Public Employee Enjoys Rare First Amendment Retaliation Success

First_amendment_3 From, comes this First Amendment retaliation case that reminds me of the old days of public employee free speech rights before the Garcetti decision of the U.S. Supreme Court eviscerated free speech protection for these employees in 2006.

Hughes v. Region VII Area Agency on Aging, 07-1570 (6th Cir. Sept. 8, 2008) considered the claims of a former public employee who alleged that she was fired for her conversations with a local newspaper reporter. Because defendants did not claim that she spoke in accordance with her official duties, Garcetti v. Ceballos, was found inapplicable.

Instead, the court concluded that the trial court was in error and the plaintiff spoke on a matter of public concern protected by the First Amendment when she discussed with a newspaper reporter issues concerning a number of incidents relating to the former executive director of the agency, including alleged sexual harassment, a lawsuit settlement, and other turmoil surrounding the agency.

The case is not yet over because issues of causation still need to be determined by the factfinder, but the reversal of the district court decision makes a settlement favorable to plaintiffs more likely.

Perhaps more importantly, the Hughes case highlights that cases of First Amendment retaliation are easier for public employees to win when the issue is one of “public concern” and not “whether they act pursuant to their official duties.”

Finally, at essence, the attorney for the plaintiff is right, this case is important because it sets precedent for the proposition that non-confidential public employees may not be fired for simply talking to the press.

Hat Tip: Elaine Mittleman


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