matter of public concern. Upholding summary
judgment for the defendant sheriff, the federal appeals court found that the
reprimand did not affect the plaintiff's terms and conditions of employment,
and therefore could not be the basis for a retaliation claim. The reprimand was
not a materially adverse employment action since the plaintiff was not
terminated, nor did she receive a cut in pay or benefits or any alteration to
her job duties. Wagner v. Campbell, #14-2031, 2015 U.S. App. Lexis 3400 (8th
Cir.).
A police sergeant claimed that her termination
was retaliation for critical comments against the police chief that she made on
her Facebook page. A federal appeals court rejected her First Amendment claim.
While the statements she made were not within the ordinary scope of her duty,
so that she was speaking as a private citizen, her comments were not on a
matter of public concern, but rather primarily involved her displeasure with
the chief's intra-departmental decisions that impacted her personally. Further,
even if they had involved matters of public concern, the department's
substantial interests in preventing insubordination and maintaining discipline
and close working relationships outweighed her minimal interest in making the
statements. Graziosi v. City of Greenville, #13-60900, 2015 U.S. App. Lexis 370
(5th Cir.).
A police department employee claimed that he was
retaliated against in violation of his First Amendment rights. The trial court
found that his communications with the media about certain cases of interest
enjoyed First Amendment protection. The plaintiff presented enough direct
evidence of retaliatory intent from which a jury could reasonably have found a
causal connection and the Department's adverse employment actions, establishing
a prima facie case of First Amendment retaliation, so the defendants were not
entitled to summary judgment. The alleged retaliatory acts included investigation
into his personal affairs, serving him with disciplinary charges, reassigning
him to a lower-paying administrative position, suspending him without pay, and
eventually forcing his retirement. Smith v. County of Suffolk, #13-1230, 2015
U.S. App. Lexis 600 (2nd Cir.).
A police detective was a friend of the former
police chief, who was running against the incumbent mayor. He was not, however,
involved in his campaign, and could not even vote for him based on his city of
residence. He did, however, at the request of his mother, who was bedridden,
pick up one of the candidate's campaign signs to replace one that had been
stolen from her lawn. An officer assigned to the mayor's security staff saw
this, and the next day, the detective was demoted to a walking post as a result
of his "overt involvement in a political election." He sued, claiming
that this was unlawful retaliation for protected First Amendment activity. A
federal appeals court rejected his free speech claim, as he did not intend to convey
a political message when he picked up the sign. He did not show retaliation for
an exercise of the right to freedom of association as he had no affiliation
with the campaign. Prior precedent barred a claim of unlawful retaliation based
solely on a "perceived," as opposed to actual, exercise of First
Amendment rights. Heffernan v. City of Paterson, #14-1610, 2015 U.S. App. Lexis
967 (3rd Cir.).
A sergeant employed by a county sheriff's
department also served as the chairman of a law enforcement political action
committee (PAC). The sheriff, up for reelection in a contested race, approached
him while he was on duty and told him the PAC should support him. The sergeant
replied that the sheriff would be treated just the same as any candidate and
that the PAC's members would vote on whom to endorse. The sheriff allegedly
told the sergeant that he would be transferred to jail duties if the PAC failed
to support his reelection. The sheriff allegedly knew that the sergeant
supported his opponent. The PAC did not endorse the sheriff, and three weeks
later, the sheriff transferred the sergeant to a job at the jail that was
"extremely less desirable" than his former duties, according to a
lawsuit for political discrimination. He continued working at the jail for a
year before being fired after disseminating a recording allegedly containing
the sheriff's threat against another officer. The sheriff was not entitled to
qualified immunity on the retaliatory transfer claim as the sergeant
sufficiently alleged that he was demoted in violation of his First Amendment
rights for failing to endorse the sheriff. The sheriff was entitled to
qualified immunity on the claim that the sergeant was terminated due to
protected activities as there were no details supporting an inference that the
sergeant was involved in the recording that he was allegedly fired for
disseminating, and therefore no causal connection between protected activities
and the firing. Burnside v. Nueces Cnty., #13-41344, 2014 U.S. App. Lexis 23126
(5th Cir.).
Eleven former city employees sued the mayor and
city claiming that the mayor had violated their First Amendment rights by
firing them because of their political affiliations. The trial court granted
summary judgment to the mayor on the claims of nine of the eleven employees,
finding that his argument that political affiliation was a permissible
qualification for their jobs was sufficiently arguable to entitle him to
qualified immunity. The trial court had declined, however, to certify
interlocutory appeals with respect to the claims of the other two plaintiffs. A
federal appeals court stayed the proceedings pending an interlocutory appeal of
the issue as to whether the mayor was entitled to qualified immunity on the
claims of these two employees. The issue of whether a job is one for which
political affiliation is an allowable criterion is an issue of law, not a
question of fact as the trial court seemed to think. If the mayor was entitled
to qualified immunity, he was entitled not to stand trial and that privilege
would effectively be lost if the claims were erroneously allowed to go to
trial. Claims against the city were also stayed until this issue is decided.
Allman v. Smith, #14-1792, 764 F.3d 682 (7th Cir. 2014).
A trial court improperly granted summary judgment
on claims by a county employee and her union that she faced unlawful
retaliation in violation of her First Amendment rights because of protected
speech to which the employer objected. The federal appeals court ruled that the
plaintiffs showed a genuine factual dispute as to whether an internal
investigation of the employee was retaliatory. Additionally, the trial court
should evaluate in a more detailed manner a number of incidents that it had
previously dismissed collectively as constituting "petty workplace
gripes" as there was evidence that some of the employer's actions may have
been taken as part of a general campaign against the employee in retaliation
for her speech, and these incidents might have greater materiality towards the
retaliation claim than when they were viewed in isolation. A reasonable juror
might find that some of these actions could deter protected speech. As to three
involuntary transfers, the employee produced evidence that they came shortly
after her acts of speech and that her employer's non-retaliatory business
justifications for them were pretextual. Thomas v. County of Riverside,
#12-55470, 763 F.3d 1167 (9th Cir. 2014).
A corrections officer was fired from his
employment with the county after he spoke to a news reporter about the arrest
of a university football player without authorization from the sheriff. He
argued that this violated his First Amendment right to free speech. Rejecting
this claim, a federal appeals court found that the statements made were ordinarily
within the scope of his duties, and did not merely concern those duties. He did
not speak to the news reporter as a private citizen and therefore his speech
was not protected against employer discipline under the First Amendment. Hurst
v. Lee County, #13-60540, 2014 U.S. App. Lexis 16153, 38 I.E.R. Cas. (BNA) 1607
(5th Cir.).
A deputy who worked at a county jail was vice
president of an employee union. He claimed that a seven-day suspension that he
received was retaliatory in violation of his First Amendment rights. He had
told a captain and a sergeant that he believed that mandatory overtime imposed
the previous day violated a collective bargaining agreement. While he was
speaking about a matter of public concern in his capacity as the union vice president,
and therefore as a citizen, he failed to show a causal connection between his
comments and the suspension, which the employer said was for his having signed
a deficient memo book. Graber v. Clarke, #13-2165, 763 F.3d 888 (7th Cir.
2014).
The collective bargaining organization
representing Philadelphia police officers, the Fraternal Order of Police,
operated a political action committee to distribute political contributions to
candidates for state and local office. The union, the political action
committee, and four officers sued to question the constitutionality of
provisions of the city charter that barred employees of the police department
from making contributions "for any political purpose. The provision only
applied to police, and not to other city employees and was adopted in 1951
because of a history of patronage employment. The federal appeals court found
that the ban was unconstitutional, reasoning that it may address valid concerns
(such as police partiality and politicized personnel practices) but that the
city did not explain how the ban addressed the feared harms in a direct and
material way. There was a lack of fit between the city's stated purpose and the
means chosen to promote it, and it was illogically under-inclusive. Lodge No. 5
of the Fraternal Order of Police v. City of Philadelphia, #13-1516, 763 F.3d
358 (3rd Cir. 2014).
A psychologist at an Illinois state prison
claimed that he suffered retaliation in violation of the First Amendment after
he was elected to his union's Executive Board and engaged in advocacy for union
members, voicing employee concerns to management. Adverse actions allegedly
included relocating his office, increasing his work load, denying his request
for advance leave time, revising directives affecting his job duties without
his input, removing him from a hostage crisis team, and making him meet with
mentally ill inmates without a guard in the same room. He was, however, not
fired, disciplined, or denied an employment opportunity. A federal appeals court
upheld summary judgment for the defendants, ruling that because the plaintiff
was acting as a union official, not as a public employee, when he made the
statements that were at issue, and they were therefore not protected by the
First Amendment. His complaints to management about the collective bargaining
agreement and work conditions were merely employee grievances and he did not
show that he addressed matters of public concern. Olendzki v. Rossi, #12-1340,
2014 U.S. App. Lexis 16866 (7th Cir.).
An ex-employee of a community college who
directed a program for underprivileged youth there learned that a state
representative also employed by the program had not been reporting for work, so
he fired her, and later testified under subpoena in two federal prosecutions
against the representative for mail fraud and theft in a program receiving
federal funds. The community college president later terminated the director,
citing budget shortfalls. The director claimed, however, that it was because of
his testimony. A federal appeals court ruled that the testimony was not
protected by the First Amendment because he was a public employee and did not
speak as a citizen while testifying. The appeals court also found that the
community college president was entitled to qualified immunity. The U.S.
Supreme Court reversed, unanimously finding that the testimony given was
protected by the First Amendment, while agreeing that the community college
president was entitled to qualified immunity in his individual capacity, as the
law on the subject had not been clearly established, so he reasonably could
have believed that a government employer could fire an employee because of
testimony given outside the scope of his ordinary job responsibilities. He was
entitled to Eleventh Amendment immunity in his official capacity. Further
proceedings were ordered to determine if the community college president's
successor could be ordered to reinstate the plaintiff. The sworn testimony was
outside the scope of the plaintiff's ordinary job duties and constituted speech
as a citizen on corruption in a public program, a matter of public concern.
There was no indication, further, that the testimony was false and erroneous.
Lane v. Franks, #13-483 189 L. Ed. 2d 312, 2014 U.S. Lexis 4302.
A deputy sheriff ran for election as sheriff, but
was defeated by the incumbent. The day after the election, the deputy was
fired, and he asserted a claim for First Amendment retaliation. The sheriff was
entitled to qualified immunity for the firing, as at least some of the deputy's
campaign speech did not have First Amendment protection. The sheriff could have
reasonably believed that some of the deputy's statements could be potentially
damaging to and disruptive in relation to co-workers' harmony and discipline.
He also could have reasonably believed that the decision to fire the deputy was
within the "breathing room" he had as a public official to make
reasonable choices, even if they are mistaken. Nord v. Walsh County, #12-3249,
2014 U.S. App. Lexis 12019 (8th Cir.).
Two employees of a county Emergency Services
Department, who were members of a firefighters' union local, argued that they
had been subjected to retaliatory fitness-for-duty examinations as a result of
their prior grievances and charges against the county. A Jury agreed, but the
trial court found that insufficient evidence supported the jury's verdict. The
appeals court reversed, reinstating the jury verdict, ruling that the jury was
permitted, under the evidence submitted, to find that an intent to retaliate
was a "but-for" case of the county's actions. Booth v. Pasco Cty.,
FL, #12-4194, 2014 U.S. App. Lexis 12838 (11th Cir.).
