Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Adverse employment actions and free speech

Adverse employment actions and free speech
Robert J. Welch v Christopher Ciampa, USCA, 1st Circuit, Docket #07-2470, decided September 23, 2008

Robert Welch, a Town of Stoughton police officer, sued the Chief of Police and others alleging that he had been subjected to retaliation as a result of his exercising his rights under the First Amendment of the Federal Constitution. He also sought relief under a state whistleblower statute and under the common law theory of tortuous interference with advantageous business relations. The district court?s granted of summary judgment for the defendants but the Circuit Court reverse a portion of the district court?s ruling and remand the case in part for further action.

The genesis of this litigation was a public controversy surrounding the management of the Stoughton Police Department. In June 2004, the Board of Selectmen decided not to renew Police Chief Manuel Cachopa?s contract. This decision reverberated throughout the Town and through the Department and a campaign was initiated to recall the selectmen who had voted not to renew Cachopa?s contract and to replace them with individuals that had promised to reinstate Cachopa as Chief if they were elected.

A number of officers, including Christopher Ciampa, were actively involved in supporting the recall effort, attending meetings and publicly expressing their support for the recall. Welch decided not to participate in any campaign activities related to the recall. His decision to remain neutral was regarded as a betrayal by Cachopa, who allegedly perceived those who did not publicly support the recall as being against it and, by extension, against him.

Welch sued, claiming that his First Amendment rights were violated by removing him from the detective sergeant position in retaliation for his refusal to participate in the recall campaign. In addition, he filed claims against the individual defendants under the Massachusetts Civil Rights Act and a claim against the Town under the Massachusetts Whistleblower Act.
In addressing the merits of Welch?s claims the court said:

In Rutan v. Republican Party of Illinois, 497 U.S. 62, the Supreme Court held that adverse actions short of dismissal or demotion, such as denials of promotions, transfers and rehires, can constitute actionable adverse employment decisions and although the loss of a specialist appointment is not among the adverse decisions enumerated in Rutan, its consequences are similar to decisions we have found to be actionable under §1983.

Although Welch?s base salary remained the same, he lost the additional stipend that accompanied the detective sergeant position as well as the opportunity for substantial overtime pay and additional pay related to detail and court assignments. Welch, as detective sergeant he had been the highest-ranking detective and had been in charge of a department. Viewing the evidence in the light most favorable to Welch, as we must on summary judgment, the loss of those duties is a significant diminution in his job responsibilities. Thus, Welch?s non-reappointment does constitute an adverse employment action sufficient to support a §1983 claim.

As to Welch?s claim that he had suffered retaliatory harassment that is cognizable under §1983, the court said that ?Actions of informal harassment, as opposed to formal employment actions . . . can be the basis for first amendment claims if the motive was political discrimination; but this is so only if the discriminatory acts are ?sufficiently severe to cause reasonably hardy individuals to compromise their political beliefs and associations in favor of the prevailing party.?? Here, the court found, most of the complained-of harassment was perpetrated by officers who are not named as defendants. A supervisor who does not participate in the alleged harassment ?can be held liable . . . [only] if (1) the behavior of [his] subordinates results in a constitutional violation and (2) the [supervisor's] action or inaction was ?affirmatively link[ed]? to the behavior in the sense that it could be characterized as ?supervisory encouragement, condonation or acquiescence? or ?gross negligence [of the supervisor] amounting to deliberate indifference.?? Thus, said the court, Welch cannot hold Cachopa and Ciampa responsible for the harassment he experienced at the hands of other police officers.

As to Welch?s allegations involving free speech and political affiliation, the Circuit Court said that ?A government employee who alleges that her employer has violated her First Amendment right to free speech must satisfy our three-part test.?

1. The individual must establish that he or she spoke as a citizen on a matter of public concern;

2. That ?when balanced against each other, the First Amendment interests of the plaintiff and the public outweigh the government?s interest in functioning efficiently;? and

3. His or her ?protected speech was a substantial or motivating factor in the adverse action against [her].?

The Circuit Court said that First Amendment also prohibits government officials from taking adverse employment action against a non-policymaking government employee based on the employee?s political affiliation. In order to establish a prima facie case of political discrimination, a plaintiff must adduce evidence that (1) the plaintiff and the defendant belong to opposing political affiliations; (2) the defendant has knowledge of the plaintiff?s . . . affiliation; (3) . . . a challenged employment action [occurred]; and (4). . . political affiliation was a substantial or motivating factor behind it.

The Circuit Court reversed the district court?s grant of summary judgment for Ciampa and the Town on Welch?s §1983 claim, whistleblower claim and tortuous interference claim and returned the case to the lower court ?for proceedings consistent with this opinion.? It then affirmed the remainder of the district court?s grant of summary judgment. Costs were taxed against Christopher Ciampa.

The full text of the decision is posted on the Internet at:

http://www.ca1.uscourts.gov/

Full post as published by New York Public Personnel Law on September 26, 2008 (boomark / email).