Employment Law I, Some Legal Analysis Of Constitutional Or Federal Claims
FREEDOM OF SPEECH
42 U.S.C. 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
In order to prevail on a 1983 claim, a plaintiff must prove that a defendant, while acting under color of state law, committed or caused a violation of a constitutional or federal right. West v. Atkins, 487 U.S. 42, 48-49 (1988); Piecknick v. Pennsylvania, 36 F.2d 1250, 1255-56 (3d Cir. 1994). A defendant “must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation in which he or she neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). A defendant’s “personal involvement can be shown through allegations of personal direction or of actual knowledge or acquiescence,” which must be made with appropriate particularity. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
Public employees have a constitutionally protected right to speak on matters of public concern without fear of retaliation. Rankin v. McPherson, 483 U.S. 378, 383-84 (1987). There is a three-step analysis in circumstances such as these when a public employee claims that he was retaliated against based upon his speech. First, the plaintiff must prove that he engaged in protected speech or conduct under the First Amendment; second, he must show that the protected activity was a substantial or motivating factor in the alleged retaliatory action; and third, a defendant can rebut the first two claims by demonstrating that “it would have reached the same decision … even in the absence of the protected conduct.” Baldassare v. New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001); Green v. Philadelphia Housing Authority, 105 F.3d 882, 885 (3d Cir. 1997).
Whether the speech involves an area of public concern and whether the interest in speech outweighs the countervailing interest in promoting the efficiency of public services are determinations that are questions of law for the court. Baldassare, 250 F.3d at 195; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). Whether the employer can rebut the claim by demonstrating it would have reached the same decision even in the absence of the protected conduct is a question of fact to be determined by the fact-finder. Id.
FREEDOM OF ASSOCIATION
The First Amendment grants all citizens, including public employees, the right to freely associate with others without fear of government retaliation. See Bradshaw v. Twp. Of Middletown, 296 F.Supp.2d 526, 544 (D.N.J. 2003)(the right of association “extends to union-related activity”). The right of association protects union-related activities. See, e.g., Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir. 1984)(holding that plaintiff’s allegation that defendants retaliated against him for exercising his right to associate with a union was sufficient to state a claim of a constitutional violation).
To state a claim under section 1983 in this context, Plaintiff “must allege instances of union activity for which [he was] retaliated against by persons acting under color of state law.” Bradshaw, 296 F.Supp.2d at 544.
There is a split among the circuits as to whether the ‘public concern’ requirement imposed on free speech claims applies to freedom of association claims. See Sanguini v. Pittsburgh Bd. of Public Educ., 968 F.2d 393, 400 (3d Cir. 1992).
CUSTOM OR PRACTICE IN VIOLATION OF FIRST AMENDMENT
Municipal bodies, such as a board of education, for example, will be subject to section 1983 liability where a policy or custom caused plaintiff’s constitutional deprivations. See Monnell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 694 (1978).
In a case where the Superintendent, to continue the example, is a decision-maker with authority to establish Board policy, the Board is subject to section 1983 liability. In Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990), the court held that section 1983 supervisory liability may be established by showing that the supervisor directed the conduct at issue or acquiesced in the conduct with actual knowledge. See also Martinez v. Scerbo, 2006 WL 2583448 at 3 (D.N.J. Sept. 7, 2006); Bradshaw, 296 F.Supp.2d at 548-49 (holding that plaintiff stated section 1983 claim against township where plaintiff alleged that employee with policy-making authority retaliated against him in violation of his First Amendment rights).
QUALIFIED IMMUNITY
Public officials who perform discretionary functions are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997). A court must first decide whether, construed in the light most favorable to the plaintiff, the facts alleged establish that the officer’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court concludes that there has been no such violation, the inquiry ends and the official is entitled to qualified immunity. Wright v. City of Philadelphia, 409 F.3d 595, 600 (3d Cir. 2005). If a violation is alleged, the next step is to determine whether the constitutional right at issue was clearly established by inquiring “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202.
PUNITIVE DAMAGES AS TO FEDERAL CLAIMS
Punitive damages may be awarded under 42 U.S.C. 1983 “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983).