Labor & Employment Law Daily Hispanic lieutenant’s meeting to discuss concerns about his career wasn’t protected speech
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Friday, May 14, 2021

Hispanic lieutenant’s meeting to discuss concerns about his career wasn’t protected speech

By Marjorie Johnson, J.D.

Though the officer reported at the meeting that a police official speculated that another was racist, his stated motivation in speaking—to protect his own career—confirmed that he did not speak on a matter of public concern.

The Second Circuit affirmed dismissal of a Hispanic lieutenant’s First Amendment retaliation claim, ruling that when he met with HR to discuss concerns about his own career and mentioned that the police chief allegedly called the assistant chief a racist, his speech was not protected since he did speak on a matter of public concern. However, the appeals court reinstated his Section 1981 race discrimination claim, ruling that while his complaint did not “enumerate” a claim for racial harassment alongside his cause of action for retaliation, he sufficiently identified the “claim for discriminatory conduct based on Hispanic origin” and made numerous factual allegations sufficient to notify his employer he sought redress for discriminatory conduct (Quinones v. City of Binghamton, May 12, 2021, Park, M.).

Discriminatory remarks. The lieutenant worked for the police department since 2008, having begun his career as a patrol officer and been promoted twice. Since at least 2014, the assistant chief allegedly subjected him to discriminatory “humiliation and ridicule” by, amongst other things, repeatedly calling him “Ricky Ricardo,” mimicking him when he spoke Spanish, remarking that he was “good [at] jumping fences,” stating that he “ran with gangs [and] knew how to steal cars and pick locks” in his youth, and stating that he was “classy Spanish” while another Hispanic officer was “Mexican Spanish.” The discriminatory environment also negatively affected his career and he was allegedly passed over for promotion to captain in favor of a less qualified Caucasian candidate.

The discriminatory conduct also “extended to the rank-and-file,” with one colleague often using an ethnic slur to describe a Hispanic officer, and neither the police chief nor the mayor took any action to eradicate the racism they knew existed in the department.

Chief’s remark prompts concern for career. In July 2019, a black colleague told the lieutenant that he intended to file a race discrimination claim. That same month, the lieutenant learned that the police chief had said his career was “done” and the black colleague’s race discrimination claim was leaked and being discussed within the department. This prompted the lieutenant to meet with HR to discuss concerns about his career. During the meeting, he brought up a conversation in which the police chief described the assistant chief as being a racist. Afterwards, the chief allegedly retaliated against him by attempting to reassign him to road patrol and filing a frivolous disciplinary action, amongst other things. Around three months later, the lieutenant filed an affidavit in support of the black officer’s discrimination suit.

Lawsuit. The lieutenant subsequently filed this lawsuit against the city and several officials and asserted in the opening paragraph that he was bringing a “claim for discriminatory conduct based on Hispanic origin . . . pursuant to 42 U.S.C. § 1981.” He also described various acts of racial harassment throughout the complaint but only enumerated a cause of action for First Amendment retaliation. The district court granted the defendants’ motion to dismiss as to both claims, concluding that he failed to articulate a claim for discrimination and that his First Amendment retaliation claim failed because he did not identify any instances of retaliation occurring after he engaged in protected activity.

First Amendment retaliation. Affirming dismissal of his First Amendment retaliation claim, the Second Circuit agreed that the lieutenant failed to allege any protected speech for which he was punished. During the July 2019 meeting to discuss “his concerns that his career was ‘done,’” he purportedly reported a conversation in which the police chief had allegedly called the assistant chief “a racist” but made no attempt to explain how this meeting constituted protected expression. Thus, his speech was not protected since neither the meeting generally, nor his report about the police chief’s comment specifically, addressed a matter of public concern.

Motivated to protect own career. Rather, his allegations focused on his concern about his own career and his report that a police official speculated that another was racist. “Such speech did not implicate the First Amendment.” Indeed, the lieutenant expressly alleged that the meeting was motivated by “concerns” about his “career” and did not allege any other factors suggesting that his comment specifically or the meeting generally had any “‘broader public purpose.’” The lieutenant’s stated motivation in speaking—to protect his own career—thus confirmed that he did not speak on a matter of public concern. Moreover, insofar as he pointed to his affidavit in support of his black colleague’s discrimination lawsuit as being protected speech, he acknowledged that “the retaliatory measures” occurred months earlier.

Discrimination claim revived. However, the district court erred by declining to consider his discrimination claim because it was not “enumerated.” The fact that his complaint only identified a single cause of action for retaliation was not fatal here since the complaint sufficiently asserted a discrimination claim. The first paragraph identified his discrimination claim “based on Hispanic origin” and he further alleged that he was “consistently and systematically the victim of discriminatory treatment based on his [national] origin,” and “sustained damages as a result of being discriminated against on the basis of his Hispanic origin.” He also described racial harassment and discrimination, including specific allegations concerning the assistant chief’s repeated derogatory remarks, a colleague’s ethnic slurs, and a denied promotion.

Moreover, because the defendants’ motion to dismiss addressed the merits of the discrimination claim at length, they could not assert any prejudice from the lieutenant’s failure to specifically enumerate the cause of action. However, while the lieutenant’s complaint sufficiently identified a discrimination claim, the appeals court emphasized that it made no determination as to whether that claim had “substantive plausibility.”

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