Defense Digest

The First Admendment's Rising Popularity In Municipal Employment Litigation
By Patricia A. Monahan, Esq.*

When no other protection is available for a governmental employee, the First Amendment can become a vehicle for the employee to seek redress of termination or other alleged adverse employment conditions.   A First Amendment claim may be difficult to get dismissed on summary judgment because it centers on the employer's motivation, which is generally a dispute of fact.  Such a claim may often include conspiracy-type allegations where testimony of many individuals is involved, which is not only expensive, but exposes a defendant to significant potential inconsistencies in its defense.  First Amendment claims can stand alone, or they may be accompanied by state or federal whistleblower claims.  The employee's burden of proof and the employer's defenses are strikingly similar under both types of claims.

Municipal officials and solicitors should not overlook First Amendment issues that may arise within an employment context.  "A public employee has a constitutional right to speak on matters of public concern without fear of retaliation."  Baldassare v. New Jersey, 250 F.3d 188, 194 (3rd Cir. 2001).  Protected speech does not have to arise during the course and scope of the employee's employment.  "Even though the government may discharge a public employee for speech not touching upon a matter of public concern…the government as sovereign may not sanction the [public employee] when she engages in such speech as a citizen, outside the employment contacts."  Brennan v. Norton, 350 F.3d 399, 412 citing Azzaro v. County of Allegheny , 110 F.3d 968, 976 n.3 (3rd Cir. 2003).  It is optimal to be on the offensive rather than the defensive when an employee seeks First Amendment protection.  It is not uncommon for an employee who anticipates an adverse employment action to assert some form of protected public speech or engage in protected activity and later claim that the disciplinary action was retaliatory rather than for the legitimate reasons that the employer may proffer.

Political patronage cases that invoke the First Amendment are usually the first type of First Amendment claim that comes to mind, and those remain popular.  Only high-ranking governmental officials can be terminated or otherwise disciplined for political activity.  See Elrod v. Burns, 96 S.Ct. 2673 (1976), and Branti v. Finkel , 100 S.Ct. 1287 (1980). 

More and more cases involving public criticism are being filed.  These situations can lead to claims that legitimate employment actions were retaliatory.  Thus, a First Amendment claim emerges, one that can be filed against individual public officials seeking compensatory and punitive damages and, of course, attorney fees under Section 1983.

It is relatively easy to fail to recognize the pitfalls of a potential First Amendment and/or whistleblower claim.  For example, a municipal employee who is in a preliminary probation period prior to union admission can be dismissed at-will.  The employer may ignore threats that fall within First Amendment protection, believing that, because the employee serves at-will, he or she has no recourse.  The union employee who serves subject to the terms and conditions of a collective bargaining agreement has remedies for adverse employment action contained therein, which lead to arbitration.  The employer may mistakenly assume that arbitration is that employee's sole remedy.  A part-time police officer has no civil service protection or statutory protection under the Police Tenure Act (53 P.S. §§811, et seq.).  Most municipal employees serve without a contract of employment (oftentimes because entering into a contract may be ultra-vires).  A police chief may have no statutory protection to his rank. All of these employees are nevertheless entitled to seek reparation through the courts for First Amendment infringements. Thus, the traditional thinking that these categories of employees who have no remedy because they serve at-will, or that they have only one remedy under a CBA, must be revised.

The types of adverse employment action that can give rise to a First Amendment claim are not limited to termination.  Employment decisions such as hiring, rehiring, transfers, and promotions are actionable.  Rutan v. Republican Party of Ill , 110 S.Ct. 2729 (1990).

A plaintiff can assert a hostile work environment claim violative of the First Amendment by showing that a campaign of retaliatory harassing conduct would "deter a person of ordinary firmness from exercising his First Amendment rights."  Shehee v. City of Wilmington, 67 Fed. Appx. 692, 694 (3rd Cir. 2003).

