Court Dismisses Female Firefighter’s Retaliation Claim Against the City Because She Could Not Demonstrate the City Took Adverse Employment Actions Against Her

By Erica Shelley Nelson and Brennen Johnson

dismissalIn Burns v. City of Utica, the Second Circuit U.S. Court of Appeals affirmed the dismissal of a female firefighter’s lawsuit against the City of Utica, New York. The Firefighter claimed in her lawsuit that the City had retaliated against her for reporting an incident of sexual assault by denying her application for disability benefits. After reviewing a U.S. district court’s decision to dismiss the Firefighter’s lawsuit, the Court of Appeals determined that the dismissal was warranted where the Firefighter failed to show that any negative consequences stemming from the denial of her disability application was attributable to the City.

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Terminated New Jersey Police Officer’s First Amendment Claim Fails After Federal Court Finds Retaliation Based on Mistaken Perception of Free Speech Not Actionable

By Emily Nelson

free speechJeffrey Heffernan, a police officer in the City of Paterson, New Jersey, sued the City for retaliation after he was demoted from Detective to Patrol Officer for engaging in protected speech. Heffernan was demoted the day after other police officers observed him meeting with a Mayoral Candidate’s Campaign Manager to pick up a campaign lawn sign for his ill mother while he was off duty. However, in Heffernan v. City of Paterson, a Federal District Court dismissed Heffernan’s claims, finding that an employee cannot bring a first amendment retaliation claim based on an Employer’s mistaken perception that the Employee is engaging in political speech—there must be some evidence that the individual actually engaged in the speech for which they are retaliated against.

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As Expected, Supreme Court Acknowledges First Amendment Speech Protection for Public Employee that Testifies Pursuant to Subpoena

By Jim Cline

whistleblower1

As had been widely anticipated, the United States Supreme Court in Lane v. Franks overturned a ruling by the 11th Circuit Court of Appeals that had found that a Georgia community college administrator was unprotected by the first amendment when he was retaliated against following his sworn court testimony.

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Pending Supreme Court Decision May Require Supreme Court to Broaden Narrow Workplace Speech Protections

By Jim Cline

Free Speech 2A case currently pending before the US Supreme Court may challenge the Court’s previous holdings that workplace speech that touches on a public employee’s “job duties falls outside the protection of the First Amendment. The Lane v. Franks involved an Alabama Community College employee who was terminated in retaliation for his subpoenaed testimony. The 11th Circuit Court of Appeals ruled that because his testimony was in furtherance of his actual job duties, it did not fall under the “job duties” exception to the First Amendment enunciated by the Supreme Court in 2006 in Garcetti v. Calleballos.

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Federal Court Finds Mississippi Police Officer’s Facebook Comments Criticizing Department’s Decision Not to Attend Funeral of Officer Killed in the Line of Duty Not Protected Speech

By Emily Nelson

Thumbs DownSusan Graziosi, a sergeant of the Greenville Mississippi Police Department, alleged she was fired in retaliation for posting criticisms of her police Chief Freddie Cannon on Facebook The federal district court dismissed her free speech claim in Graziosi v. City of Greenville, finding that the Chief was justified in firing her in order to minimize disruption in the department.

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Secretly Recorded Conversation with the Sheriff Helps Texas Corrections Captain in Fight to Keep Job

By Anthony Rice

Secret RecordingIn Haverda v. Hays County, an the Federal Fifth Circuit Court of Appeals found Texas Corrections Captain Haverda introduced enough evidence that could lead a reasonable juror to conclude Haverda’s demotion was motivated by his speech.  It rejected a lower court ruling that had dismissed Haverda’s claim and sent it back for trial.

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Suspicious Timing of Detective’s Transfer after Political Involvement and Favorable Testimony that Detective had “Made the Mayor Mad” Creates a Triable First Amendment Claim

By Anthony Rice

3d man speechIn Peele v. Burch, the 7th Circuit Court of Appeals reversed a district court decision granting summary judgment to the City on a detective’s First Amendment Claim against the Portage Indiana Police Department. The court held that the detective presented sufficient evidence that casts doubt on the defendants’ story and thus creates a triable claim.

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Ninth Circuit Allows Officers to Pursue Gold: Union Vote of No Confidence against Sierra Madre Chief that Resulted in Delay of Promotion of Police Association Qualifies for Trial

By Mitchel Wilson

no confidenceIn Ellins v. City of Sierra Madre, 35 IER Cases 432 (2013), the Ninth Court of Appeals remanded a case against the City of Sierre Madre for trial because the trial court dismissed it after it incorrectly concluded that Officer John Ellins did not qualify for first amendment protections.

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Third Circuit Upholds Lawsuit against Jersey City Mayor and Police Chief Crony by Former Female Officer for Freezing All Promotion Because She Supported an Opposing Candidate

By Mitchel Wilson

LawsuitThe Federal Third Circuit Court of Appeals in Montone v. City of Jersey City, reversed the District Court and allowed Officer Valerie Montone and male co-plaintiffs to bring political retaliation/first amendment claims to trial when the City froze all promotions to lieutenant despite a lieutenant shortage.  The court concluded that a group of male co-plaintiffs eligible for promotion also had valid claims, even though they weren’t the direct target of the alleged misconduct. [Read more…]

The Ebb and Flow of First Amendment Arbitration Decisions

By Anthony Rice

Arb DecisionsThis article demonstrates how arbitrators might view similar free speech claims differently. In Elko County, a sergeant’s discussion about the sheriff’s proposed staff reorganization was allowed to circumvent the chain of command since the speech was protected by the First Amendment. However, in City of Wapakoneta, a fire captain’s speech was required to go up the chain of command because the speech was not protected.

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