In a lawsuit concerning a disability
discrimination claim by a firefighter who lost all vision in one eye in an
accident unrelated to work, there was a genuine issue of fact as to whether
driving a fire apparatus under emergency lights was an essential function of a
firefighter's job. The department claimed that his vision loss prevented him
from driving at high speeds. The trial court prematurely ruled, as a matter of
law, that the employee could not meet the burden of demonstrating that his
requested accommodation was reasonable. The parties disputed whether there was
a vacant job opening in the Fire Prevention Bureau when the plaintiff made a
request for a transfer. A First Amendment retaliation claim was rejected, as
the firefighter's testimony that was supposedly the basis for the retaliation
was about a purely private matter. Rorrer v. City of Stow, #13-3272, 2014 U.S.
App. Lexis 3592, 2014 Fed App. 38P (6th Cir.).
While there was a settlement agreement in place
concerning certain issues arising in a firefighters corps, that agreement did
not bar claims for alleged unlawful retaliation against the plaintiff, a
transitory employee, for unlawful retaliation against her that arose after the
settlement agreement. Specifically, she claimed that she was subject to various
forms of abuse in retaliation for her early lawsuit claiming that she was not
hired as a firefighter because of her gender. Rodriguez-Vives v. PR Fire
Fighters Corps, #13-1587, 2014 U.S. App. Lexis 2894 (1st Cir.).
A former fire captain claimed that his
termination was an act of political discrimination in violation of his First
Amendment rights in retaliation for his support for a candidate for Fire
Commissioner. A federal appeals court rejected this claim, finding that the
employer gave legitimate business-related reasons for their personnel
decisions, including a new familial relations policy forbidding officers from
working shifts with or supervising their family members, such as the
plaintiff's wife, a full time firefighter, and that the employee failed to show
that the reasons given were pretexts. Pierce v. Cotuit Fire District, #13-1428,
2014 U.S. App. Lexis 1746 (1st Cir.).
The Library of Congress recognizes some employee groups and
allows them to use meeting rooms and obtain other benefits. An non-profit
organization composed of current and former employees of the library argued that
denying it such benefits violated its rights. A federal appeals court rejected
this claim, in the absence of any allegation that denying the group recognition
amounted to unlawful retaliation for statutorily protected employee or
applicants. Howard R.L.Cook v. Billington, #12-5193, 2013 U.S. App. Lexis 24749
(D.C. Cir.).
An officer was placed on paid leave after a
hearing officer recommended his termination while investigating an allegation
of him lying about the contents of a call from a police chief based on a
recording that served as part of a list of grievances against the chief. He was
later reinstated and sued, claiming unlawful retaliation in violation of the
First Amendment for his complaint about the chief. A federal appeals court
upheld a ruling that the statements were not protected speech as they had not
addressed a matter of public concern. The defendants had been justified in
bringing the charge based on the results of the investigation. Swetlik v.
Crawford, #12-2675, 2013 U.S. App. Lexis 25589 (7th Cir.).
A federal appeals court upheld a $1.1 million
jury award in favor of a terminated deputy on a claim that he suffered
retaliation for exercising his First Amendment rights. After he used pepper
spray and physical force to subdue a motorcyclist fleeing from a fellow
officer, he submitted his report. Allegedly alarmed that the incident could
result in a civil damages lawsuit, officers in the upper echelon of the chain
of command supposedly authorized detectives to interrogate him aggressively and
also ordered him to revise his report. The deputy opposed this order, regarding
it as legally and factually unwarranted. After he broadly publicized this to
numerous public officials, the media, and others, representing this as showing
corrupt and unlawful practices occurring in the sheriff's office, the sheriff
fired him. A federal appeals court ruled that the sheriff was not entitled to
qualified immunity and therefore upheld the jury award. Terminating him for
publishing documents from the office's grievance proceedings violated his
clearly established First Amendment rights. Durham v. Jones, #12-2303, 2013 U.S. App. Lexis 24507 (4th
Cir.).
A
police officer argued that the city and his superiors unlawfully retaliated
against him in violation of his First Amendment rights by firing him because he
kept expressing concerns about work-related safety issues to his supervisors. A
federal appeals court rejected this claim, ruling that the evidence presented
did not establish a First Amendment retaliation claim. A government employee,
in reporting safety concerns to his supervisors, acting under a duty to do so,
was not expressing himself as a private citizen so that his expression was not
protected by the First Amendment. The defendants were entitled to judgment as a
matter of law. Hagen v. City of Eugene, #12-35492, 2013 U.S. App. Lexis 24029
(9th Cir.).
A prosecutor filed felony charges against a
correctional officer who took his cell phone inside a facility in violation of
departmental policies and Illinois law, making 30 calls from work. Another
officer spread the news of this to fellow employees. A casework supervisor
called the prosecutor, urging him to drop the charges and let the matter be
handled in the employee disciplinary process. Internal affairs learned of this
and investigated the supervisor, who was reprimanded and suspended for five
days. He sued, claiming he was subjected to unlawful retaliation for protected
speech. A federal appeals court upheld a ruling that the defendants were
entitled to qualified immunity from liability as no clearly established rights
were violated. Further, the plaintiff had not proven his case as a matter of
law. His speech was not constitutionally protected since the interests in
maintaining workplace order and security outweighed the plaintiff's interests
in expressing his opinion on a work-related prosecution. Volkman v. Ryker,
#12-1778, 2013 U.S. App. Lexis 24000 (7th Cir.).
After the plaintiff was fired from the police
department for violating a number of policies, he filed a federal civil rights
lawsuit against the city and other defendants. Upholding summary judgment for
the defendants, the appeals court agreed that the plaintiff had not proven that
any of the disciplinary, personnel, or internal affairs decisions that he
complained about were made by a final policymaker for the city, barring
municipal liability. Additionally, he failed to show that his First Amendment
rights were violated, since he could not demonstrate that his speech on any
topic played a significant role in the decisions to start internal affairs
investigations concerning him or to terminate him. The court also rejected the
plaintiff's false imprisonment, false arrest, and malicious prosecution claims
as he could not show that they had been carried out without probable cause, or
that there was any connection between them and the defendants' actions. Carter,
Jr. v. City of Melbourne, FL, #12-15337, 2013 U.S. App. Lexis 19450 (11th
Cir.).
Six employees of a sheriff's office claimed that
they lost their jobs after expressing support for the sheriff's opponent in an
upcoming election. Some of them did so by "liking" or commenting on
the opponent's Facebook page. A federal appeals court found that expressing
likes on Facebook is protected free speech, and the "Internet equivalent
of displaying a political sign in one's front yard." The defendant sheriff
was entitled, however, to qualified immunity on three employee's claims seeking
damages against him individually as well as Eleventh Amendment immunity against
claims seeking money damages against him in his official capacity. No Eleventh
Amendment immunity was available, however, on three employee's claims seeking
reinstatement in their jobs. Bland v. Roberts, #12-1671, 2013 U.S. App. Lexis
19268 (4th Cir.).
An en banc panel of the 9th Circuit
overruled a previous decision, Huppert v. City of Pittsburg, #06-17362, 574
F.3d 696 (9th Cir. 2009) which held that an officer had no First Amendment
protection from employer retaliation for his report of internal corruption to
the FBI. The court reasoned that, after Garcetti v. Ceballos, 547 U.S. 410
(2006), courts must make a "practical" inquiry to determine the scope
of a government employee's professional duties and that Huppert erred in
concluding that California broadly defines police officers' duties as a matter
of law for the purpose of First Amendment retaliation claims. The court also
held that being placed on administrative leave, as the plaintiff was, could
amount to an adverse employment action. The dismissal of the retaliation claim
was therefore reversed. Dahlia v. Rodriguez, #10-55978, 2013 WL 4437594, 2013
U.S. App. Lexis 17489 (en banc 9th Cir.).
An assistant state's attorney was subpoenaed by a
special prosecutor to testify before a grand jury and then at a trial arising
out of an investigation of his boss for allegedly improperly influencing cases
involving political allies and relatives. His boss later interrogated him and
fired him. Suing, he claimed that his termination was unlawful retaliation for
his exercise of his First Amendment rights by offering truthful eyewitness
testimony. A federal appeals court rejected the trial court's conclusion that
the testimony was not constitutionally protected because it was made as part of
his official duties. While the plaintiff had worked in criminal justice,
presenting eyewitness testimony in court was not part of his employment duties.
The appeals court also found that First Amendment protection for giving such
testimony was clearly established, rejecting a qualified immunity defense.
Punishing someone for subpoenaed testimony, the court said, chills civic
discourse "in significant and pernicious ways." Chrzanowski v.
Bianchi, #12-2811, 2013 U.S. App. Lexis 16053 (7th Cir.).
An employee at a county jail wrote a letter to the
editor of a newspaper during an election campaign for sheriff, expressing his
support for the current sheriff's reelection and opposing his political
opponent. When the opponent was elected, the employee and a number of others
were told that they had two months to improve conditions at the jail or they
would be fired. Subsequently, the employee was demoted, and he took retirement,
and he sued the sheriff, his office, and the county for unlawful retaliation in
violation of the First Amendment. A federal appeals court found that summary
judgment for the defendants was inappropriate since there was evidence from
which a jury could find that the defendants had failed to show that they would
have taken the same actions against the plaintiff in the absence of his
protected speech. The court found that the plaintiff, in writing the letter,
was speaking as a citizen supporting a candidate during an election. Haverda v.
Hays County, #12-51008, 2013 U.S. App. Lexis 14485 (5th Cir.).
A police department detective supported a
candidate for mayor in a party primary. When the candidate lost, the detective
talked to a reporter about the election. One day after these comments were
published, the detective was reassigned to station duty officer, a more
deskbound position. He sued for unlawful retaliation in violation of the First
Amendment on the basis of his support for a political candidate, and for
demotion and constructive discharge without due process. The defendants
counterclaimed for abuse of process and malicious prosecution, and the trial
court granted the defendants summary judgment on the plaintiff's claims and
summary judgment to the plaintiff on the defendants' abuse of process claim but
not on their malicious prosecution claim, which the parties subsequently agreed
to be dismissed. The appeals court reversed on the retaliation claim, finding
that there was enough evidence for a reasonable jury to conclude that the
reassignment was motivated at least in part by a retaliatory motive, after
which the defendants would have to try to show that they would have taken the
same action even without the protected speech. Peele v. Burch, #12-3562, 2013
U.S. App. Lexis 13800 (7th Cir.).
A former university employee of Middle Eastern
descent claimed that he had been constructively discharged by racially and
religiously motivated harassment and also that in retaliation for complaining
about the harassment, efforts were made to interfere with a hospital's job offer
to him, resulting in the offer's withdrawal. After a jury returned a verdict
for the employee on both claims, a federal appeals court overturned the
harassment/discrimination claim, but upheld the verdict on the retaliation
claim. The U.S. Supreme Court vacated the ruling on the retaliation claim,
finding that the legal standard to prevail had to be to show "but for
causation," to prove that the harm would not have occurred in the absence
of the alleged wrongful actions (unlawful retaliation) of the employer, not a
lessened causation test used in an EEOC manual, requiring only a showing that
retaliation was a motivating factor in the action taken causing the harm.