Defending these claims should begin prior to suit.  The municipal employer should have documentary evidence to support legitimate disciplinary action, and everyone who votes on the disciplinary action should be aware of the reasons for it, even if they are relying upon a committee that conducted the investigation.  An employment law attorney's advice during the course of the investigation and discovery action could be of great assistance to the employer and in the best-case scenario could result in the avoidance of litigation.

The First Amendment considerations that arise during the course of these kinds of cases abound.  The municipality must consider not only the First Amendment rights of the employee accuser, but also the rights of the accused.  For instance, although a municipal supervisor is prohibited from certain conduct violative of Title VII and other employment statutes, pure speech that does not rise to the level of such prohibited conduct, no matter how offensive, is afforded First Amendment protection.  Saxe v. State College Area School District , 240 F.3d 200 (3rd Cir. 2001).  In other words, unless the speech evidences a discriminatory employment action, it is protected.  The employer must thereby recognize the rights of the municipal officials who are the "targets" of an employee's speech to speak publicly in support of their defense.  In fact, their First Amendment rights could be used to defend against the employee's claim. 

In a Section 1983 First Amendment case, a three-step test is used to balance the public employee's First Amendment rights against the competing interests of the employer.  A plaintiff first must establish that the activity in question was protected.  The speech must involve a matter of public concern.  The first prong is satisfied if the speech "can be fairly considered as relating to any matter of political, social or other concern to the community."  Baldassare, 250 F.3d at 195.  This determination is a question of law for the court.  Next, the plaintiff must show that his interest in the speech outweighs any injury to the public employer.   This is also a matter of law for the court.  Id. at 197.  In the third step, if it is shown that a public employee's speech is a matter of public concern and the balance of harm weighs in favor of the employee's expression, then the plaintiff must show that the protected activity was a "substantial or motivating factor in the alleged retaliatory action."  Id. at 195.  If a plaintiff meets those three hurdles, the public employer can still rebut the claim by showing that it would have reached the same decision, even in the absence of the protected conduct.  Whether the employer can meet its affirmative defense is a factual issue.  Brennan , 350 F.3d 399, 414.

The defendant can poke holes in the plaintiff's case by showing that the plaintiff cannot meet his burden of proving retaliation.  It can show lack of causation between the protected speech or conduct and the employment action.  It can show that the protected activity was not made in good faith.  In considering the timing of the alleged retaliation to the protective conduct, courts have held that the timing must be "unusually suggestive" of retaliatory motive before a causal link will inferred.  Krause v. American Sterilizing Co., 126 F.3d 494, 503 (3rd Cir. 1997).   The employer also has the affirmative defense that, even if a plaintiff can show the employer's motivation was unlawful, the employment action would have been taken regardless.  For example, the police officer who speaks out against the mayor can still be terminated for legitimate reasons.  He does not have carte blanche on the job simply because protected speech or activity was engaged in.  The employee who can no longer perform his job without reasonable accommodations can still be terminated.  The affirmative defense is also available under the state Whistleblower Act.  See Watson v. City of Philadelphia , 638 A.2d 489 (Pa. Commw. 1994).

Although it may seem to the municipal employer that it is relatively effortless for an employee's First Amendment claim to get to court and stir up plenty of expensive discovery and pretrial litigation, it is not so easy for the employee to ultimately prevail at trial, given his burden of proof that a protected activity led to an adverse employment action.  An articulately presented defense can satisfy the employer's burden of proving that the action would have been taken in the absence of the protected activity, thus precluding the employee from recovery.   The best evidence to support the employer's affirmative defense will be that which is gathered prior to suit when the counseled and educated employer is hopefully able to navigate the initial minefield that can begin when the employee engages in protected activity or speech.  It is not surprising that the best defense begins with a good offense to an employee's potential litigious path.

* Trish, a shareholder in our Pittsburgh, PA office, can be reached at (412) 803-1151 or pmonahan@mdwcg.com.