Intolerable cruelties: Retaliatory actions in first amendment public employment cases

Notre Dame Law Review

Volumn 81, Issue 4, 2006, Pages 1629-1651

  Killen, Matthew M ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 33749984852     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (149)

1. Is there another kind?
2. This Note will refer to this test as the Connick-Pickering test. See infra Part I. For an alternative approach to the question of First Amendment public employee speech that rejects the Court's current take, see Randy J. Kozel, Reconceptualizing Public Employee Speech, 99 NW. U. L. REV. 1007 (2005) (arguing for a quasi-Holmsean model).
3. See, e.g., Pengtian Ma, Public Employee Speech and Public Concern: A Critique of the U.S. Supreme Court's Threshold Approach to Public Employee Speech Cases, 30 J. MARSHALL L. REV. 121 (1996);
4. Toni M. Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 S. CAL. L. REV. 1 (1987);
5. Lawrence Rosenthal, Permissible Content Discrimination Under the First Amendment: The Strange Case of the Public Employee, 25 HASTINGS CONST. L.Q. 529 (1998);
6. Rodric S. Schoen, Pickering Plus Thirty Years: Public Employees and Free Speech, 30 TEX. TECH L. REV. 5 (1999);
7. Cynthia K.Y. Lee, Comment, Freedom of Speech in the Public Workplace: A Comment on the Public Concern Requirement, 76 CAL. L. REV. 1109 (1988).
8. See Maestas v. Segura, 416 F.3d 1182, 1187-88 (10th Cir. 2005) (laying out the competing views, but declining to pick a side).
9. See cases cited infra notes 58-67 and accompanying text.
10. See, e.g., Rutan v. Republican Party of Ill., 868 F.2d 943, 954 n.4 (7th Cir. 1989) ("[E]ven an act of retaliation as trivial as failing to hold a birthday party for a public employee could be actionable when intended to punish her for exercising her free speech rights." (citing Bart v. Telford, 677 F.2d 622 (1982))), aff'd in part, rev'd in part, 497 U.S. 62 (1990).
11. See 42 U.S.C. § 2000e-3(a) (2000). This Note discusses only the retaliation provision of Title VII.
12. 391 U.S. 563 (1968).
13. 497 U.S. 62.
14. 391 U.S. 563.
15. Id. at 566-67.
16. Id. at 568.
17. Id.
18. See, e.g., City of San Diego v. Roe, 543 U.S. 77, 81-83 (2004).
19. 391 U.S. at 572-73.
20. Id. at 574 (emphasis added).
21. See, e.g., Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979) (ruling that the First Amendment protects a public employee who voices her views on a matter of public concern in private with her supervisor); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (ruling that a public employer can escape a constitutional violation if it can show that the same adverse action would have been taken absent the protected speech).
22. 461 U.S. 138 (1983).
23. Id. at 142, 147; see also id. at 150-51 ("The Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public. . . . '[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.'" (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974))).
24. Id. at 145 (emphasis added).
25. Id.
26. Id. at 146.
27. Id. at 154 (emphasis added).
28. 483 U.S. 378 (1987). McPherson involved a clerical employee in the county constable's office who, after hearing of a presidential assassination attempt, expressed her desire to see the President successfully killed the next time. Id. at 380.
29. Id. at 384 (emphasis added) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968)).
30. Id. at 387.
31. Justice Scalia's dissent, however, argued that the Court's ruling would have an impact on a larger array of employment decisions. Id. at 399 (Scalia, J., dissenting) ("We are asked to determine whether, given the interests of this [government] office, McPherson had a right to say what she did - so that she could not only not be fired for it, but could not be formally reprimanded for it . . . ." (second emphasis added)). In any case, the Court balances the adverse action in these cases (termination) consistently in light of the value of the speech and the necessity of deference to the public employer to make personnel decisions based on efficiency concerns.
32. See generally City of San Diego v. Roe, 543 U.S. 77 (2004) (applying the Connick-Pickering test to a case where a police officer sold videos of himself stripping out of his uniform on the Internet); Waters v. Churchill, 511 U.S. 661 (1994) (discussing the principles of employee speech rights, matters of public concern, and the need of efficiency in government offices).