Because the wrong legal standard was used, further proceedings were required.
University of Texas Southwestern Medical Center v. Nassar, #12-484, 2013 U.S.
Lexis 4704.
A police officer claimed that he was unlawfully
denied time-off awards in retaliation for engaging in protected activity,
filing an earlier employment discrimination claim that was settled. The
time-off awards gave an employee paid leave on five occasions over the next
three months. He claimed that certain actions he had performed in the prior
three months, following the settlement of his discrimination claims, merited
the time-off awards, such as making an assault arrest, pulling a person out of
an overturned car, etc. The fact that other employees were also involved in
some of the same incidents and that no one else was commended for these actions
either undermined his retaliation claim. He failed to show his entitlement to
the awards, and therefore, the failure to nominate him for them did not
materially affect the terms of his employment. Bridgeforth v. Jewell, #12-5015,
2013 U.S. App. Lexis 13467 (D.C. Cir.).
Labor unions and state employees sued various
state officials, claiming that they violated the plaintiffs' First Amendment
right to freedom of association by targeting employees for firing on the basis
of their union membership. A federal appeals court ruled that, based on
stipulated facts, that was the case, and reversed summary judgment for the
defendants, instructing that summary judgment be entered for the plaintiffs on
their First Amendment claim and that appropriate equitable relief be granted.
Further proceedings were ordered on individual plaintiffs claims. Claims for
money damages against the defendants in their individual capacities were not
barred by the Eleventh Amendment. State Employees Bargaining Agent Coalition v.
Rowland, #11-3061, 2013 U.S. App. Lexis 10970 (2nd Cir.).
A federal Air Marshal went on television in
disguise to criticize various actions and policies of the employing agency. He
was removed from his job when another employee with the agency recognized his
voice, since the interview with the reporter was deemed an unauthorized
disclosure of sensitive security information. The Merit Systems Protection
Board upheld his removal from the job by the Transportation Security
Administration (TSA). A federal appeals court held that the board had incorrectly
determine that the disclosure made fell outside the boundaries of the
Whistleblower Protection Act as material prohibited by law from being
disclosed. The court ordered further proceedings to examine whether, in fact,
the particular information disclosed was specifically prohibited by law from
being disclosed. MacLean v. Department of Homeland Security, #11-3231, 2013
U.S. App. Lexis 8485 (Fed. Cir.).
A police officer who led the officers' union
helped lead the union in criticizing the police chief and holding a vote of no
confidence in him. He claimed that the chief delayed his salary increase in
retaliation for his First Amendment protected free speech activity. A federal
appeals court agreed, finding that the speech involved was on issues of public
concern, the police chief's performance of his duties, and the delay in the pay
hike could be seen as an adverse employment action. Summary judgment in favor
of the chief was reversed on claims against the chief. The appeals court
upheld, however, summary judgment on a municipal liability claim. Ellins v.
City of Sierra Madre, #11-55213, 2013 U.S. App. Lexis 5731 (9th Cir.).
A number of correctional officers were members of
a specialized Special Operations Response Team (SORT) that guarded inmates in
the Cook County Jail’s Abnormal Behavioral Observation Unit (ABO). When six
violent felons escaped from that unit, an officer confessed to allowing them to
escape and named three other officers as either having advance knowledge of the
planned escape or asssisting him. The SORT team was disbanded and the
plaintiffs were investigated and reassigned. In a lawsuit, they claimed that
they had been retaliated against because of their political support for a
particular candidate for sheriff. A federal appeals court rejected this claim,
noting that there had been probable cause for the investigation, so other
motivations for investigating them were less relevant. It was clearly
objectively reasonable to conduct an investigation of officers believed to have
been involved in a multiple-felon jailbreak. Hernandez v. Cook Cnty. Sheriff's
Dep't, #12-1941, 2013 U.S. App. Lexis 6417 (7th Cir.).
Three jail employees claimed that the defendants,
who were supervisors or officials at the jail, took retaliatory adverse
employment actions against them in violation of their First Amendment rights in
response to a parody that only one of them created which suggested that the
defendants were corrupt and to the plaintiffs later filing a lawsuit based on
the alleged retaliation. A federal appeals court found that none of the conduct
for which the plaintiffs claimed to have been retaliate against was protected
by the First Amendment as it did not involve matters of public concern, but
rather was about their employment and supposed corruption involving
preferential hiring and staffing, selective enforcement in matters of employee
discipline and other forms of favoritism. Singer v. Ferro, #11-3919, 2013 U.S.
App. Lexis 6576 (2nd Circuit).
A county employee claimed that she had been fired
from her job as director of the county's 911 department in violation of a state
whistleblower protection statute after she questioned the transfer of county
funds from the county's ambulance funds and raised concerns about the ambulance
service provided to the county. The Michigan Supreme Court held that the
plaintiff had presented sufficient evidence so that reasonable people could
differ as to the true motivation for eliminating her job. The defendants,
therefore, should not be granted summary judgment, Debano-Griffin v. Lake
County, #143841, 2013 Mich. Lexis 146.
Present or former sergeants with the Jersey City
Police Department claimed they had been passed over for promotion to
lieutenant, despite having passed the civil service exam for the position, in
retaliation and for political reasons, based, in part, on the support one of
them gave to the mayor's opponent. Summary judgment for the defendants was
overturned as the retired sergeant who had supported the mayor's opponent had
presented sufficient evidence that the reasons given for her non-promotion may
have been pretextual. There was a genuine issue as to whether her political
conduct had been a motivating factor on the decision not to promote several
other sergaents. Montone v. City of Jersey City, #11-2990, 2013 U.S. App. Lexis
4720 (3rd Cir.).
A Hispanic police officer was promoted to
sergeant. He claimed that the department and police chief subsequently failed
to promote him to lieutenant and initiated a number of internal affairs
investigations into his conduct that were based on his race or national origin.
He also claimed that the police chief retaliated against him because he spoke
out at a press conference about an incident in which some of the city's
officers used excessive force against a Hispanic person, in violation of his
First Amendment rights. The court rejected these claims, finding that the
officers had failed to show that reasons given for the failure to promote him,
such as a pending hearing on misconduct charges, were pretextual, or that
discriminator animus motivated the investigations against him. As for the First
Amendment retaliation claim, while the appeals court agreed that speaking out
concerning alleged excessive use of force by the department against Hispanics
was a matter of public concern, the police chief was entitled to qualified
immunity from liability. The court found no evidence that the chief
decided not to promote the plaintiff or initiated the investigations against
him for any retaliatory reason. Garcia v.
Hartford Police Department, #11-4618, 2013 U.S. App. Lexis 1920 (2nd Cir.).
An employee of a county court clerk's office
asserted that her termination by the newly elected clerk was based on her prior
candidacy in the primary as the clerk's rival, and therefore unconstitutional
under the First Amendment. A federal appeals court rejected this claim, finding
that it did not violate the First Amendment. The jobs of deputy court clerks
were not protected by civil service, and those in the job lacked a protected
property interest in their employment. The court noted that this was not a pure
political patronage case nor a pure political affiliation case, since both the
newly elected clerk and the terminated employee belonged to the same political
party, both being Republicans. The court held that an elected official may fire
an immediate subordinate for opposing her in an election without violating the
First Amendment if the subordinate, under state or local law, has the same
duties and powers as the elected official, as they are the type of confidential
employee who can be terminated under applicable U.S. Supreme Court precedents.
The clerk had to be able to select a deputy from whom she could expect
undivided loyalty even if the day-to-day job did not involve setting policy or
the exercise of unlimited discretion. Underwood v. Harkins, #11-13117, 2012
U.S. App. Lexis 21788 (11th Cir.).
An employee of a county detention facility was
fired by a federal court-appointed administrator. The administrator was
appointed pursuant to a settlement with inmates who sued over the conditions at
the facility. He argued that the termination, justified on the basis of budget
cuts, was actually motivated by his political affiliation, and was unlawful, in
violation of his federal civil rights. The defendant argued that, because he
was court appointed, he was entitled to absolute quasi-judicial immunity. A
federal appeals court rejected this argument, ruling that terminating an
employee is an administrative act which absolute immunity does not apply to.
None of the administrator's duties were judicial in nature. "Nor would the
administrators of a municipality that has filed for reorganization under
Chapter 9 be immune from claims under sec. 1983 if they engaged in patronage
hiring." Coleman v. Dunlap, #11-2669. 2012 U.S. App. Lexis 17696, 34
I.E.R. Cas. (BNA) 321 (7th Cir.).
Corrections officers claimed that they were
unlawfully retaliated against for exercising their First Amendment rights. One
of the officers had complained that a superintendent and assistant
superintendent had discriminated against him and embarrassed him, while the
second filed an EEOC complaint charging race and religious discrimination.
Subsequently, they were terminated for disciplinary violations, but the
penalties were later reduced to suspensions. Both officers' complaints were of
an individualized nature. The First Amendment claims were without merit, as the
speech involved concerned the making of complaints about their job duties with
their employer's internal grievance procedure, and did not relate to matters of
public concern. Brooks v. Arthur, #11-1899, 2012 U.S. App. Lexis 13927 (9th
Cir.).
The First Amendment prohibits a public employee
union from increasing political activity fees for non-consenting nonmembers who
are required to pay certain union dues. The special assessment or dues increase
was imposed to raise funds for the political purpose of fighting state efforts
to reduce public employee pay. These expenses were not disclosed when the
regular assessment was set, so the union should have sent out a special notice
to inform the non-members of them and should refrain from collecting such funds
without the non-members' consent. Knox v. Service Employees International
Union, #10-1121, 132 S. Ct. 2156, 2012 U.S. Lexis 4663.
After a corrections officer complained to members
of the state legislature about a prison holding a rap competition for young
prisoners, she was reassigned from a position in the prison's school to a
general job with less favorable hours, losing her schedule that gave her
holidays and weekends off. A federal appeals court ruled that she had
sufficiently alleged facts constituting a First Amendment retaliation claim,
since her letter to the legislators involved a matter of public concern. She
told the legislators about activities that she believed could offend crime
victims and their families, and possibly put prisoners, staff members, and
members of the public eventually at risk. Mosholder v. Barnhardt, #10-2586,
2012 U.S. App. Lexis 9556; 2012 Fed. App. 0132P (6th Cir.).
Speaking at two union meetings, a police officer
voiced several criticisms of department officials. At approximately the same
time, he was disciplined for several violations of department policy. Following
that, he did not pass a fitness-for-duty evaluation, and the department sought
to fire him. Following arbitration, he was suspended rather than terminated. A
federal appeals court rejected his retaliation claim. He failed to show that
his speech, even if protected, was a motivating factor in the actions taken
against him. The adverse employment actions did not follow closely after his
speech, and his own deficient job performance was a significant intervening
event. Given that the serious deficiencies in his performance justified
discipline, he could not point to merely technical deviations from routine
procedure to create an inference of unlawful retaliation. Kidwell v.
Eisenhauer, #11-1929, 2012 U.S. App. Lexis 10233 (7th Cir.).
After a village fired its village manager, a
decision was made to eliminate the position of executive coordinator to the
manager. The person holding the job sued, claiming that this violated her First
Amendment right of association and friendship with the former manager. The
appeals court ruled that the eliminated position was a policymaking and
confidential one for which First Amendment protection was not available.
