I am a public employee and I think I might have been fired for my first amendment expressions, what can I do and what do I have to prove?
24 February 2023
Answer: You can bring a claim in court, and what you have to prove is to meet the burden shifting test enunciated in a 1977 United States Supreme Court decision named Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle.
The Mt. Healthy standard was just applied to a recent case titled Salmon v. Lang where the United States Court of Appeals for the First Circuit found the plaintiff did not meet the test. 57 F.4th 296 (1st Cir. 2022). In Salmon, the plaintiff was a teacher that alleged certain negative employment actions, such as workplace harassment, disciplinary action, and transfer denials were attributable to and done to her due to her protected first amendment speech by way of her union advocacy. She brought a first amendment claim among others in federal court and it ruled in favor of the defendants at the summary judgment stage. Overall, on a speech retaliation claim as a public employee a plaintiff must prove that: 1) he spoke as a citizen on a matter of public concern; 2) her employer lacked an adequate justification for treating [him] differently from any other member of the general public, and 3) his protected expression was a substantial or motivating factor in the adverse employment decision. Id. at 308.
The third element was the focus of the appeal. The Mt. Healthy standard comes into play here with a burden shifting test. First the plaintiff must show that but for the proper first amendment expression, the defendant employer would not have taken the adverse action, but way of showing a causal link between the adverse action and the protected conduct. If that is met, the burden shifts to the employer to show an alternative reason for the adverse action, and if that is met, the burden shifts again to the employee to negate the alternative reason. Id. at 309. The appeals court found the plaintiff was unable to show there was a causal link between Salmon’s union advocacy and any negative employment decisions. Although too detailed to explore here, there were particular facts at issue that were relied upon, such as the narrow fact of whether a boss was being willing to meet but just not at the date and time requested.
What the Salmon case indicates to the author here is that to establish a first amended retaliation claim is a tough row to hoe, and that particular facts are crucially important. It is also a complicated analysis where credibility will be at stake. There really needs to be something substantial indicating why the adverse actions were taken that support the plaintiff’s claims. The author suggests that a plaintiff should have documentation and even more determination to prevail.
In the event you believe you are the victim of a first amendment retaliation claim, feel free to give this office a call.