Source of the following information: Los Angeles
Association of Public Librarians
9th Circuit Decision Upholds Employee Free Speech Rights
COSZALTER v. CITY OF SALEM (9th Cir, case no. 00-36097, opinion filed Feb.18,
2003) upholds government employee free speech rights.
"Plaintiffs, current and former employees of the City of Salem, Oregon,
sued under 42 U.S.C. § 1983, alleging that defendants violated their
First Amendment rights by retaliating against them for publicly
disclosing health and safety hazards."
"In a First Amendment retaliation case, an adverse employment action is
an act that is reasonably likely to deter employees from engaging in
constitutionally protected speech. Further, when adverse employment
actions are taken between three and eight months after the plaintiffs’
protected speech, a reasonable jury could infer that retaliation is a
substantial or motivating factor."
"In order to state a claim against a government employer for violation
of the First Amendment, an employee must show (1) that he or she
engaged in protected speech; (2) that the employer took “adverse
employment action”; and (3) that his or her speech was a “substantial
or motivating” factor for the adverse employment action."
"A government employer “cannot condition public employment on a basis
that infringes the employee’s constitutionally protected interest in
freedom of expression.” Connick v.Myers, 461 U.S. at 142. Simply
because it is acting as an employer, the government does not gain the
unfettered ability to interfere with the constitutional rights of its
employees; that is, it cannot use employment conditions to “produce a
result which [it] could not command directly.” Perry v. Sindermann,
408 U.S. 593, 597 (1972) (alteration in original) (quoting Speiser v.
Randall, 357 U.S. 513, 526 (1958)). When a government employee
exercises his protected right of free expression, the government cannot
use the employment relationship as a means to retaliate for that
expression. The precise nature of the retaliation is not critical to
the inquiry in First Amendment retaliation cases. The goal is to
prevent, or redress, actions by a government employer that “chill the
exercise of protected” First Amendment rights. See Rutan v. Republican
Party, 497 U.S. 62, 73 (1990) (protection of political belief and
association under the First Amendment). Various kinds of employment
actions may have an impermissible chilling effect. Depending on the
circumstances, even minor acts of retaliation can infringe on an
employee’s First Amendment rights. See id. at 75-76.
[...]To constitute an adverse employment action, a government act of
retaliation need not be severe and it need not be of a certain kind.
Nor does it matter whether an act of retaliation is in the form of the
removal of a benefit or the imposition of a burden."
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