Additionally, those who adopted the ordinance abolishing the job were entitled
to legislative immunity, no matter what their motivation. The court also stated
that it could not find "any appellate decision holding that friendship is
a constitutionally impermissible basis of hiring or firing public
employees." Benedix v. Village of Hanover Park, # 2012
U.S. App. Lexis 7610 (7th Cir.).
A police department employee was first
involuntarily transferred to a new job and then terminated shortly thereafter.
She claimed that this was motivated by retaliation against her for exercising
her First Amendment rights in giving deposition testimony under subpoena in a
federal civil rights lawsuit filed by a former department employee against the
city and an assistant police chief. The testimony she gave was adverse to the
interests of the assistant police chief. The assistant police chief was not
entitled to qualified immunity. The plaintiff spoke on a matter of public
concern as a private citizen and there was evidence that retaliation against
her for this protected speech motivated her discharge. It was clearly
established that a supervisor cannot retaliate against an employee for such
testimony. Karl v. City of Mountlake Terrace, #11-35343, 2012 U.S. App. Lexis
9311((9th Cir.).
After a lieutenant lost his election bid to
replace the incumbent sheriff, during which he accused the sheriff-coroner of
corruption, he was placed on administrative leave and then demoted. In a
lawsuit by the ex-lieutenant charging unlawful retaliation in violation of his
First Amendment rights, a federal appeals court rejected the sheriff's defense
that the plaintiff had been a policymaker and therefore could be dismissed for
politically motivated reasons. "Moreover, dismissals on the basis of
political considerations must further a 'vital government end' [absent here]
because they infringe upon a constitutional right." The court ruled that
the sheriff was entitled to qualified immunity from liability, however, in
light of the plaintiff's concurrent service as chief of police services for a
city under a contract between the city and county. Under these circumstances,
the sheriff could have mistakenly believed that political loyalty was required
for someone with the lieutenant's job responsibilities. Hunt v. County of
Orange, #10-55163, 2012 U.S. App. Lexis 2815 (9th Cir.).
After a fire department's diving team was
eliminated for budgetary reasons, a boy drowned. An off-duty (and not in
uniform) firefighter, who had been a member of the team, was suspended after he
spoke at a village council meeting and told them that "A little boy had to
die but you guys saved some money" He sued for unlawful retaliation based
on his exercise of his First Amendment rights. A federal appeals court rejected
the village's defense that the firefighter had "communicated nothing more
than 'the quintessential employee beef: management has acted
incompetently'." It overturned summary judgment for the village, and
ordered further proceedings to determine whether his interest in speaking as a
citizen on a matter of public concern "outweighed the defendants' interest
in promoting the efficiency of the public services it performs."
Westmoreland v. Sutherland, #10-3766. 662 F.3d 714 (6th Cir. 2011).
A probationary correctional officer failed to
show that she was constructively terminated and compelled to resign in
retaliation for her refusal to make false statements to a grand jury, in
violation of her First Amendment rights. She had observed a couple arguing
outside a home, and had allegedly been pressured by a police detective who was unsatisfied
with her statements indicating that what she had observed had not been a
battery. He allegedly complained to her employer in an attempt to bully her
into changing her story, which she refused to do. She failed to show that the
alleged firing was retaliatory, and had no protected interest in staying on the
job, given her probationary status. Redd v. Nolan, #10-2680, 2011 U.S. App.
Lexis 23692 (7th Cir.).
A county correctional employee was fired for
transmitting a sexually explicit image to a subordinate's cell phone, and other
charges. A federal appeals court ruled that the pre-termination hearing
provided to the employee satisfied due process requirements. He claimed that he
was fired in retaliation for having brought a lawyer to represent him at his
pre-termination hearing, in violation of his First Amendment right to
association. The appeals court rejected this claim, stating that his retention
of an attorney did not relate to a matter of public concern. The court relied
on Borough of Duryea v. Guarnieri, #09-1476, 2011 U.S. Lexis 4564, 131 S. Ct.
2488, holding that when a public employee claims retaliation against them based
on the exercise of the First Amendment right to petition the government, they
must show their actions related to a matter of public concern, The appeals
court found that the same reasoning applied to First Amendment association
claims. Merrifield v. County of Santa Fe, #10-2175, 654 F.3d
1073 (10th Cir. 2011).
Employees of a municipal fire department claimed
that they were passed over for promotion because of a pattern of cronyism and
nepotism in the department. They argued that this had risen to the level of
political discrimination and that they were passed over for promotions because
they chose not to associate themselves with "politically -powerful"
members of the department. The appeals court upheld the rejection of this
claim, finding that this associational choice of theirs did not amount to
political or other constitutionally protected conduct. "The simple fact
that one is a friend or relative of a powerful person does not create a
political association implicating First Amendment concerns." Barry v.
Moran, #10-1607, 661 F.3d 696 (1st Cir. 2011).
A deputy sheriff called into a talk radio program
and stated that the current sheriff was not a good fit for the job. In
response, the sheriff called in and replied that the deputy was a
"slacker," and made statements about the deputy's disciplinary
record, saying it involved sexual harassment of another employee, when it
actually involved violation of a rule against offensive conduct or language.
The deputy sued the sheriff for unlawful retaliation against him for exercising
his First Amendment rights in criticizing the sheriff. A federal appeals court
rejected this claim, because "(w)e cannot afford one party his right to
free speech while discounting the rights of the other party." The appeals
court also rejected claims that the sheriff, in making the statements about the
deputy's alleged disciplinary record, violated Wisconsin laws concerning
privacy and open public records. The open records statute did not apply, as
there was no actual release of a public record. As for privacy, the court found
that there was no genuine public interest in keeping the record of the
concluded disciplinary investigation closed to the public. Hutchins v.
Clarke, #10-2661, 2011 U.S. App. Lexis 21475 (7th Cir.)
A
correctional facility training officer married a coworker who was subsequently
promoted to superintendent. A union representing correctional officers at the
facility was concerned about possible nepotism issues arising out of the
marriage. The training officer was subsequently fired after he brought a gun to
work, but was later reinstated, after which the wife was transferred to a
correctional institution in another city. The couple sued the department for
unlawful retaliation interfering with their First Amendment right of
association. A federal appeals court upheld the denial of qualified immunity to
the defendants, stating that "monogamous, rather than adulterous,
relationships deserve constitutional protection." Gaspers v. Ohio
Department of Youth Services, #09–3829, 2011 U.S. App. Lexis 16129 (6th Cir.).
A probationary officer was entitled to First
Amendment protection against retaliatory termination for his refusal to comply
with orders to make false statements, retract his earlier truthful report, and
make a new report concealing a co-worker's alleged use of excessive force. His
claim was not barred by Garcetti v. Ceballos, #04-473, 547 U.S. 410 (2006), or
Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.) , cert. denied, 131 S.
Ct. 444 (2010), since he was not just doing his job in disobeying orders from
the chief of police and other top administrators. Jackler v. Byrne, #10-0859,
2011 U.S. App. Lexis 15265 (2nd Cir.).
A police chief who was fired won his job back
through union arbitration, and was subsequently subjected to a variety of
restrictions concerning how to do his duties by the borough council. He sued
the borough under 42 U.S.C. Sec. 1983, arguing that his collective bargaining
grievance constituted a "petition" protected by the provision in the
First Amendment concerning the right to petition the government for redress of
grievances. He further claimed that the restrictions imposed were unlawful
retaliation for his exercise of his First Amendment rights, and that his
request for overtime pay was also denied in retaliation for his filing of the
lawsuit.. A federal appeals court ruled that the "public concern"
test applicable to First Amendment cases brought by public employees does not
apply to claims brought under the petition clause. The U.S. Supreme Court
disagreed, holding that a public employee's exercise of rights under either the
free speech or petition clauses must involve a matter of public concern to be
protected. The petition clause does not create "a right to transform
everyday employment disputes into matters for constitutional litigation in the
federal courts." The appeals court decision upholding jury awards of
damages for the police chief was therefore vacated. Borough of Duryea v.
Guarnieri, #09-1476, 2011 U.S. Lexis 4564.
An officer failed to show that she was retaliated
against for protected speech in violation of the First Amendment. Her "war
stories" concerning limited harassment by a trainer almost ten years
earlier had, at most, a "minimal bearing" on matters of public
concern, and the stories were communicated only to an audience of one with the
apparent intention of entertaining a co-worker, rather than "illuminating
governmental deficiencies." On the other hand, the trial court acted
improperly in granting summary judgment against the officer on her sexual
discrimination claim against a trainer who allegedly filed a complaint
subjecting her to a prolonged investigation and allegedly made statements
referring to her as a "cunt" and "dike." Conklin v. City of
Reno, #10-15482, 2011 U.S. App. Lexis 9763 (Unpub. 9th Cir.).
Even though a candidate for chief of police won
his election, he sued his opponent for violation of his federal civil rights,
as well as claims under state law, for allegedly interfering with his right to
seek public office. A federal court dismissed the federal claims as frivolous,
and sent the other claims to state court. The U.S. Supreme Court held that
reasonable attorneys' fees could be awarded to the defendant under 42 U.S.C.
Sec. 1988, but only for costs that the defendant would not have incurred
"but for the frivolous claims." Fox v. Vice, #10-144, 2011 U.S. Lexis
4182.
An African-American police officer failed to show
that she was dismissed in retaliation for opposing discrimination, as protected
under Title VII or New Jersey state law. Her complaints about certain alleged
violations of departmental regulations - such as another officer's transfer,
officers' smoking on site, and the practice of sending one-officer units to
two-officer areas did not involve practices made unlawful under the statutes at
issue, and did not constitute protected activity. Her reports to her
supervisors about being called a "pain" also did not involve
criticism based on her race or gender. Davis v. City of Newark, #10-4365, 2011
U.S. App. Lexis 4903 (Unpub. 3rd Cir.).
A police officer who
alleged that he was fired because he made comments on the Internet concerning
firearms and criticizing the borough council could pursue a First Amendment
retaliation lawsuit. He contended that his discussions and research on the
weapons issues were carried out on his own time, and that the issues involved
concerned the safety of police officers, and whether officers had sufficient
weaponry. If true, then he spoke as a citizen on a matter of public concern,
which would constitute protected First Amendment activity for which he could
not be fired. Beyer v. Duncannon Borough, #10-3042, 2011 U.S. App. Lexis
7793 (Unpub. 3rd Cir.).
Affirming a deputy sheriff's termination,
a verbal confrontation with the sheriff is not protected by the First
Amendment. Dahl v. Rice County, #09-1210, 2010 U.S. App. Lexis 19064 (8th
Cir.).
A lawsuit filed by a reserve officer challenging
a General Order that altered the governance of the D.C. Police Reserve Corps
implicates a "matter of political, social, or other concern to the
community." LeFande v. Dist. of Columbia, #09-7080, 613 F.3d 1155, 2010
U.S. App. Lexis 15159 (D.C. Cir.).
