Supreme Court’s Holds Employer’s Motive Is Focus in First Amendment Retaliation Case, Not Employee’s Conduct

Today, a divided Supreme Court reversed summary judgment for a municipal employer in a First Amendment/§1983 case where the plaintiff cop had been demoted after he was observed socializing with the campaign staff of the incumbent mayor’s political opponent. Heffernan v. City of Patterson, NJ, No. 14-1280 (4-26-16).  The demotion was based on the incorrect assumption that the plaintiff supported the mayor’s political opponent (arguably protected conduct) when, in fact, he had simply been running an errand for his invalid mother (unprotected conduct).  Nonetheless, the Court found it was the employer’s motive for the demotion and not the plaintiff’s actual conduct that mattered for purposes of determining whether the First Amendment had been violated. “The upshot is that a dis­charge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.”

According to the Court’s opinion, the plaintiff was a police detective and a personal friend of the political opponent of the incumbent mayor (who had appointed the police chief and the plaintiff’s supervisor).  He was observed by fellow officers holding the opponent’s election sign and chatting with his election staff.  He was demoted to beat patrol the next day because of his “overt involvement” in the opponent’s campaign.  He denied that he had been supporting his friend’s campaign and explained that he had simply been picking up an election sign at the request of his invalid mother.  Because he had not actually been engaged in arguably protected First Amendment activities when he ran an errand for his mother, the trial court granted judgment for the employer on the grounds that its mistaken assumption about his activities could not form the basis of a claim under the First Amendment or §1983 and he had not been denied any First Amendment or other constitutional right.  The Third Circuit affirmed.    The Supreme Court reversed.  

“With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”  For purposes of this case, the Court assumed that the activities in which the employer mistakenly believed that the plaintiff had engaged were, in fact, protected and that no legal exceptions were implicated.  The text of the First Amendment is not clear whether the constitutional right should focus on the employer’s motive or the employee’s actual conduct.  Nonetheless, in a prior case, the Court had found that an employer’s reasonable, but mistaken, belief that an employee had engaged in unprotected petty gossip rather than protected First Amendment conduct was sufficient to relieve the employer of liability.  Therefore, if an employer could avoid liability through a mistaken belief that the employee had not engaged in protected conduct, it could just as easily become liable for acting on a mistaken belief that the employee had engaged in protected conduct even though he had not.

[A] rule of law finding liability in these circumstances tracks the language of the First Amend­ment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the free­dom of speech.” The Government acted upon a constitu­tionally harmful policy whether [the plaintiff] did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea­son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And [he] was directly harmed, namely, demoted, through application of that policy.

“The employer’s factual mistake does not diminish the risk of” discouraging employees from engaging in protected activities.  The Court rejected the argument that focusing on the employer’s motive would make litigation more expensive for employers and, instead, noted that it would become more difficult for plaintiffs:

a rule of law that imposes liability despite the em­ployer’s factual mistake will not normally impose signifi­cant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more diffi­cult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks.

Finally, the Court noted that its assumptions about the actual facts of the case could be mistaken and should be evaluated by the trial court:

There is some evidence in the record, however, suggest­ing that [the plaintiff’s] employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign.  . . . . Whether that policy existed, whether [his] supervisors were indeed following it, and whether it com­plies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.