33. Roe, 543 U.S. at 79; Waters, 511 U.S. at 667.
34. Bd. of County Comm'rs v. Umbehr, 518 U.S. 668 (1996).
35. Id. at 674 (citing Laird v. Tatum, 408 U.S. 1 (1972)).
36. Id. at 677.
37. 427 U.S. 347 (1976).
38. See, e.g., Rutan v. Republican Party of Ill., 497 U.S. 62 (1990).
39. 427 U.S. at 359 ("The threat of dismissal for failure to provide that support unquestionably inhibits protected belief and association, and dismissal for failure to provide support only penalizes its exercise." (emphasis added)); id. at 372 ("[P]atronage dismissals severely restrict political belief and association." (emphasis added)).
40. 497 U.S. 62.
41. Rutan v. Republican Party of Ill., 868 F.2d 943, 955 (7th Cir. 1989), aff'd in part, rev'd in part, 497 U.S. 62.
42. Rutan, 497 U.S. at 79.
43. Id. at 74. Applying strict scrutiny instead of the balancing test in and of itself does not mean that the definition of adverse employment action would change, of course.
44. Compare id. at 70 n.4 (discussing the level of scrutiny involved), with id. at 101 n.3 (Scalia, J., dissenting) (drawing distinctions between the present case and the Connick-Pickering line of cases).
45. See Mendozo Toro v. Gil, 110 F. Supp. 2d 28, 34 (D.P.R. 2000).
46. See, e.g., Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004); Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir. 2003); Farmer v. Cleveland Pub. Power, 295 F.3d 593, 602 (6th Cir. 2002).
47. See, e.g., Stavropoulos v. Firestone, 361 F.3d 610, 616 (11th Cir. 2004), cert. denied, 544 U.S. 976 (2005); Myers v. Neb. Health & Human Servs., 324 F.3d 655, 660 (8th Cir. 2003); Bickel v. Burkhart, 632 F.2d 1251, 1255 (5th Cir. 1980). But see Philips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (recognizing that retaliation situations beyond the "classic examples" are cognizable if minor incidents coalesce into a retaliatory act). Some circuits remain undecided over the question. The Tenth Circuit, for example, has recognized the circuit split but declined to rule on the issue. See Maestas v. Segura, 416 F.3d 1182, 1188 n.5 (10th Cir. 2005). The Tenth Circuit has, however, recognized that First Amendment retaliation action could be broader than a Title VII retaliation action, but explicitly noted that the circuit has "never held [that] employment action which may tend to chill free speech is necessarily adverse." Id. For a discussion of Title VII's relevance to the issue in question, see infra notes 75-91 and accompanying text.
48. Rutan, 497 U.S. at 73 (majority opinion).
49. 320 F.3d 968.
50. See id. at 974-75.
51. Id.
52. Id. at 975.
53. Id. In Coszalter, the Ninth Circuit said that adverse employment action would include "transfer to new duties[,] . . . an unwarranted disciplinary investigation[,] . . . an unwarranted assignment of blame[,] . . . a reprimand containing a false accusation[,] . . . a criminal investigation[,] . . . repeated and ongoing verbal harassment and humiliation[,] . . . a . . . suspension from work[,] . . . a threat of disciplinary action[,] . . . an unpleasant work assignment[,] . . . [and] an unwarranted disciplinary action." Id. at 976.
54. See Farmer v. Cleveland Pub. Power, 295 F.3d. 593, 602 (6th Cir. 2002) (citing Smith v. Fruin, 28 F.3d 646, 649 n.3 (7th Cir. 1994)).
55. Id.
56. Id. at 597.
57. Id. at 598.
58. Id. at 602.
59. Smith, 28 F.3d at 649.
60. Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993).
61. Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004).
62. Bickel v. Burkhart, 632 F.2d 1251, 1255 n.6 (5th Cir. 1980).
63. Id. at 1256.
64. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000).
65. Id.; see also id. at 158 n.14 ("Stigma by itself, without an impact on one's employment, does not constitute an adverse employment action.").
66. Jones v. Fitzgerald, 285 F.3d 705, 713 (8th Cir. 2002) ("To constitute an adverse employment action, the complained of action must have an adverse impact on the employee and must effectuate 'a material change in the terms or conditions of . . . employment.'" (quoting Bechtel v. City of Belton, 250 F.3d 1157, 1160 (8th Cir. 2001))).