Eighth Circuit rejects a Title VII retaliation
and First Amendment action brought by an Omaha police auditor who fired after
she had published a report that was critical of Omaha police practices. She was
not speaking as a citizen, and Title VII does not prohibit retaliation for
criticizing discriminatory police tactics. Bonn v. City of Omaha, #09-3332,
2010 U.S. App. Lexis 21486 (8th Cir.).
Eleventh Circuit upholds a suit brought by a
District Attorney's investigator who had been terminated because he was seeking
election to the county commission, in opposition to the District Attorney's
husband. The D.A. was entitled to qualified immunity in her personal capacity,
but not in her official capacity. Randall v. Scott, #09-12862, 610 F.3d 701,
2010 U.S. App. Lexis 13377 (11th Cir.).
There is a five-part test in actions brought by
public employees who allege a First Amendment violation: (1) Whether the
employee spoke pursuant to his official duties. (2) Whether the subject of the
speech was a matter of public concern. (3) Whether the employee's interest in
commenting on the issue outweighed the interest of the employer. (4) The
employee must prove that his speech was a substantial or a motivating factor in
a detrimental employment decision, and if so, (5) The employer may demonstrate
that it would have taken the same action against the employee, even in the
absence of the protected speech. Deutsch v. Jordan, #09-8042, 2010 U.S. App.
Lexis 17677 (10th Cir.).
Tenth Circuit concludes that it was unlawful for the
Utah Highway Patrol Assn. to construct 12-ft. high Latin style crosses on
public land in memory of fallen state troopers. The memorials were inspired by
military cemeteries, and were designed by Mormons (which is a religion that
does not use the cross as a religious symbol). “This case involves memorials
using a Latin cross, which “is unequivocally a symbol of the Christian faith...
[and] there is little doubt that Utah would violate the Establishment Clause if
it allowed a private group to place a permanent unadorned twelve-foot cross on
public property without any contextual or historical elements that served to
secularize the message conveyed by such a display.” American Atheists, Inc. v.
Duncan, #08-4061, 2010 U.S. App. Lexis 17249 (10th Cir.).
The various complaints of two police sergeants
against their lieutenant were not entitled to First Amendment protection. Poor
interpersonal relationships among coworkers are not matters of public concern.
“To transform every workplace squabble ... would be to trivialize the great
principles of free expression the First Amendment embodies.” Desrochers v. City
of San Bernardino, #07-56773, 572 F.3d 703, 29 IER Cases (BNA) 645 (9th Cir.).
Rejecting a freedom of association argument, the 11th Circuit dismisses the
suit of a demoted firefighter who had an extramarital affair with one of his
subordinates. The relationship between supervisors and subordinates is critical
to the effective functioning of the fire department. Starling v. Bd. of Co.
Cmsnrs., #09-11168, 2010 U.S. App. Lexis 7091 (11th Cir.).
Nebraska Supreme Court overturns an arbitration
award that reinstated a state patrol officer who had joined the Knights Party,
a Ku Klux Klan affiliated racist organization. "Nebraska public policy
precludes an individual from being reinstated to serve as a sworn officer in a
law enforcement agency if that individual’s service would severely undermine
reasonable public perception that the agency is uniformly committed to the
equal enforcement of the law and that each citizen of Nebraska can depend on
law enforcement officers to enforce the law without regard to race." State
v. Henderson, #S-07-010, 277 Neb. 240, 2009 Neb. App. Lexis 28.
Police officer who was
transferred and suspended for 15 days sued the commissioner, claiming that he
was disciplined more harshly because he had pleaded “not guilty” and opted to
challenge the charges against him before the Board of Inquiry. A federal
appeals panel has held that a plea of not guilty is not protected speech under
the First Amendment. While “lawsuits and grievances directed at a government
employer or public officials ... are protected petitions under the First
Amendment, even where they only address matters of private concern,” merely
entering a plea is not protected because it is a response, and not the
initiation of legal proceedings. Hannan v. City of Philadelphia, #07-4548, 2009
U.S. App. Lexis 829 (Unpub. 3rd Cir.).
Seventh Circuit overturns a $240,000 verdict awarded to
a Cook County Sheriff's employee. Filing a police report is not a matter of
public concern, and an "internal complaint ... is an obvious form of
speech made pursuant to official duties under the Garcetti standard; it would
require mental gymnastics to see it otherwise." Houskins v. Sheahan,
#06-2283, 2008 U.S. App. Lexis 24158 (7th Cir.).
Although the filing of a grievance is a
constitutionally protected activity under the First Amendment’s Petition
Clause, a plaintiff also must present evidence that would allow a jury find
that the filing of the grievance was a substantial motivating factor in the
decision to impose discipline. Viola v. Bor. of Throop, #3:06cv1930, 2008 U.S.
Dist. Lexis 88176; prior ruling at 2008 U.S. Dist. Lexis 59470 (M.D. Pa.).
Tenth Circuit rejects a suit brought by a former
county employee, claiming that she was fired for her refusal to testify before
the state legislature. The county proved that her position was unnecessary and
that it was not re-staffed after her termination. Benton v. Adams County,
#08-1089, 2008 U.S. App. Lexis 25414 (Unpub. 10th Cir.).
First Circuit recognizes a claim that superiors
retaliated against a detective sergeant for his failure to participate in a
council recall election. Reassigning him to another division was an adverse
personnel action because he lost an additional stipend that accompanied the
detective sergeant position as well as an opportunity to earn overtime. Welch
v. Ciampa, #07-2470, 542 F.3d 927, 2008 U.S. App. Lexis 20485, 28 IER Cases
(BNA) 295 (1st Cir.).
Appellate panel rejects a suit filed by an
at-will probation officer who was fired after she wrote a letter to a judge
that was critical of her supervisor. The letter was a personal grievance, not a
matter of public concern. Miller v. Clinton County, #07-2105, 2008 U.S. App.
Lexis 20682 (3rd Cir.).
Federal court holds that a terminated Kentucky
homeland security civil servant must establish with evidence that her
Democratic affiliation was a substantial or motivating factor in the decision
to terminate her. And if she meets that burden, to avoid liability, the
defendants need to show that they would have fired her anyway, even if she were
a Republican. Back v. Hall, #07-5934/07-5935, 2008 U.S. App. Lexis 17057 (6th
Cir.).
Third Circuit concludes that "truthful trial
testimony arising out of the employee's official responsibilities constitutes
protected speech," spoken as a citizen, and the Garcetti decision does not
apply. The plaintiff had been disciplined for testifying in a trial against
another officer. Reilly v. City of Atlantic City, #06-2591, 2008 U.S. App.
Lexis 13808 (3rd Cir.).
Fifth Circuit finds that there was no evidence to
find that the plaintiff was terminated from his county job because he sought
election as a county commissioner. Rather he was fired for violating county
policies against political campaigning activities while working and under other
limited circumstances. James v. Texas Collin County, #07-40566, 2008 U.S. App.
Lexis 14902 (5th Cir.).
First Circuit rejects a civil rights claim filed
by a police officer who alleged that his superiors violated his First Amendment
and due process rights when he was assigned to new job duties, purportedly in
retaliation for filing a lawsuit against them in a local court. The right to
file lawsuits is not an absolute First Amendment right and his suit for labor
harassment" suit did not address a matter of public concern.
Rosado-Quinones v. Toledo, #07-1425, 2008 U.S. App. Lexis 11835 (1st Cir.).
Seventh Circuit overturns a judgment for $210,000
in compensatory and $150,000 in punitive damages, awarded to a State Police
lieutenant that was laterally transferred because of his criticism of a case
and filing an internal complaint. His statements and reports were made pursuant
to his official duties, and not as a citizen. Callahan v. Fermon, #05-4313,
2008 U.S. App. Lexis 10800 (7th Cir.).
Federal court holds that city police officers
that are fired for cooperating in a state investigation lack First Amendment
protection. Unlike citizens, they have a duty to cooperate. Cheek v. City of
Edwardsville, #06-2210, 514 F.Supp.2d 1220, 2007 U.S. Dist. Lexis 63097
(D.Kan.).
Following the Supreme Court's 5-4 holding in
Garcetti v. Ceballos, 547 U.S. 410 (2006), the Second Circuit rejects a
retaliation lawsuit filed by a NYPD sergeant after he wrote a report about
health concerns at his precinct. He was required to prepare the report in his
role as the precinct Safety Officer, and was not writing as a citizen. Ruotolo
v. City of New York, #06-3886, 2008 U.S. App. Lexis 2551.
A detective filed an I-A complaint and informed
the mayor that other detectives had "filed false or misleading
affidavits" in support of search warrants. He was demoted to the patrol
division, resigned, and sued for First Amendment violations. The Seventh
Circuit rejected his claims. "Because [he] was responsible for the
operations of the narcotics unit, his speech regarding alleged misconduct that
may affect his unit was made pursuant to his official responsibilities, and not
as a private citizen, despite not having explicit responsibility for the
detectives involved or the search warrants at issue." Vose v. Kliment,
#07-1792, 506 F.3d 565, 2007 U.S. App. Lexis 25136 (7th Cir.).
Federal court finds that a sheriff and a captain
violated the "Establishment of Religion" clause of the First
Amendment when they "invited representatives of a Christian organization
to present a proselytizing Christian message to deputies at meetings held at
the workplace during working hours, which deputies were required to attend, and
conveyed a message of endorsement of the presentations. The effect of
defendants' actions was to promote religion and to do so coercively."
Milwaukee Deputy Sheriffs Assn. v. Clarke, # 06-C-602, 513 F.Supp.2d 1014, 2007
U.S. Dist. Lexis 71454, 101 FEP Cases (BNA) 1519 (E.D. Wis.).
Supreme Court declines to review a Seventh
Circuit ruling that vacated a $210,000 verdict in favor of a corrections
officer. She had alleged retaliatory action after she complained that she was
stopped from searching a vehicle that two senior prison officials used to leave
the facility. Her complaint about prison security was not protected under the
First Amendment because of the Supreme Court's decision in Garcetti v.
Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006). Spiegla v. Hull, #05-3722, 481
F.3d 961, 2007 U.S. App. Lexis 7396, 25 IER Cases (BNA) 1508 (7th Cir.); cert.
den. #07-273, 2007 U.S. Lexis 11650.
Eleventh Circuit holds that the termination of a
chief jailer after her testimony about jail conditions was pursuant to her
duties as public employee rather than as citizen on a matter of public concern.
The First Amendment did not protect her testimony, and the sheriff has
qualified immune from her §1983 claim. Supreme Court denies review. Green v.
Barrett, #06-15104, 226 Fed. Appx. 883, 2007 U.S. App. Lexis 6200 (11th Cir.);
cert den. #07-177, 2007 U.S. Lexis 11550 (2007).
The job responsibilities of a corrections officer
include reporting inmate complaints to his superiors, and are not protected by
the First Amendment. Wesolowski v. Bockelman, #1:05-CV-0321, 2007 U.S. Dist.
Lexis 64806 (N.D.N.Y.).
Eighth Circuit finds that the sheriff in St.
Paul, MN, retaliated against officers for their First Amendment conduct by
transferring them from supervisory positions into positions with significantly
less responsibility and causing them to lose overtime pay and access to
take-home vehicles because of their campaign activities. Shockency v. Ramsey
County, #06-3094, 2007 U.S. App. Lexis 16587 (8th Cir.).
Sixth Circuit rejects a claim that the plaintiff
was terminated because of his protected activity as union president; management
discharged him for submitting inaccurate time sheets. The panel concluded that
his union activity did not implicate a matter of public concern. Van
Compernolle v. City of Zeeland, #06-1904, 2007 U.S. App. Lexis 16735 (6h Cir.)
affirming, 2006 U.S. Dist. Lexis 32963 (W.D. Mich. 2006).
