It Must be Speech to be Protected

Public Sector.BlogJeffrey Heffernan, a police officer and good son in Paterson, New Jersey, wanted to help his mom, so he responded to her request to bring her a lawn sign supporting Lawrence Spagnola for mayor. Unfortunately, Spagnola was the current mayor’s rival, and after word of Heffernan’s “activities” got back to the office, Heffernan was demoted. Believing his demotion was due to the errand he ran for his mom, Heffernan sued, arguing a First Amendment retaliation claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983). Heffernan v. City of Paterson (3d Cir. 2015).

Unfortunately, Heffernan’s claim lacked an essential element. In order to be retaliated against for exercising a First Amendment right, an employee must exercise that right, or in this case “speak,” and that speech must be protected. Precedent is clear that “a free-speech retaliation claim is actionable under Section 1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.” Instead, Heffernan stated repeatedly that he delivered the lawn signs not as a political statement, but as a favor to his ailing mother.

The court could not support his claim because “[a] First Amendment retaliation claim requires an employee actually engage in protected speech … .” Heffernan then argued that he should prevail based on a perceived free-association claim, a theory recognized in a case from the Sixth Circuit. Dye v. Office of the Racing Comm’n  (6th Cir. 2012). In that case, a public employer made assumptions about employees’ political affiliation and retaliated against them, which the court found improper. However, the court in Heffernan was not persuaded by the theory and returned again to the fact that Heffernan didn’t speak or engage in any association that could be protected.

In a holding sure to delight managers who make incorrect assumptions when making decisions, the court decided that it is not improper for a government employer to discipline an employee based on “substantively incorrect information,” even if the employer “erroneously believes that the employee had engaged in protected activity under the First Amendment,” unless the employee actually engaged in protected speech.