By Harold S. Berman J.D.
A former state police dispatcher who sued the police and her former supervisors and then allegedly received bad references from them preventing her from securing a new position, could proceed with her First Amendment retaliation claim, the Third Circuit ruled. Reversing and remanding the district court’s dismissal of the case, the appeals court found that although significant time had passed between the employee’s previous suit and the alleged retaliatory statements, there was a plausible causal link between the two. The lower court also erred in holding that negative references could not constitute retaliation (Conard v. Pennsylvania State Police, August 28, 2013, Greenberg, M.).
Rehiring denied. A dispatcher for the Pennsylvania State Police for 17 years, the employee voluntarily left in 2002 when she relocated to Texas. At the time, she had a record of positive performance evaluations. Nevertheless, she had disagreements with her two supervisors. In 2004 she returned to Pennsylvania and reapplied for her police dispatcher position. Although she was told she would be rehired subject to a background check, the results of the background check led the police not to offer her the position. She believed the police’s denial of employment was discriminatory and resulted from her two former supervisors retaliating against her for their previous disagreements.
First lawsuit. In 2006, the employee unsuccessfully sued the state police and the supervisors in federal district court, alleging discrimination and retaliation based on her previous employment disputes. The district court dismissed the employee’s complaint, which was affirmed on appeal.
Bad references. The employee said that in the years after she filed her suit, she was unable to secure employment, and the state police and her supervisors had given prospective employers “negative, false and defamatory” statements in response to reference requests. She also claimed that her former supervisors told prospective employers that she had attendance and absence issues, had filed a lawsuit against them, and was ineligible to return to the state police, which did not accurately reflect her positive performance record. The employee alleged that the supervisors knowingly made these false statements in retaliation for her filing her prior lawsuit. She claimed that the state police told at least one prospective employer that the police had never employed her.
Second lawsuit. In 2015, the employee again sued the police and her two supervisors, pro se, alleging they retaliated against her in violation of her First Amendment rights as a result of the first lawsuit. The federal district court dismissed the second suit for failure to state a claim and again the employee appealed.
Government employee standard not applicable. The Third Circuit first clarified that the framework for First Amendment claims brought by government employees against their employers (under Garcetti and Pickering) did not apply to this retaliation claim because her administrative complaint and prior lawsuit, which allegedly triggered the retaliation, occurred after she left her position. Once the employee left, the police no longer had a protectable interest in controlling her speech. Nor was she required to plead that the police and her supervisors engaged in retaliatory speech “of a particularly virulent character,” the standard that would apply where the retaliatory conduct involved speech by a public employer defendant. Nor did other courts apply the heightened virulent character standard in cases where the official’s conduct only concerned a private matter such as the employee’s performance as a former employee.
First Amendment rights. Although the district court concluded that the employee failed to adequately plead a causal link between her prior lawsuit and the supervisors’ statements because of the long temporal gap between them, the Third Circuit found that dismissal for lack of causation was premature, and the employee should be permitted to develop proof of causation through discovery. Significant time had passed between the previous suit and the alleged retaliatory statements, but there was no clear rule mandating the time that may pass between protected speech and what constitutes actionable retaliation.
Plausible causation. The appeals court then held that the employee had pled a plausible causal link between her bringing the first lawsuit and the police and supervisors’ alleged retaliatory conduct. At the motion to dismiss stage, the court was obliged to accept the employee’s allegations as true, and her allegations did not lack plausibility.
The district court also erred in holding that negative references could not constitute retaliation, said the appeals court, finding it debatable whether a negative reference would have been sufficient to deter the employee from exercising her constitutional rights. First Amendment retaliation claims are always individually actionable, even if relatively minor, and the deterrence threshold in such a claim to stop the employee from exercising her First Amendment rights because of the police’s conduct was very low.
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