Rockland County public employees lose First Amendment retaliation appeal

These public employees complained to the County legislature over a proposal to relocate the Probation Department. The Director of Probation told the plaintiffs in a memo (and in a series of meetings) that their protests were out of line, had disregarded the chain of command and that "further communications of this nature may result in disciplinary action against you." The plaintiffs sued under the First Amendment, claiming this memo was retaliatory.

The case is Bennett v. County of Rockland, issued on March 7. The case went to trial, and the jury said this memo was not an "adverse action." In order to sue for retaliation, the plaintiffs must prove an adverse action which would make the lawsuit worth fighting. An adverse action in retaliation cases requires proof that the employer's response to the free speech would dissuade an objective employee from speaking out again. The Supreme Court bestowed that generous test upon us in the Burlington Northern case in 2006. 

Although the jury said the memo would not dissuade anyone from speaking out again, post-trial, the trial judge entered judgment for the plaintiffs anyway, finding that this memo was an adverse action as a matter of law as it contained a threat of discipline in the event plaintiffs again objected to relocating the Department's office. The trial court then issued an injunction preventing the County from enforcing the memo-threat. Were these rulings correct? No, says the Court of Appeals (Jacobs, Nathan and Gonzalez [D.J.]), which vacates the trial court's order and reinstates the jury verdict in favor of the County.

The Second Circuit opens its discussion by stating, "Often, the question of 'whether an undesirable employment action qualifies as being ‘adverse’ is a heavily fact-specific, contextual determination' that is left for the jury." Here, the trial record supports the jury's finding that the memo was a "petty slight, minor annoyance, or trivial punishment" and not a real adverse action. Only one employee from the Department of Probation in 26 years had ever been suspended, and no one had been fired in ten years. "The infrequency of actual disciplinary action at the Probation Department could lead a reasonable jury to infer that the one-page Memorandum and the fifteen-minute meeting would not have deterred a similarly situated employee of ordinary firmness from exercising her First Amendment rights." Essentially, the jury found that plaintiffs did not have to take the disciplinary threat seriously.

The Court does say that if the jury found in the plaintiffs' favor, that verdict would have been upheld as well. The point is that this issue was for the jury, not the trial judge following a defense verdict. "The question of whether a particular criticism or reprimand qualifies as an adverse employment action will often be a fact-intensive inquiry for the jury."