Appellate court rejects retaliation claims filed
by police officers that alleged anti-union bias. The failure to promote action
was seven months after participation in a union's petition drive. Harvey v.
City of Rio Rancho, #06-2278, 2007 U.S. App. Lexis 18010 (10th Cir.).
First Circuit holds that a website posting of an
allegedly unlawfully taped police episode was protected by the First Amendment.
Jean v. Massachusetts State Police, #06-1775, 2007 U.S. App. Lexis 14813 (1st
Cir.).
Nebraska trial court overturns an arbitration
award that reinstated a state trooper that was fired for his active membership
in the Klan. State of Nebraska v. Henderson, Lancaster Co. Nebr. Dist. Ct.;
Nebr. Ct. App. #A-07-000010 (Appeal pending).
Fifth Circuit upholds the termination of a county
nurse that was fired for calling the Secret Service to report a mental
patient's threats against the President. Her termination did not violate the First
Amendment because the patient was delusional, she violated by hospital's
confidentiality policy, and the facility's doctor was in a better position to
assess the gravity of the threat and to decide whether the Secret Service
should be notified. Davis v. Allen Parish, #06-30017, 2006 U.S. App. Lexis
31119 (5th Cir. 2006). [N/R]
Federal court refuses to dismiss a First
amendment claim brought by furloughed city workers who claimed that the mayor
retaliated against them for their political activities by not rehiring them.
Cochran v. City of Huntington, #1:05-CV-249, 2006 U.S. Dist. Lexis 71873, prior
ruling at 2006 U.S. Dist. Lexis 39516 (N.D. Ind., 2006). {N/R}
Federal court dismisses a suit by a nurse who
lost her job after prison authorities denied her entry privileges for breaking
a rule. Cunningham v. New Jersey, #03-4970, 2006 U.S. Dist. Lexis 68789 (D.N.J.
2006). [2006 FP Dec]
Whether a public employee's First Amendment
actions were sufficiently disruptive of the office, was a question that was
properly submitted to the jury. Weaver v. Chavez, #04-2110, 2006 U.S. App.
Lexis 20539 (10th Cir. 2006). {N/R}
New York City's termination of a police officer
and firefighters for participating in a parade float that mocked
African-American stereotypes are upheld by the Second Circuit. Locurto v.
Giuliani, #04-6480, 447 F.3d 159, 2006 U.S. App. Lexis 10748 (2nd Cir. 2006).
[2006 FP Aug]
Eleventh Circuit upholds the firing of three
Florida deputy sheriffs for engaging in sexually explicit conduct, available
for "pay-per-view" on the Internet, and without obtaining approval
for off-duty employment. Thaeter v. Palm Beach County Sheriff's Office,
#03-13177, 2006 U.S. App. Lexis 13308 (11th Cir. 2006). [2006 FP Aug]
Federal appeals court rejects a suit by a prison
chaplain who was disciplined after refusing to allow a gay inmate to lead the
choir during a Protestant service. Akridge v. Wilkinson, #05-3015, 2006 U.S.
App. Lexis 10671 (Unpub. 6th Cir. 2006), affirming 351 F.Supp.2d 750. [2006 FP
Jul]
Supreme Court declines to review a holding that
struck down a California law making it a misdemeanor to knowingly file a false
complaint against a peace officer. Agencies in the Ninth Circuit have been
advised by counsel to remove any language from internal complaint forms that
warn a citizen that he or she can be prosecuted for making a false complaint.
Chaker v. Crogan, #03-56885, 428 F.3d 1215, 2005 U.S. App. Lexis 23728 (9th
Cir. 2005); cert. den., #05-1118, 2006 U.S. Lexis 3900 (2006). [2006 FP Jul]
Fourth Circuit upholds a gubernatorial order
banning state workers from giving interviews to two Baltimore reporters.
Publishers and journalists have no greater rights to access than members of the
public. Baltimore Sun v. Ehrlich, #05-1297, 2006 U.S. App. Lexis 3581 (4th Cir.
2006), affirming 2005 U.S. Dist. Lexis 2082 (D.Md. 2005). [2006 FP Apr]
A federal court in Manhattan has ruled that a
denial of Emeritus status to a professor is not an "adverse employment
action" even if it was in retaliation for exercising his First Amendment
rights. The honorary title conferred no benefits; all retired professors
enjoyed office and telephone privileges. Zelnick v. Fashion Institute of
Technology, #03 CV 8210 (Unreported, S.D.N.Y. 2005). {N/R}
Florida Supreme Court strikes down a law
prohibiting the wearing of clothing marked with words 'police', 'sheriff', etc.
Sult v. State of Florida, #SC03-542, 894 So.2d 969,2005 Fla. Lexis 1343 (2005).
[2005 FP Oct]
Judge jails a N.Y. Times reporter who wrote about
the outing of an undercover CIA agent and subsequently refused to disclose her
source to a federal grand jury. Miller v. U.S., 125 S.Ct. 2977, 2005 U.S. Lexis
5190 and Cooper v. U.S., 125 S.Ct. 2977, 2005 U.S. Lexis 5191 (2005), relating
to the Intelligence Identities Protection Act (50 U.S. Code §421); also see In
re Grand Jury Subpoena, #04-3138, 405 F.3d 17 (D.C. Cir. 2005) and In re
Special Proceedings, 373 F.3d 37 (1st Cir. 2004). [2005 FP Sep]
Litigants and counsel have few, if any, First
Amendment rights in a courtroom. "The courtroom is a nonpublic forum ...
where the First Amendment rights of everyone ... are at their constitutional
nadir." Mezibov v. Allen, #03-3973, 2005 FED App. 0264P, 2005 U.S. App. Lexis
11341 (6th Cir. 2005). {N/R}
Eighth Circuit affirms a refusal to dismiss a
lawsuit alleging retaliatory action. Although the sheriff said that he had
demoted a sergeant for improper handling of a traffic citation, the plaintiff
claimed that it was in retaliation for filing a lawsuit challenging the
sheriff's promotional procedures. Powell v. Johnson, #04-1684, 405 F.3d 652, 22
IER Cases (BNA) 1443, 2005 U.S. App. Lexis 7505 (8th Cir. 2005). [2005 FP Jul]
Federal court upholds a gubernatorial order
banning state workers from giving interviews to two Baltimore reporters.
Publishers and journalists have no greater rights to access than members of the
public. The Sun v. Ehrlich, #1:04-cv-03822, 2005 U.S. Dist. Lexis 2082 (D.Md.
2005), citing Snyder v. Ringgold, #97-1358, 1998 WL 13528, 1998 U.S. App. Lexis
562, 26 Media L. Rep. 1249 (Unpub. 4th Cir. 1998) and Branzburg v. Hayes, 408
U.S. 665, at 684-85 (1972). [2005 FP Apr.]
The Supreme Court upholds the termination of a
San Diego police officer who sold masturbation videotapes of himself in a
generic police uniform. City of San Diego v. Roe, #03-1669, 2004 U.S. Lexis
8165 (2004). [2005 FP Feb]
Fire dept's insurance carrier pays $9,000 to a
motorist who flipped his middle finger at the fire chief, resulting in his
arrest for disorderly conduct. Though vulgar, the gesture was protected by the
First Amendment. Dickinson v. Bor. of Sewickley, Pa., #04-CV-602 (W.D.Pa.
2004). {N/R}
Appellate court affirms the dismissal of a police
sergeant's First Amendment suit for retaliation, based on the his testimony at
a public hearing, because the content of testimony was not a matter of public
concern. Kirby v. City of Elizabeth City, #03-2035, 2004 U.S. App. Lexis 17877
(4th Cir. 2004). {N/R}
New Jersey appellate court affirms an order by
the state's Public Employment Relations Cmsn. directing the sheriff to cease
and desist from reassigning and suspending a deputy in retaliation for his
questioning negotiations unit members about drug testing. The disciplinary
actions taken constituted an unfair practice because of the sheriff's hostility
his inquiries. Middlesex Co. Sheriff v. Eckel, #A-57-02T2, 30 NJPER 89, 2004
NJPER (LRP) Lexis 84 (N.J. App.Div. 2004); prior decis. Eckel v. Middlesex Co.
Sheriff, 2003 WL 2367588 (N.J. App.Div. 2003). {N/R}
Eighth Circuit finds that having a prayer session
at a mandatory training program was a decisive endorsement of religion, and
violated the First Amendment rights of a public employee who objected to the
prayers. The appeals panel directed the trial court to widen the injunctive
relief to include training sessions of other public employees, even if the
plaintiff was not present. "...we believe that it is the government's
endorsement of a particular religious message that constitutes the
constitutional violation here, not the effects of official prayers on [the
plaintiff's] psyche. Warnock v. Archer, #02-3322, 2004 U.S. App. Lexis 17938
(8th Cir. 2004). {N/R}
Federal court in Connecticut refuses to grant injunctive
relief to corrections officers facing disciplinary action for their membership
in the Outlaws motorcycle gang. Piscottano v. Murphy, #3:04cv682, 317 F.Supp.2d
97, 2004 U.S. Dist. Lexis 8614 (D. Conn. 2004). [2004 FP Sep]
Second Circuit holds that there was an
insufficient connection between the adverse employment action suffered and the
plaintiffs' protected speech to establish a retaliation claim under the First
Amendment. Washington v. County of Rockland, #02-7929, 2004 U.S. App. Lexis
12845 (2d Cir. 2004). {N/R}
First Circuit holds that police officials failed
to demonstrate that they were entitled to qualified immunity from retaliation
claims of investigators who claimed that they were discharged or denied
benefits because of their investigation of government corruption.
Rivera-Jiménez v. Pierluisi, #02-2439, 362 F.3d 87, 2004 U.S. App. Lexis 5773,
21 IER Cases (BNA) 160 (1st Cir. 2004). {N/R}
California Public Employment Relations Board
judge rules that management violated state law by placing an administrator on
leave and then demoting her, because she testified in support of two
subordinate workers at a grievance hearing, resulting in a back pay award. Cal.
State Employees Assn. v. Dept. of Consumer Affairs, #SA-CE-1385-S, 2004 PERC
(LRP) Lexis 48, 28 PERC 98 (PERB 2004). [2004 FP Aug]
Federal appeals court rejects the retaliation
lawsuit of a police lieutenant who claimed he was transferred to light duty
because he gave negative testimony about the chief of police in another
officer's civil rights trial. The lieutenant did not suffer an adverse
employment action because his lost pay and benefits were retroactively
restored. Mylett v. City of Corpus Christi, #03-40774, 2004 U.S. App. Lexis
8729 (5th Cir. 2004). {N/R}
An en banc Fifth Circuit votes 10 to 5 to allow a
damage suit against police chiefs, sheriffs, their cities and counties, and a
regional chiefs assn. for boycotting the classes of two police academy
instructors who testified against a police officer in a use of force case.
