By Lorene D. Park, J.D. Reversing summary judgment against the First Amendment retaliation claim of a city employee who was allegedly fired for planning to testify in a lawsuit against the city relating to age discrimination, the Ninth Circuit held that he engaged in speech as a citizen because his sworn statements were outside the scope of his ordinary duties and were on a matter of public concern. Moreover, the ADEA’s retaliation provision did not preclude his Section 1983 First Amendment retaliation claim, given the disparities between the rights and protections of the two statutory schemes. Judge Fernandez dissented, finding that under circuit precedent, the ADEA precludes age discrimination in employment claims, even those seeking to vindicate constitutional rights, under Section 1983 (Stilwell v. City of Williams, August 5, 2016, Friedland, M.). Discouraged from testifying in ADEA suit. The employee became the Superintendent of the water department of the City of Williams, Arizona in 1991. In August 2009, he signed a sworn statement supporting an ADEA retaliation claim by the city’s former human resources director. Later that month, a formal disclosure of his involvement as a witness was served on the city and its assistant city manager. The assistant city manager allegedly took numerous negative actions that the employee characterized as retaliatory, including negative comments in emails attacking the employee’s job performance. In December 2009, the assistant city manager became the interim city manager and he discouraged the employee from testifying in the HR director’s suit. Terminated. In the fall of 2010, as the date approached for the employee’s testimony, the topic was broached by another city department head and the employee said he would tell the truth, including how the interim city manager had retaliated against the former HR director. In October 2010, the city manager continued to criticize the employee’s performance. At one point, he sent the city council a memo accusing the employee of neglecting security concerns at the water plant. The employee was placed on administrative leave pending an investigation, and in January 2011, he was fired. He filed suit alleging retaliation in violation of the ADEA and the First Amendment. Granting summary judgment for the defendants on the Section 1983 First Amendment claim, the district court found it precluded by the retaliation provision of the ADEA. Protected speech. Reversing, the Ninth Circuit first rejected the city’s argument that the employee’s speech was not protected by the First Amendment. Citing to Lane v. Franks, the appeals court explained that the employee’s sworn statement and imminent testimony were outside the scope of his ordinary job duties and were on a matter of public concern. The fact that he submitted only an affidavit and ultimately did not have to testify in court did not foreclose First Amendment protection. ADEA did not foreclose Section 1983 claim. The appeals court next addressed whether the employee’s Section 1983 claim was precluded by the enactment of the ADEA. It noted that despite Section 1983’s broad working, its availability as a remedy for violations of federal statutory or constitutional rights may be foreclosed if Congress enacts a statutory scheme indicating an intent to preclude Section 1983 suits. Reviewing several Supreme Court cases for guidance, it was clear to the court here that "when Congress creates a right by enacting a statute but at the same time limits enforcement of that right through a specific remedial scheme that is narrower than §1983, a § 1983 remedy is precluded. This makes sense because the limits on enforcement of the right were part and parcel to its creation. When a right is created by the Constitution, however, and a statute merely recognizes it or adds enforcement options, the analysis differs." In that situation, "if the statute’s rights and protections diverge in ‘significant ways’ from those provided by the Constitution, a § 1983 remedy is not precluded." Here, as between the ADEA retaliation provision and Section 1983, the appeals court found differences in who may sue and be sued. For example, the ADEA does not allow suits against individuals but Section 1983 does. In addition, there are differences in how liability is established. For one thing, the burden of proof on causation was greater for an ADEA plaintiff than for a plaintiff bringing a First Amendment retaliation claim. There was also a difference in the requirements for establishing liability. Moreover, the remedies available to individuals suing under the ADEA’s retaliation provision and Section 1983 are different. For example, ADEA plaintiffs can recover lost wages and liquidated damages but not damages for emotional pain and suffering, the latter of which are available in Section 1983 suits. These disparities between the provisions at issue—in particular those that demonstrate the ADEA’s protections are narrower than those guaranteed by the Constitution—were sufficient to lead the Ninth Circuit to conclude that, unless Congress manifested a clear intent to do so, Section 1983 First Amendment retaliation suits are not precluded. And there was no express statement of preclusion in the text of the ADEA that would suggest Congress affirmatively intended to preclude such Section 1983 suits relating to speech about age discrimination. Senate and House Reports on the ADEA also offered no reason to believe there was such an intent. The conclusion that Section 1983 First Amendment retaliation suits are not precluded by the ADEA’s retaliation provision was also consistent with the tendency of courts to conclude that there is a lack of preclusion when the right to be enforced (here free speech) is subject to heightened scrutiny. Based on the foregoing, summary judgment was reversed.
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