Wednesday, August 10, 2016

Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment


Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment
Stilwell v City of Williams, USCA, 9th Circuit, Case #14-15540
Source: FindLaw, part of Thomson Reuters

FindLaw reports that “In a suit brought by a City employee who alleged that he was fired for planning to testify against the City in a lawsuit relating to age discrimination, the District Court's grant of summary judgment to defendant is vacated and remanded where: 1) plaintiff was engaged in speech as a citizen for First Amendment purposes because his sworn statements and imminent testimony about the City's retaliatory conduct were outside the scope of his ordinary job duties and were on a matter of public concern; and 2) he retaliation provision of the Age Discrimination in Employment Act (ADEA), did not preclude plaintiff’s 42 U.S.C. section 1983 First Amendment retaliation claim.”

In Connick v Myers, 461 US 138, the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.*

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?”

In Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, the Court of Appeals held that  public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large, explaining “that viewing the record evidence in light of established federal precedent … the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations,” at a school.**

Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, CA10 [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218. 

* In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [see Matter of Pickering, 391 US at 568]. However, the Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.


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

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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