67. Id.
68. Id. at 714. Neither does negative memoranda in a personnel file or the mere existence of warranted internal investigations. Id.
69. Myers v. Neb. Health & Human Servs., 324 F.3d 655, 659-60 (8th Cir. 2003).
70. Stavropoulos v. Firestone, 361 F.3d 610, 619 (11th Cir. 2004), cert. denied, 544 U.S. 976 (2005).
71. Id.
72. See Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000).
73. Id.
74. 37 F.3d 1146 (5th Cir. 1994).
75. Id. at 1146, 1150.
76. Stavropoulos, 361 F.3d at 618-19 (emphasis added).
77. See, e.g., Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994) ("If employees who exercise free speech find themselves facing more burdensome promotion requirements than those employees who remain silent, they are unlikely to speak freely on matters of public concern.").
78. For example, transfer and change in duties are actionable under a chilling effect inquiry, but not under an important conditions/materiality scheme. Compare Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004) ("[W]e cannot hold as a matter of law that transfer to a more physically demanding and less skilled post and an unfavorable change in schedule . . . are insufficient to deter the exercise of free speech."), with Smith v. Fruin, 28 F.3d 646, 649 n.3 (7th Cir. 1994) (noting that change of duties is a sufficiently adverse employment action).
79. Stavropoulos, 361 F.3d at 619.
80. 42 U.S.C. § 2000e-3(a) (2000).
81. See Rosalie Berger Levinson, Superimposing Title VII's Adverse Action Requirement on First Amendment Retaliation Claims: A Chilling Prospect for Government Employee Speech, 79 TUL. L. REV. 669, 688-89 (2005);
82. see also Shannon Vincent, Comment, The Unbalanced Responses to Employers Getting Even: The Circuit Split over What Constitutes a Title VII-Prohibited Retaliatory Adverse Employment Action, 7 U. PA. J. LAB. & EMP. L. 991, 1012 (2005) (proposing a solution to the split by premising employer liability on the employer's fault and knowledge);
83. Matthew J. Wiles, Comment, Defining Adverse Employment Action in Title VII Claims for Employer Retaliation: Determining the Most Appropriate Standard, 27 U. DAYTON L. REV. 217, 243 (2001) (advocating a flexible balancing approach that limits courts to adverse actions that have a "significant" effect on the employee's status).
84. See generally Brian A. Riddell & Richard A. Bales, Adverse Employment Action in Retaliation Cases, 34 U. BALT. L. REV. 313 (2005) (laying out three different approaches to adverse actions in the Title VII context).
85. Riddell & Bales, supra note 77, at 313.
86. Id. (citing Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000)).
87. Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004) (quoting Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000) (emphasis omitted)).
88. Riddell & Bales, supra note 77, at 313.
89. Id. at 314.
90. See, e.g., Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir. 2003) (adopting a "reasonably likely to deter" test from the circuit's Title VII cases to the First Amendment context). But see Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 580 (5th Cir. 2003) ("We recognize that [the definition in First Amendment contexts] may be broader than Title VII's definition, which limits the meaning of adverse employment action to ultimate employment decisions.").
91. See, e.g., Stavropoulos v. Firestone, 361 F.3d 610, 619 (11th Cir. 2004) (noting the similarities in the test for First Amendment retaliation claims and Title VII claims), cert. denied, 544 U.S. 976 (2005).
92. Id.
93. 361 F.3d 610.
94. Id. at 620.
95. See id.
96. See, e.g., Jones v. Fitzgerald, 285 F.3d 705, 714 (8th Cir. 2002) ("[W]e have consistently held a change in non-tangible working conditions, no matter how unpleasant, fails to constitute a 'material employment disadvantage' necessary to establish an adverse employment action under either Title VII or [First Amendment cases]." (quoting Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997))).
97. Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (quoting Burger v. Cent. Apartment Mgmt., 168 F.3d 875, 878 (5th Cir. 1999)).
