Thursday, September 6, 2012

No adverse employment actions in public employee retaliation case

The Court of Appeals has not been kind to First Amendment retaliation claims, often ruling that the plaintiff's speech was unprotected because it was work-related and not uttered as a citizen. In this case, the Second Circuit rules against the plaintiff for a different reason: no adverse action. This reasoning would apply to Title VII retaliation claims as well.

The case is Wrobel v. County of Erie, decided on August 1. Other aspects of the case are discussed here. Wrobel was targeted by new supervisors in the highway department, Naylon and Rider. Wrobel's wife and other colleagues tried to expose Naylon and Rider's mistreatment of county workers and other improper behavior, such as the misuse of public money. They sent letters to the State Attorney General about this, signing them as "Concerned Erie County Employees." Wrobel and others also met with the FBI about these allegations.

This may constitute speech on matters of public concern -- a necessary prerequisite for any First Amendment retaliation claim -- but Wrobel did not suffer an adverse employment action. Under Circuit precedent, an adverse action is any managerial response that would deter a reasonable public employee from speaking out again. Here, management interrogated him without the presence of a union representative in telling Wrobel to keep his wife out of County buildings. Wrobel was also questioned by the County sheriff about a workplace theft. These are de minimus slights, the Court of Appeals says. They may not have been pleasant, but they were not enough to prevent the average employee from speaking out again. There was no proof that the sheriff's questions were motivated by Wrobel's speech, and these were only a few polite questions anyway, after which Wrobel was left alone.

Plaintiff's best argument is that, when plaintiff grieved his transfer, management encouraged and tried to bribe employees to testify against him. But there is no real proof of this other than a email from Rider to Naylon asking him to attend the hearing "and bring other employees who did 'not want him back.'" This showed they disliked plaintiff, not that they were manipulating testimony.

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