Tuesday, August 21, 2012

Summary judgment affirmed in political retaliation case

The First Amendment protects public workers from politically-motivated retaliation. In this case, the plaintiff loses because the hostility was based on crude managerial practices as opposed to political discrimination.

The case is Wrobel v. County of Erie, decided on August 1. Wrobel worked in the highway department when the newly-elected County Executive appointed a supervisor, Naylon, who wanted to shape things up and repeatedly told subordinates that he distinguished between employees from the old and new administrations. Let's put it this way: Naylon was not a nice guy. As the Court of Appeals (Jacobs, Pooler and Calabresi) notes, "Naylon was overt in his dislike for those who had preceded him in the Aurora Barn [a highway department facility] and his desire to purge the facility's hold-overs." Various employees were therefore transferred, including plaintiff. Is this enough to show political discrimination?

It is not. Summary judgment is affirmed. Judge Jacobs notes that even politically neutral employees can bring a First Amendment retaliation claim, as well as those who suffer retaliation for supporting the party that lost the last municipal election. But association is only protected under the First Amendment if it relates to a matter of public concern, i.e., political views. That did not happen here. Here's the gist of the Second Circuit's reasoning:

To prove that his political indifference was the reason Naylon and Rider mistreated him, he relies principally on Naylon’s references to an “old regime” and a “new regime.” Assuming that this designation does in fact distinguish between employees brought in by Naylon and those already there when he arrived, there is no evidence or available inference that this distinction is political in the sense that it relates to any political, social, or other community concern. Wrobel submitted evidence that Naylon questioned him about his friends at work, ordered him to tell a friendly former co-worker to stay away from the Aurora barn, and blamed the “old regime” for difficulties at the Aurora barn. Nothing in the record demonstrates that the dysfunction at the Aurora barn was related to anyone’s political association. The record shows instead a toxic form of “office politics” that, no matter how severe or how reprehensible, does not violate the First Amendment. Wrobel alleges no more than generalized references to a heightened standard of performance in the wake of a change of political regime.

That is simply to be expected when the voters replace one set of managers with another; the recently-elected call it reform. Naylon’s passing references to a “new regime” and an “old regime”, without more, cannot transform incompetent and heavy-handed management into a violation of the First Amendment.
This all looks like a close call, and Judge Calabresi certainly thinks so, stating in dissent that while the case is not a slam dunk, a jury could find in plaintiff's favor. He reaches this conclusion through a co-worker's testimony that Naylon said, "we know you guys are all democrats, hired by the other administration." Naylon said this at the same time he talked about getting "rid of the old regime." 

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