Kinney v. Weaver, #00-40557, 367 F.3d 337, 2004 U.S. App. Lexis 7436 (5th Cir.
en banc 2004). [2004 FP Jul]
Massachusetts holds that management must bargain
with the union before ordering the removal of union buttons from their uniforms,
where officers have worn those buttons for many years without adverse
consequences. The bargaining requirement does not apply to non-union pins or
accoutrements. Sheriff of Worcester Co. v. Labor Relations Cmsn., #01-P-1628,
60 Mass. App. Ct. 632, 805 N.E.2d 46, 2004 Mass. App. Lexis 284 (2004). [2004
FP Jul]
A divided federal appeals court panel concludes
that the First Amendment protects an off-duty police officer, who sold
videotapes of himself stripping out of uniform and masturbating. Roe v. City of
San Diego, #02-55164, 356 F.3d 1108, 2004 U.S. App. Lexis 1330 (9th Cir. 2004).
[2004 FP Apr]
Federal appeals court rejects a retaliation
lawsuit filed by a state police captain who claims he was denied a promotion
and given an unwanted assignment because he broke the chain of command by
bypassing his major, and informing a lieutenant-colonel that the FBI was
investigating a trooper for bribery. The captain had no reason to believe his
superiors were involved in the scheme, and there was no justification for
circumventing a regulation that required all members to inform their immediate
supervisor of any knowledge of misconduct by a department member. Ober v.
Evanko, #02-3725, 2003 U.S. App. Lexis 23040 (3rd Cir. 2003). [2004 FP Feb]
Federal appeals court holds that a police report,
revealing misconduct of a fellow officer, is protected "speech" and
addressed a matter of public concern. Their terminations violated the First
Amendment. Taylor v. Chief of Police Keith, No. 01-6460, 2003 U.S. App. Lexis
15602, 2003 FED App. 0270P (6th Cir. 2003). [2003 FP Nov]
Arbitrator holds that a public employees' union
may post "generic" employment information on workplace bulletin
boards, but not "internal" membership information. Naval Inventory
Control Point and AFGE L-1156, 118 LA (BNA) 695 (Pritzker, 2002). [2003 FP Oct]
Federal appeals court holds that management did
not violate clearly established First Amendment law in suspending a police
officer for his hornblowing activities during a municipal ceremony. The
disruption was not speech or conduct related to a matter of public concern.
Meaney v. Dever, #02-1783, 2003 U.S. App. Lexis 7505 (1st Cir. 2003). {N/R}
Federal appeals court overturns a District Court order
that the CIA was required to release classified matter to a former employee
that sued the agency for supposedly misclassifying as his proposed book as
containing state secrets. Stillman v. C.I.A., #02-5234, 319 F.3d 546, 2003 U.S.
App. Lexis 3437 (D.C. Cir. 2003). {N/R}
Federal appeals court reinstates a damage action
brought by a firefighter who was subjected to an I-A investigation and
transferred to an undesirable assignment after criticizing firefighter safety
gear. Darmanin v. S.F. Fire Dept., #00-16102, 2002 U.S. App. Lexis 19676
(Unpub. 9th Cir. 2002). [2002 FP Dec]
Federal Court in New York refuses to dismiss a
wrongful termination suit. Plaintiff was promptly and pretextually fired after
testifying against the county in another lawsuit. Catletti v. County of Orange,
#01 Civ 8530, 207 F.Supp.2d 225, 2002 U.S. Dist. Lexis 11326 (S.D.N.Y. 2002).
[2002 FP Nov]
Opening a city council meeting "in the name
of Jesus Christ" violated the Religion clause of the First Amendment.
Rubin v. City of Burbank, #B148288, 124 Cal.Rptr.2d 867, 2002 Cal. App. Lexis
4619 (Cal.App. 2d Dist. 2002). {N/R}
A divided Fifth Circuit allows a damage suit
against police chiefs, sheriffs, and their cities and counties for boycotting
the classes of two police academy instructors who testified against a police
officer in a use of force case. Kinney v. Weaver, #00-40557, 2002 U.S. App.
Lexis 15349 (5th Cir. 2002). [2002 Oct. FP]
First Amendment Related California appellate
court holds that a youth, who drew a painting of him shooting a particular
Chico Police officer, is protected speech, and overturned a conviction for
making a criminal threat. In re Ryan D., #C035092, 209 F.Supp.2d 319, 2002 Cal.
App. Lexis 4453 (Cal. App. 3d Dist. 2002). [2002 FP Oct]
Third Circuit affirms injunction against a
police chief who required subordinates to obtain his approval before appearing
as an expert witness in civil or criminal cases, even if uncompensated.
Swartzwelder v. McNeilly, #01-1085, 2002 U.S. App. Lexis 14556 (3rd Cir. 2002).
[2002 FP Sep]
Federal appeals court affirms the dismissal of a suit
brought by a former sergeant, who alleged that he was demoted because of his
membership in a controversial motorcycle club. There was no evidence the
demotion, based on valid rule violations, was pretextual to punish him for his
associational activities, or that the sheriff had been improperly influenced by
the sergeant's superiors. Strahan v. Kirkland, #01-15493, 287 F.3d 821, 2002
U.S. App. Lexis 7214 (9th Cir. 2002). [2002 FP Jul]
A Chief Deputy Probation Officer, who claimed
retaliation after he filed a discrimination lawsuit, did not suffer any
"adverse personnel action" when his superior limited his duties.
"... minor shifts in employment responsibility did not significantly alter
the conditions of [the plaintiff's] employment." Duffy v. McPhillips,
#01-1747, 276 F.3d 988, 87 FEP Cases (BNA) 1461, 2002 U.S. App. Lexis 554 (8th
Cir. 2002). [N/R]
Federal court refuses to dismiss a suit that
management punished a police captain because she had testified, under subpoena,
on behalf of a subordinate who was indicted for brutality to a suspect. Dooley
v. City of Philadelphia, #99- 2764, 153 F.Supp.2d 628, 2001 U.S. Dist. Lexis
7437 (E.D. Pa. 2001). [2001 FP 168-9]
Although an officer had testified against his
superior at a grand jury, his termination was justified because he used
excessive force in arresting a suspect while on his off-duty security job.
Gonzales v. Dallas County, #00-10046, 249 F.3d 406, 2001 U.S. App. Lexis 8088, 143
Lab. Cas. (CCH) P59,213 (5th Cir. 2001). [2001 FP 102-3]
Federal appeals court rejects suit by an activist
who was banned from a city facility because of her rude and disruptive
behavior. Mcafee v. Deale, #99-2361, 2000 U.S. App. Lexis 21411 (4th Cir.).
[2000 FP 170]
Federal appeals court rejects a First Amendment
claim by a police union steward that her notices were removed from a
stationhouse bulletin board. Kuchenreuther v. City of Milwaukee, #99-3611, 221
F.3d 967, 2000 U.S. App. Lexis 17441 (7th Cir.). [2000 FP 152-3]
Federal court refuses to dismiss suit of
ex-officer who claimed he was fired for cohabitation. Marcum v. Catron, 70
F.Supp.2d 728, 1999 U.S. Dist. Lexis 21005 (E.D.Ky.). [2000 FP 71-2]
Federal appeal court holds that the termination
of a public employee because his wife had filed a lawsuit against public
officials violates the First Amendments right to have intimate associations.
Adler v. Pataki, 185 F.3d 35, 1999 U.S. App. Lexis 16687, 15 IER Cases (BNA)
490 (2nd Cir.). [2000 FP 53-4]
Federal appeals court upholds right of a rival
organization of minority police officers to march in parades and use department
facilities to post notices and recruit members. Latino Ofcrs. Assn. v. City of
N.Y., #99-7657, 196 F.3d 458, 15 IER Cases (BNA) 1249, 1999 U.S. App. Lexis
29970 (2nd Cir.). [2000 FP 9-10]
A retaliatory lowering of promotion scores for
exercising their First Amendment rights is a federal Civil Rights violation,
even if no one else was promoted. Plaintiffs did not have to show actual
economic harm. Suppan v. Dadonna, #98-2129, 203 F.3d 228, 2000 U.S. App. Lexis
1443, 68 Law Week 1474 (3d Cir. 2000). {N/R}
A reprimand of a deputy sheriff for appearing on
TV in uniform without the sheriff's approval did not violate the First
Amendment. Belch v. Jefferson Co., 108 F.Supp.2d 143. {N/R}
Federal court in MN sets aside discipline imposed
on corrections officers who, during a sexual orientation training session,
protested the content by bible-reading. Altman v. Minn. Dept. of Corrections,
#98-CV-1075, 1999 U.S. Dist. Lexis 14897, 80 FEP Cases (BNA) 1166 (D. Minn.,
8/9/99). [1999 FP 152-3]
Federal appeals court upholds a claim against a
fire chief, who allegedly assaulted a captain for having a political sign on
his car. Coady v. Steil, #98-3569, 187 F.3d 727, 1999 U.S. App. Lexis 18655
(7th Cir.). [1999 FP 152-3]
An unsuccessful woman candidate for Texas Ranger
loses her federal appeal; she failed to show that she had participated in any
activities for which she had been denied a pro-motion. The fact others may have
mistaken her for an active feminist offered no First Amendment protection.
Steadman v. Texas Rangers, #97-20862, 179 F.3d 360, 1999 U.S. App. Lexis 14972,
15 IER Cases (BNA) 404. [1999 FP 153-4]
Divided appellate court affirms arbitration award
reinstating a corrections officer who flew a Nazi flag at his home. Arbitration
bet. N.Y. St. Law Enf. Off. Union and New York, 255 A.D.2d 54, 694 N.Y.S.2d
170, 161 LRRM (BNA) 2268, 1999 N.Y.App.Div. Lexis 4424. [1999 FP 101-2]
Although management can generally deny a
noncertified employee assn. the privilege of using its bulletin boards, a
federal court in NYC has held that management may not withhold the privilege
because of the content of the messages. Latino Ofcrs. Assn. v. City of N.Y.,
1998 U.S. Dist. Lexis 2018 (S.D.N.Y.). [1999 FP 72]
Federal appeals court reverses a trial judge who
had overturned a ban on the use of state computers to access porn sites on the
Internet. Urofsky v. Allen, #98-1481, 1999 U.S. App. Lexis 1937, 167 F.3d 191,
14 IER Cases (BNA) 1386 (4th Cir.). [1999 FP 56]
Private sector worker who was fired because she
had testified against police officers, could sue the city manager who had
pressured her superior to terminate her. Helvey v. City of Maplewood, #97-2474,
154 F.3d 841, 1998 U.S. App. Lexis 21481, 14 IER Cases (BNA) 559 (8th Cir.).
[1999 FP 40-1]
NYC Police officer and two firefighters are
terminated for their appearance on a racially-offensive Labor Day parade float.
City of N.Y. v. Steiner, Walters, and Locurto (1998). [1999 FP 23]
Federal appeals court affirms the termination of
a corrections officer because of his Klan membership activities. Weicherding v.
Riegel, #97-3991, 160 F.3d 1139, 1998 U.S. App. Lexis 28216. [1999 FP 8-9]
Police chief did not violate an officer's rights
when he read entries in his personal diary, or in retaining the diary for 3
months while evaluating the officer's fitness. Entries concerning other officers
did not implicate a matter of "public concern" for the purpose of
First Amendment protections. Verri v. Nanna, 972 F.Supp. 773 (S.D.N.Y. 1997).
