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Public employee’s union membership gets constitutional protection in 1st Amendment retaliation claim

By Ronald Miller, J.D.

The association claim of a retired police officer who brought a Section 1983 First Amendment retaliation claim alleging that an employer’s business administrator unlawfully prevented him from becoming the chief of police because he opposed the employee’s union membership was revived on appeal by the Third Circuit. Finding that the employee brought forth at least some evidence suggesting that the business administrator harbored animosity toward him because of his union affiliation, the appeals court concluded that the district court erred as a matter of law in holding the employee did not establish the first element of a First Amendment retaliation claim—constitutionally protected conduct. However, because the employee did not adequately plead a freestanding speech claim, the employer was entitled to summary judgment on that portion of his First Amendment retaliation claim (Palardy v. Township of Millburn, September 19, 2018, Siler, E., Jr.).

Union activity. The employee worked for a number of years as a police officer until his retirement. During his employment, he was promoted three times: first to sergeant, then to lieutenant, and finally to captain. He was also active in the police officers’ union, including serving as president. He participated in four or five contract negotiations between the union and employer, and also attended at least two disciplinary hearings for fellow officers.

According to the employee, the employer’s business administrator stymied his attempts to become chief of police. The business administrator allegedly made repeated statements reflecting negatively on the employee’s union activity, including that he “had to learn to separate himself from the rank and file.”

Promotions. In 2010, when the township was without a chief or team of captains, the employee was the department’s most senior lieutenant and was next in line to become a captain. The employer’s custom was to select its new chief from its roster of captains. Because the employee was a lieutenant, he was not eligible to immediately become chief. However, he believed that he could be promoted to captain for a short time and then promoted to chief. Ultimately, a captain who had been on inactive duty for health reasons returned and was promoted to chief. The employee was given the title “acting captain,” and around that time stepped down as union president believing that it would increase his chances of official promotion to captain.

In October 2011, the employer retained a consultant to study the police department’s “rank structure.” The consultant recommended that the department retain the position of captain. The employee was promoted to captain in February 2012. Believing he would never become chief, the employee accepted another job and retired from the police force. He then filed suit against the employer and business administrator.

The district court permitted his constitutional free speech and association claims to proceed to discovery. Thereafter, the district court granted the employer’s motion for summary judgment, holding that the employee’s union-related activity was not constitutionally protected.

First Amendment retaliation. To prevail on a Section 1983 First Amendment retaliation claim, a plaintiff must prove that (1) he engaged in “constitutionally protected conduct,” (2) the defendant engaged in “retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights,” and (3) “a causal link existed between the constitutionally protected conduct and the retaliatory action.” In this instance, the district court held that the employee’s First Amendment claims faltered at the first step because he failed to show that his association with, and speech on behalf of, the police officers’ union was protected conduct.

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.

Association claim. In this case, the employee alleged that the employer retaliated against him simply because of his union membership, and not because of his advocacy on any particular issue. Because the employee’s complaint presented a pure associational claim, the district court should have analyzed his speech and association claims separately.

Public-concern requirement. Examining the employee’s association claim, the Third Circuit first determined whether he engaged in protected conduct. As an initial matter, the Third Circuit noted that the circuits are split on whether Connick’s public-concern requirement applies to associational claims, and it had not yet taken a position. The Second, Fourth, Sixth, and Seventh Circuits apply the public concern requirement to public employee association claims. On the other side of the split, the Fifth and Eleventh Circuits hold that the public concern requirement does not apply to associational claims.

The Ninth and Tenth Circuits take unique approaches. The Ninth Circuit applies the public concern requirement to “hybrid” free speech and association claims, but it has not decided the question for freestanding association claims. The Tenth Circuit generally requires the public concern requirement for freedom of association claims, but has rejected the requirement in “the specific context of public-employee labor unions.”

In this specific context—an associational claim arising from a public employee’s union affiliation—the Third Circuit concluded that the minority position followed by the Fifth Circuit is the better approach. By holding that mere membership in a public union is always a matter of public concern, the Fifth Circuit’s approach avoids the problem of determining which union association is worthy of First Amendment protection and which is not. Thus, Connick’s public concern requirement stood as no obstacle to the employee’s associational claim.

Private-citizen requirement. As with the public-concern requirement, the Third Circuit concluded that it did not make much sense to apply Garcetti’s private-citizen requirement to pure associational claims based on union membership. The court found it hard to imagine a situation where a public employee’s membership in a union would be one of his “official duties.”

In this specific case, there was no evidence that the employee’s membership in the police officers’ union was one of his job duties. To the contrary, he resigned his union presidency because he thought it would help further his career. Accordingly, the appeals court declined to apply Garcetti’s private-citizen test to the employee’s freedom of association claim.

Because Connick and Garcetti did not bar the employee’s associational claim, his union membership was worthy of constitutional protection. Here, the employee brought forth at least some evidence suggesting that the business administrator harbored animosity toward him because of his union affiliation. Thus, the district court erred as a matter of law in holding that the employee did not establish the first element of First Amendment retaliation claim—constitutionally protected conduct.

Speech claim. With regard to his speech claim, the employee did not allege that the business administrator retaliated against him because of his speech or advocacy on any particular issue. Accordingly, because he did not adequately plead a freestanding speech claim, the employer was entitled to summary judgment on that portion of his First Amendment retaliation claim.