98. Id. at 580.
99. See supra Part I for a discussion on how a narrow approach does not apply to all conduct that chills speech.
100. Levinson, supra note 77, at 697.
101. See id. at 693 ("Once it is recognized that the adverse employment action would chill a reasonable employee from engaging in protected speech, the severity of the retaliatory conduct may affect damages, but it should not affect liability."). Professor Levinson's objections to the use of narrow Title VII standards in the First Amendment context stems substantially from a desire to protect governmental whistleblowers, id. at 671, although the First Amendment covers speech wholly unrelated to this concern, see Rankin v. McPherson, 483 U.S. 378, 383-84 (1987). In addressing the circuit split over adverse actions in public employee free speech cases, Professor Levinson rejects the restrictive Title VII definition and advocates a chilling effect approach. Levinson, supra note 77, at 699-700. While this Note agrees that defining adverse action restrictively is undesirable, Title VII is a poor standard to follow for other reasons as well. See infra notes 101-121 and accompanying text.
102. See Stavropoulos v. Firestone, 361 F.3d 610, 620 (2005) ("Requiring the First Amendment retaliation claimant to show that the actions she complains of not only was likely to chill her speech but also altered an important condition of employment insures that she satisfies the injury-in-fact requirement of federal justiciability law."), cert. denied, 544 U.S. 976 (2005).
103. Id.
104. 361 F.3d 610.
105. See id. at 620 ("'[A]llegations of a subjective "chill" are not an adequate substitute for a claim of a specific present objective harm or a threat of specific future harm.'" (quoting Laird v. Tatum, 408 U.S. 1, 13-14 (1972))).
106. See supra notes 33-40 and accompanying text.
107. Rutan v. Republican Party of Ill., 497 U.S. 62, 75 n.8 (1990) (quoting Rutan v. Republican Party of Ill., 868 F.2d 943, 954 n.4 (7th Cir. 1989), aff'd in part, rev'd in part, 497 U.S. 62).
108. The split is over whether coworker harassment (sometimes referred to as hostile work environment) constitutes retaliation in the Title VII context. See Christopher M. Courts, Note, An Adverse Employment Action - Not Just an Unfriendly Place To Work; Co-Worker Retaliatory Harassment Under Title VII, 87 IOWA L. REV. 235, 236 (2001). However, the courts all agree that coworker harassment is actionable under the harassment provision of Title VII.
109. See Kari Jahnke, Protecting Employees from Employees: Applying Title VII's Anti-Retaliation Provision to Coworker Harassment, 19 LAW & INEQ. 101, 102 (2001).
110. The Ninth Circuit adopts a broad chilling effect approach of adverse employment action in the First Amendment context. See supra notes 46-49 and accompanying text.
111. Fielder v. UAL Corp., 218 F.3d 973, 985 (9th Cir. 2000), vacated, 536 U.S. 919 (2002) (vacating on a point of law unrelated to the proposition that coworker harassment is cognizable under Title VII).
112. See Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) ("Because an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute an adverse employment action."). But see Howard Zimmerte, Note, Common Sense v. The EEOC: Co-Worker Ostracism and Shunning as Retaliation Under Title VII, 30 J. CORP. L. 627, 631 (2005) ("[A]ctions as benign as shunning or ostracism could fall within Title VII's purview simply because they involve employees 'punishing' a fellow employee for asserting his or her rights.").
113. Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264-65 (10th Cir. 1998).
114. Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999).
115. One commentator calls it negligence on the part of the employee. Jahnke, supra note 101, at 117. In at least the Tenth Circuit, the requirement is knowledge and acquiescence. See Gunnell, 152 F.3d at 1265.
116. See Rankin v. McPherson, 483 U.S. 378 (1987).
117. Id. at 381.
118. Id. at 387 (internal quotation marks omitted) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
119. It is not necessarily true that he has the ability. First Amendment free association claims might come into play. See Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) ("[H]olding an employer liable because its employees refuse to associate with each other might well be unconstitutional . . . .").
120. There are competing reasons for recognizing hostile work environment claims in the Title VII retaliatory area. Compare Courts, supra note 101, at 260 (recognizing hostile work environments "supports a plain-meaning interpretation of the antiretaliation provision and furthers the purpose of Title VII"), with Zimmerle, supra note 104, at 645 ("While there is a logical path that would lead some to the conclusion that such action could properly be the basis for a Title VII retaliation suit, prudential considerations should prevent courts from holding employers liable for this conduct.").
