Free speech retaliation case dies on the vine

Public employees who sue their employers for retaliation arising from their free speech face a number of hurdles. The first hurdle is the plaintiff has to show he spoke as a citizen on a matter of public concern. Assuming the police can establish that, he must show his termination/demotion/whatever was caused by someone's negative reaction to the speech. This case is a causation case.

The case is Birch v. City of New York, a summary order decided on January 12. The public concern component of a First Amendment retaliation case is typically the death knell, ever since the Supreme Court said in the Garcetti case (2006) that it's not free speech if the utterances are part of the plaintiff's normal job responsibilities. But in this case, the plaintiff apparently did engage in free speech in complaining about police department quota policies. The issue here is whether he can prove the retaliatory acts were caused by his free speech. He cannot prove that.

Without direct evidence that the speech caused the adverse action, the plaintiff has to rely on circumstantial evidence. One way to do that is by showing the adverse action closely followed the free speech. Revenge may be a dish best served cold, but the courts do not see it that way. In this case, the gap is too long. Plaintiff spoke out in December 2011 and February 2014. The retaliation took place 17 months later. That will not cut it. Three or four months might do it, but not 17 months. Case dismissed.