Friday, June 03, 2011

Sec. 1983 - free speech - citizen v. employee

Tatum v. Phila. Housing Authority - ED Pa. - May 26, 2011

Section 1983 provides a remedy for vindicating federal substantive rights. . . .The Court has recognized “an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” . . .To allege a Section 1983 violation against multiple defendants, the plaintiff “must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”

Because Section 1983 is a “remedy for deprivations of rights established elsewhere in the Constitution or federal laws,” “the initial question in a section 1983 action is whether the plaintiff has alleged a deprivation of a constitutional right at all.”. . . Here, Plaintiff alleges a constitutional deprivation of his First Amendment rights resulting in his termination from PHA.

The Third Circuit employs the following three-step burden-shifting analysis to a public employee’s Section 1983 claim of retaliation for engaging in protected activity under the First
Amendment: (1) the employee must demonstrate that his/her speech is protected, that is, it addresses a matter of public concern and the “employee’s interest in the speech outweighs” the employer’s countervailing interest “in promoting workplace efficiency and avoiding workplace disruption” (i.e., the balancing test established in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed.2d 811 (1968)); (2) the employee must prove that his/her speech was “a substantial or motivating factor” in the retaliatory action against him/her, which, if proven;
(3) shifts the burden to the employer to prove that the “allegedly retaliatory action would have been taken absent the protected [speech].” Reilly v. City of Atlantic City, 532 F.3d 216, 224 (3d Cir. 2008) (citation omitted).

The governing Supreme Court case addressing whether a public employee’s speech is protected under the First Amendment is Garcetti v. Ceballos, 547 U.S. 410 (2006). The Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421. In Garcetti, the plaintiff, Richard Ceballos, a deputy district attorney, investigated inaccuracies in an affidavit used to obtain a search warrant in a pending case, communicated his concerns to his supervisors regarding the matter, and wrote a memorandum recommending dismissal of the case. Garcetti, 547 U.S. at 413-14. Ceballos testified on behalf of the defense regarding his concerns, and was demoted and transferred shortly after testifying. Id. at 414-15. Ceballos contended that his speech was constitutionally protected and the retaliation was unlawful. Id. at 415. The Supreme Court determined that Ceballos wrote the memorandum “pursuant to official responsibilities” and therefore had no claim for unconstitutional retaliation. Id. at 424.

Following Garcetti, the Third Circuit held that: [a] public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have “an adequate justification for treating the employee differently from any other member of the general public” as a result of the statement he made. . . The Court will consider the “content, form, and context of a given statement” to determine whether a government employee’s expressive conduct involves a “matter of public concern.”