121. In such a situation, the coworker actions are no longer the actions of the coworker; rather, they have become the actions of the employer. The standard advocated in this Note would cover such cases.
122. Among these differences, of course, is the fact that Title VII applies to private and public employers alike, while the First Amendment constrains only the latter.
123. See Riddell & Bales, supra note 77, at 315; Wiles, supra note 77, at 218.
124. See supra text accompanying notes 20-23.
125. See Courts, supra note 101, at 237-38.
126. Id. at 257.
127. See Jahnke, supra note 101, at 101-02 ("The two primary purposes of Title VII are to ensure equal opportunities in employment by preventing discrimination, and to make persons whole for injuries suffered due to unlawful employment discrimination.").
128. This interpretation is based on an effects-based approach to the issue: There is no rationale supporting an interpretation of Title VII that affords less protection against retaliatory discrimination than against discrimination protected under the substantive anti-discrimination provision. The individual and collective effects of discrimination are similar, independent of whether they are motivated by discrimination against a protected characteristic or protected activity. Id. at 124.
129. See Pickering v. Bd. of Educ., 391 U.S. 563, 573-74 (1968).
130. See Rutan v. Republican Party of Ill., 497 U.S. 62, 73 (1990).
131. See id. at 73-74.
132. Id. at 74.
133. Waters v. Churchill, 511 U.S. 661, 672 (1994) (internal quotation marks omitted) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)).
134. Id. (internal quotation marks omitted) (quoting Cohen v. California, 403 U.S. 15, 24-25 (1971)).
135. For a brief definition of chilling effect as used by courts in the First Amendment context, see Adam S. Tanenbaum, Comment, Day v. Holahan: Crossroads in Campaign Finance Jurisprudence, 84 GEO. L.J. 151, 161 (1995) ("As the Court has used the concept . . . [chilling effect] stem[s] from a fear of punishment or penalty against the speaker, and that fear had to be more than just speculative.").
136. See Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).
137. Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1216 (1st Cir. 1989).
138. Id. at 1217 (discussing the appropriate standard for adverse action in political patronage cases).
139. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (internal quotation marks omitted) (quoting Dorsett v. Bd. of Trs., 940 F.2d 121, 123 (5th Cir. 1991)).
140. See Stavropoulos v. Firestone, 361 F.3d 610, 620 (11th Cir. 2004), cert. denied, 544 U.S. 976 (2005); supra note 95 and accompanying text.
141. Stavropoulos, 361 F.3d at 618-19.
142. Connick v. Myers, 461 U.S. 138, 146 (1983).
143. This interest speaks directly to one of the fundamental concerns surrounding Connick-Pickering analysis. See supra text accompanying notes 11-14.
144. See, e.g., Breaux, 205 F.3d at 156.
145. Cf. Lorene Feuerbach Schaefer, Comment, Abused Children and State-Created Protection Agencies: A Proposed Section 1983 Standard, 57 U. CIN. L. REV. 1419, 1438 (1989) ("[T]he elements of causation and culpability are relatively difficult hurdles to clear in section 1983 claims. However, they are not insurmountable."). The causation requirement in § 1983 claims is sometimes deemphasized, at least in other contexts.
146. See Lauren L. McFarlane, Note, Domestic Violence Victims v. Municipalities: Who Pays When the Police Will Not Respond?, 41 CASE W. RES. L. REV. 929, 948 (1991) (discussing how courts assume causation in cases dealing with municipality policy);
147. see also Lisa E. Heinzerling, Comment, Actionable Inaction: Section 1983 Liability for Failure To Act, 53 U. CHI. L. REV. 1048, 1058 (1986) (arguing that overemphasis on causation can be underinclusive of legitimate claims in the context of government obligations to act).
148. See supra text accompanying notes 11-14.
149. On the other hand, Professor Levinson argues that courts should not consider the nature of the adverse action when engaging in Connick-Pickering cases. See Levinson, supra note 77, at 697 ("Once a court has determined that the government employer intended to punish speech . . . and that he has subjected the employee to adverse action that chills speech . . . , the question of how severely an employer has harmed the employee should play no role in the Pickering-Connick balance.").