{N/R}
Federal court enjoins transit authority's ban of
union buttons on uniformed N.Y. Transit Authority employees. Scott v. Goodman,
961 F.Supp. 424 (E.D.N.Y. 1997). [1998 FP 22]
Detectives who were demoted for supporting a
fellow officer on trial for criminal charges did not have a basis under the 1st
Am. to contest their reductions. Professional friendship between officers is
not protected by the Amendment and this was not a matter of public concern.
McCusker v. Atlantic City, 959 F.Supp. 669 (D.N.J. 1997). {N/R}
Arbitrator reinstates corrections officer who was
suspended for flying a Nazi flag at his home. Albany NY Times-Union, Page B-2
(6/25/97). [1997 FP 167]; affirmed, 1999 N.Y. App. Div. Lexis 4424.
Internet indecency law struck down by the Supreme
Court. Reno v. ACLU, 117 S.Ct. 2329 (1997). {N/R}
Ninth Circuit applies a "public concern"
test to grievances and litigation brought by public employees, similar to that
required in Free Speech cases. Even if a subject of public concern, an employee
is not entitled to disrupt the workplace and create dissension. Rendish v. City
of Tacoma, 97 Cal.Dly.Op.Srv. 6622, 1997 U.S.App. Lexis 22247 (9th Cir.). [1997
FP 151-2]
Appellate court upholds termination of NYPD
officer who posed in the nude for compensation; she also used her uniform
without permission in the display. The fact male officers who have engaged in
sexual misconduct were not fired was inapplicable here. Shaya-Castro v. N.Y.C.
Police Dept., 649 N.Y.S.2d 711 (A.D. 1996). [1997 FP 57]
Vendor drops suit challenging the National Fire
Academy's ban of on-campus sales of sexually suggestive T-shirts. Morris v.
Brown, #95-592 (D.Md. 1995). [1996 FP 5]
Federal court holds that a Park Service ban on
the sale message-bearing T-shirts on National Mall does not further a
governmental interest. Friends of the Vietnam Memorial v. Kennedy, 64 LW 2187
(D.D.C. 1995). {N/R}
The First Amendment did not permit an off duty
officer to attend a Halloween party in blackface carrying a watermelon. Tindle
v. Caudell, 56 F.3d 966, 10 IER Cases (BNA) 1227 (8th Cir. 1995). [1995 FP 151]
Township board did not retaliate against a
terminated police officer for engaging in protected speech. Van Richardson v.
Burrows, 885 F.Supp. 1017 (N.D.Ohio 1995). {N/R}
Police chief did not violate the civil rights of
police officers who were sent to the U.S. Capitol as part of a demonstration in
support of an assault weapons ban. Donaggio v. Arlington County, 10 IER Cases
(BNA) 740, 880 F.Supp. 446 (N.D. Va. 1995). [1995 FP 102-3]
Federal court dismisses suit by a former
probation officer who was terminated after she married a deputy sheriff.
Rosenbarger v. Shipman, 857 F.Supp. 1282 (N.D.Ind. 1994). {N/R}
Private taxpayer loses his suit to require the
police chief to reimburse the county for an expenditure of overtime of officers
used to lobby for passage of the assault weapons ban. Blackman v. Stover, Arl.
Co. Chancery #94-659 (Va.Cir. 1994). [1995 FP 103]
Federal court overturns L.A.Co.F.D. ban on
reading Playboy while on duty. Dept's interest in preventing "negative
feelings towards female coworkers" was an insufficient basis for
censorship. Johnson v. Co. of Los Angeles, 66 FEP Cases 105, 865 F.Supp. 1430
(C.D.Cal. 1994). [1995 FP 24-5]
Federal court rejects suit by police union
officials who claimed they were unfairly disciplined for an unlawful
demonstration. Caruso v. Kelly, 1994 U.S.Dist. Lexis 9459 (S.D.N.Y.). [1995 FP
25] Affirmed (unpub. opin.) 1995 U.S.App. Lexis 28908 (2nd Cir. 1995); cert.
den., 134 L.Ed.2d 471, 1996 U.S. Lexis 1966 (1996).
Federal court confirms the termination of a
police officer for distributing hate literature aimed at blacks and Jews, lying
about his affiliation with the Klan, selling tickets to Klan-sponsored
functions, and depositing the ticket proceeds into his personal account, all of
which violated departmental policy. See Young v. McDaniel, 664 F. Supp 263, 265
(W.D. Ky. 1986). Later, a federal appeals court upheld his rejection for
reemployment for untruthfulness and conduct unbecoming a police officer. Young
v. City of Louisville, 1993 U.S. App. Lexis 22647 (Unpub., 6th Cir.). [1993 FP
167]
Federal court in Colo. holds that it was not a
violation of Title VII to terminate an employee for membership in the Ku Klux
Klan and attending an "Adolph Hitler Rally." Slater v. King Soopers
Inc., 60 FEP Cases (BNA) 963 (D.Colo. 1992). {N/R}
Racial disparity and treatment of employees in
the disciplinary process was not a concern communicated to police employees, as
required to support a claim the plaintiffs" speech involved a public
concern protected by the First Amendment. To trigger the First Amendment, the
speaker must be acting primarily as a citizen, and not as an employee. Evans v.
City of Indianola, 778 F.Supp. 333 (N.D. Miss. 1991). {N/R}
Appellate court upholds misconduct conviction of
a military policeman who blew his nose on the American flag while serving on a
flag-raising detail. Conduct was not protected by the First Amendment. United
States v. Wilson, 33 M.J. 797 (ACMR 1991). [1992 FP 6]
A municipal employee who blows the whistle on
corruption is deprived of his federally protected civil rights if promotions
are denied him in retaliation. Wetzel v. Hoffman, 928 F.2d 376 (11th Cir.
1991). [1992 FP 57]
Police officer who was denied permission to sing
in blackface settles his claim of managerial harassment for $200,000. Police
Department order forbidding officer to sing in public "Jolson
blackface" overturned. Berger v. Battaglia, 779 F.2d 992 (4th Cir., 1985).
Police officer did not have the right to bring a
suit against the municipality without disclosing his true name; John Doe
complaints, when allowed by the courts, must be based on a motion giving
compelling reasons for anonymity. Doe v. Bor. of Morrisville, 130 F.R.D. 612
(E.D. Pa. 1990).
Investigator applicant wrongfully rejected
because he had previously informed on alleged wrongdoing of government
officials. Hubbard v. Administrator, E.P.A. 735 F.Supp. 435 (D.D.C. 1990).
Untenured police chief who was fired after he
initiated an investigation of members of the city council could sue for a
violation of his First Amendment rights. Fairbanks v. City of Bradenton Beach,
733 F.Supp. 1447 (M.D. Fla. 1989).
Police chief could not require off-duty
officers to remove sexually explicit films from the video store they lawfully
operated. Glanagan v. Munger, 890 F.2d 1557 (10th Cir. 1989).
Whistle-blowing action by police officers
disrupted dept. efficiency; officers motivation was also a personal grudge.
Suit against city and officials dismissed. Perry v. City of Kinloch, 680
F.Supp. 1339 (E.D. Mo. 1988).
Termination of officers for union activity
reversed by court; back pay awarded. Camp Hill Borough v. Commonwealth Labor
Rltns. Bd., 507 A.2d 1297 (Pa. Cmwlth. 1986).
Captain could be fired for keeping a secret diary
on his chief's performance; not a matter of free speech. Terrell v. University
of Texas System Police, 792 F.2d 1360 (5th Cir. 1986).
Officer, denied promotion and transferred for
exposing cover-up, awarded $50,000 compensatory and $250,000 punitive damages
against chief. Martinez v. Vigil, (unreported) U.S. Dist. Ct., Albuquerque, NM
(11/4/86).
Police Dept. could not terminate female officer
because she posed in the nude for obscene magazines before she was hired. Borges
v. McGuire, 107 A.D.2d 492, 487 N.Y.S.2d 737, 1985 N.Y. App. Div. Lexis 49770.
{AELE Ref. #5570}
Deputy suspended for giving photos of "sex
party" to TV station with intent to embarrass his chief deputy. City and
County of San Francisco Sheriff's Dept. v. McMurtry, (March, 1986). [Vol. 137
FP 7]
Sheriff could terminate employee who was an
active participant in Klan activities; first amendment outweighed. McMullen v.
Carson, 754 F.2d 936 (11th Cir. 1985).
Back pay and legal fees awarded sergeant who was
demoted for legitimate labor union activities. Henneberque v. City of Culver
City, 194 Cal.Rptr. 869, Mod. 218 Cal.Rptr. 704 (App. 1985).
Supreme court upholds right of government to
regulate clothing of uniformed personnel; Air Force rabbi could not wear a
yarmulke. Goldman v. Weinberger, 106 S.Ct. 1310 (1986).
Federal appeals court upholds damages and
reinstatement claims of black officers who were fired for removing U.S. flag
from their uniforms and picketing; 12 years of backpay for 6 appellants.
Leonard v. City of Columbus, 705 F.2d 1299, reh. en banc denied, 716 F.2d 914
(11th Cir. 1983).
Police chief terminated after he joined Fraternal
Order of Police; appellate court defines respective rights. Key v. Rutherford,
645 F.2d 880 (10th Cir. 1981). Firefighters not entitled to wear uniforms
off-duty to publicize political views. Detroit Fire Fighters Assn. v. Dixon,
572 F.2d 557 (6th Cir. 1978); see also: Tinker v. Des Moines, 393 U.S. 503, 89
S.Ct. 733 (1969); Detroit Fire Fighters Assn. v. City of Detroit, 508 F.Supp.
172 (E.D. Mich. 1981).
Federal courts should refrain from deciding First
Amendment issues until legality of discharge procedure determined. Wilson v.
Robinson, 668 F.2d 380 (8th Cir. 1981).
Volunteer fire department not a public agency for
public employment purposes; member loses suit for reinstatement based on First
Amendment grounds. Janusaitis v. Middlebury Vol. Fire Dept., 464 F.Supp. 288
(D. Conn. 1979), affirmed 607 F.2d 17 (1979).
Federal court enjoins departmental ban on union
meeting called to hear views of election candidates. Fraternal Order of Police
Lodge 74 v. Village of Buffalo Grove, U.S. Dist. Ct. (N.D. Ill. 1979).
First Amendment protects employees from demotion
from untenured positions. Morris v. City of Kokomo, 381 N.E.2d 510 (Ind.App.
1978).
Union slowdown letter not protected. Broyles v.
Baton Rouge Municipal Fire and Police Civil Service Board, 340 So.2d 349 (La.
App. 1976).
Police officer could not be terminated for taking
part in anti-police demonstrations that when he was a college student. Purdy v.
Cole, 317 So.2d 820, 1975 Fla. App. Lexis 13837. {N/R}
First Amendment's Freedom of Association Clause
protects a practicing nudist, who was rejected for employment as a police
officer. Bruns v. Pomerleau, 319 F.Supp. 58, 1970 U.S. Dist. Lexis 9814 (D. Md.
1970). {N/R}
Note: A comprehensive discussion of the law
involving the First Amendment rights of police officers to participate in
activities of hate groups is found at 81 Iowa L. Rev. 1079 (1996). "Blue
by Day and White by Knight: Regulating the Political Affiliations of Law
Enforcement and Military Personnel."
See also: Associating With
Known Criminals, Disciplinary Offenses; Disciplinary Punishment; Free
Speech; Patronage Employment; Political Activity; Transfers
and Union Activity.
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