Free Speech Tension between Public Employers and Employees

A recent ruling by the Court of Appeals for the First Circuit provides considerable insight into the dynamic between public sector employers and employees when one’s freedom of expression is at stake. In Delaney v. Town of Abington, No. 16-2308, — F.3d —, 2018 WL 2077267 (1st Cir. May 4, 2018), the court considered the appeal of a police officer who vocally opposed his department’s policy and claimed that he suffered retaliation in response. The plaintiff asserted whistleblower and civil rights claims under state and federal law and alleged that the defendants—the police department and three of his superiors—retaliated against him for his objections to the department’s traffic ticketing policies as well as for his union activities. The defendants removed the matter to federal district court and eventually prevailed on summary judgment. The First Circuit affirmed, principally on account of the tenuous connections between the plaintiff’s claims and the evidence developed in discovery.

The suit arose out of what the plaintiff dubbed the “Money Ticket Quota System,” whereby the police department required patrol officers to issue more money cautions than warnings. The plaintiff, who became president of the patrolmen’s union during the period at issue, expressed first to his superiors and then to the town and the Massachusetts Attorney General’s Office his contention that the system was illegal. In the plaintiff’s view, he properly exercised his First Amendment rights in his resistance to orders that violated statute, case law, and department policy. Nothing came of his complaints, however, and the plaintiff alleged that he was subjected to adverse employment actions such as reprimands and unfavorable assignments as a result. The defendants maintained that the plaintiff failed to identify sufficient competent evidence for the case to reach a jury.

Despite the plaintiff’s arguments that genuine issues of material fact existed to preclude summary judgment, the court repeatedly endorsed the district court’s findings that the supposed retaliatory acts were benign, unsubstantiated, or lacking a nexus with the plaintiff’s complaints regarding the policy. In particular, the court pointed out that, even where a public employer lacks justification for certain actions, its employee nonetheless must show a causal connection between the alleged retaliatory action and the protected expression. In doing so, the court emphasized that not every action a public employer takes to the distaste of an employee constitutes the kind of adverse employment action that can ground a First Amendment retaliation claim. The court also expressed skepticism for the proposition that an employer’s knowledge of an employee’s protected expression may be inferred from the temporal proximity of an adverse employment action.

At the outset, such a case could be fairly regarded as fact-intensive and dependent on competing accounts of individual parties and non-parties alike—and thus not amenable to disposition on summary judgment. However, in construing state and federal law in the context of public employment, the district and circuit courts clearly signaled that weak factual bases and tenuous theories of causation would not suffice to bring a case to a jury. Consequently, it is imperative that entities facing such suits are prepared from the inception of litigation to conduct discovery with an eye toward effective motions practice to avoid the cost and uncertainty of trial. Our attorneys are seasoned in all phases of litigation in diverse forums, and are therefore well-equipped to navigate this process efficiently. 

Photo Credit: The Patriot Ledger