Public Sector Case Notes

• Publication year: 2014
• Author: By Stewart Weinberg & Kerianne Steele

Public Sector Case Notes

By Stewart Weinberg & Kerianne Steele

Stewart Weinberg, a 1960 graduate of Boalt Hall, is a shareholder in Weinberg, Roger & Rosenfeld in Alameda, a union-side labor law firm. Mr. Weinberg specializes in the representation of unions and employees in the public sector. Kerianne Steele also is a shareholder in the firm. She provides general representation to labor unions, primarily in the public sector.

FIRST AMENDMENT SPEECH RIGHTS OF PUBLIC EMPLOYEES

Public Employee Could Not Be Disciplined for Truthful Subpoenaed Testimony Outside the Course of His Ordinary Job Duties

Lane v. Franks, 134 S. Ct. 2369 (2014)

The First Amendment to the United States Constitution protects speech by citizens on matters of public concern. However, that does not mean that all speech by public employees is automatically protected. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes. There is a two-step inquiry as to whether a public employee's speech is protected. The first step requires a determination of whether they spoke as a citizen on a matter of public concern. If the answer is "no," the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is "yes," then the possibility of a First Amendment claim arises. The question then is whether the employer had an adequate justification for treating the employee differently from any other member of the general public.

In this case, the petitioner was a probationary employee serving as the Director of Community Intensive Training for Youth. A federal grand jury subpoenaed him to testify about his reasons for firing an employee. He was subsequently terminated. He filed suit against his supervisor, both individually and in his official capacity, alleging that he had been terminated in violation of his First Amendment rights in retaliation for his testimony.

The district court granted summary judgment against the employee in reliance on Garcetti, because his testimony involved information that he had learned while working in his official capacity and his testifying constituted part of his job duties. The court of appeals held that because he had learned of the subject matter of his testimony in the course of his employment, his testimony had to be treated as the speech of an employee rather than the speech of a citizen.

The Supreme Court held that the employee's testimony was protected by the First Amendment. The employee's testimony at the trial was speech by a citizen on a matter of public concern, even though it related to the speaker's public employment and contained information learned during that employment. The Supreme Court stated that the district court and court of appeals had read Garcetti too broadly. However, the Court added that a public employee's sworn testimony is not categorically entitled to First Amendment protection simply because it is a speech of a citizen on a matter of public concern. The second part of the Garcetti inquiry is whether the employer had an adequate justification for treating the employee differently from any other member of the public. In this case, the Supreme Court held that the public employer did not assert and could not demonstrate any government interest in treating the petitioner differently from any other member of the public.

Multiple Seemingly Minor Adverse Employment Actions, Taken in Context, Avoid Summary Judgment in an Action for Retaliation for First Amendment Protected Speech

Thomas v. County of Riverside, 763 F.3d 1167 (9th Cir. 2014)

The plaintiff was an employee of the County of Riverside. She and her union filed an action against her employer, claiming retaliation for exercising her First Amendment free speech rights. The court granted the County's motion for summary judgment on the ground that the plaintiff had failed to provide evidence of "materially adverse employment actions" that are reasonably likely to deter protected speech. The plaintiff had presented evidence of more than thirty adverse employment actions, but the district court dismissed all of them, characterizing most of them as "petty workplace gripes . . . [that] do not rise to the level of retaliatory employment actions."

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The Ninth Circuit reversed and remanded the case for reevaluation by the...