Employer’s mistaken belief in employee’s protected activity enough for First Amendment retaliation claim
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Thursday, April 28, 2016

Employer’s mistaken belief in employee’s protected activity enough for First Amendment retaliation claim

By Lorene D. Park, J.D. Reversing summary judgment against the First Amendment retaliation claims of a police officer demoted after he was seen holding a campaign sign—he was getting it for his bedridden mother, not himself—the Supreme Court held that when an employer demotes an employee out of a desire to prevent him from engaging in protected activity, the employee may bring a challenge under the First Amendment and Section 1983 even if, as here, the employer’s actions were based on a factual mistake about the employee’s behavior. The case was remanded for the lower courts to determine, in the first instance, whether the policy under which the employee was demoted violated the Constitution. Dissenting, Justice Thomas, joined by Justice Alito, found that the employee’s claim failed because he admittedly was not associating with the campaign nor communicating support for a candidate, so there was no violation of his constitutional rights (Heffernan v. City of Paterson, New Jersey, April 26, 2016, Breyer, S.). Demoted for picking up political sign. The long-time city police officer had received various commendations over the years and a promotion to detective. Both the chief of police and the employee’s supervisor had been appointed by the incumbent mayor, who was running for re-election against the former police chief, who was the employee’s good friend. The employee did not work on the campaign and did not consider himself "politically involved." However, as a favor to his bedridden mother, he agreed to pick up and deliver to her one of the former chief’s campaign signs. Other officers observed him speaking to campaign staff at the distribution point while holding a yard sign and word quickly spread throughout the force. The next day, his supervisors demoted him from detective to patrol officer as punishment for his "overt involvement" in the campaign. Lower court proceedings. The employee filed suit under 42 U.S.C. §1983, claiming the police chief and other defendants demoted him because, in their mistaken view, he engaged in conduct that constituted protected political activity. The district court, however, found that he had not engaged in any First Amendment conduct. Affirming, the Third Circuit concluded that the employee’s claim would only be actionable under Section 1983 if his employer’s action was prompted by his actual, rather than his perceived, exercise of his free-speech rights. Here, because he repeatedly disavowed an intent to convey a message and denied being "politically involved" with a campaign, his conduct was not constitutionally protected. Perception of protected activity enough. Reversing, the Supreme Court held that when an employer demotes an employee out of a desire to prevent him from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if, as here, the employer’s actions were based on a factual mistake concerning the employee’s behavior. Focus on employer’s motive. The High Court noted that Section 1983 does not say whether the "right" secured by the Constitution focuses on the employee’s actual activity or on the employer’s motive, insofar as that motive turns on what the employer believes the activity to be. However, in a 1994 case, Waters v. Churchill, the Court found that an employer reasonably but mistakenly thought an employee had not engaged in protected speech when it dismissed an employee, so it did not violate the First Amendment. Thus, in Waters the employer’s motive mattered. Here, the Court also concluded that the government’s reason for demoting the employee was what counted. In the Court’s view, finding liability when an employer mistakenly believed an employee engaged in protected activity would track the First Amendment’s language, which focuses on the government’s activity. Also, the constitutional harm—discouraging employees from engaging in protected speech or association—is the same whether or not the employer’s action rests on a factual mistake. Finally, a rule of law imposing liability despite the factual mistake would not likely impose a significant extra burden on the employer, for the employee still bears the burden of proving an improper motive. Remanded as to motive. Remanding, the Court explained that it assumed for purposes of the opinion that the employer demoted the employee under a policy that violated the Constitution, but the lower courts should decide, in the first instance, whether the defendant may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether any such policy met constitutional standards. Dissent. Justice Thomas, joined by Justice Alito, focused on the "threshold inquiry" of whether the employee was actually exercising constitutional rights. Because he denied that, by picking up the yard sign, he "spoke as a citizen on a matter of public concern" and denied speaking in support of or associating with his friend’s campaign, his claim necessarily failed. "A city’s policy, even if unconstitutional, cannot be the basis of a §1983 suit when that policy does not result in the infringement of the plaintiff’s constitutional rights," Thomas wrote.

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