Civil Rights Law

Another common type of 1983 claim involves a government employee who is retaliated against (in most cases terminated) for exercising his or her First Amendment rights under the U.S. Constitution. These types of cases come in two forms. First, the constitution allows government employees to actively participate in the democratic process by taking positions on issues, voting, supporting political campaigns, etc. Although there are some limits to a government employee’s ability to exercise free speech, most free speech is protected. If a governmental entity retaliates (including terminating the employee’s employment with the governmental entity) against an employee for exercising his or her free speech rights, the employee may have a claim under 1983 for violating the employee’s First Amendment rights.

The second type of First Amendment 1983 claim involves an employee “blowing the whistle” on unlawful conduct that is taking place in the workplace. This tends to be the most common type of First Amendment 1983 claim our firm handles. In order to prevail on this type of claim, the government employee must be speaking on a matter of “public concern.” In simple terms, “public concern” means, “Was the content of the employee’s speech of a nature that would benefit the general public?” There are many factors the court considers in determining whether an employee’s speech was a matter of “public concern,” but the most important considerations are 1) who the employee communicated to (i.e. law enforcement/an investigative agency vs. the general public) and 2) was the employee genuinely attempting to raise a matter of public concern or simply speaking for personal gain. If the employee was seeking personal gain such as publicity or in retaliation for some other issue, the employee’s speech may not be deemed protected by the court.

The last significant inquiry by the court is whether the employee’s speech was required as part of his/her job. If, for example, a public employee was required to report particular behavior, as strange as it sounds, the employee doesn’t have a First Amendment 1983 claim. On the other hand, if the employee’s speech was discretionary, the employee may have a claim.

At Hollingshead & Dudley, we have handled and are currently handling many First Amendment 1983 “whistleblowing” claims, many of which have received significant media attention. For example, the firm recently handled a case for a former municipal city clerk who reported the city council to the Missouri Attorney General’s Office (“AG’s office”) for violating Missouri’s Sunshine Law. The client alleged (and the AG’s office confirmed) that the municipality was holding secret meetings without taking proper minutes and without opening the meetings to the public, both of which are prohibited by Missouri law.

As a result of the client’s complaint, the AG’s office conducted an investigation and determined that violations had occurred. Subsequent to the AG’s investigation, the city council voted to terminate the client’s employment with the municipality. Our civil rights attorneys brought a First Amendment 1983 claim and argued that 1) reporting Sunshine Law Violations to the AG’s office was a matter of public concern, and 2) the city clerk was not required by law (or otherwise) to file such a report. The case was ultimately successfully settled.

In another example, the firm currently represents four Cuba, Missouri police officers who were terminated after reporting the Chief of Police to the Missouri State Highway Patrol for, among other things, misappropriation of city funds from the City of Cuba. Although the prosecuting attorneys’ office didn’t file charges because it wasn’t sure it could prove the case beyond a reasonable doubt, the officer’s “speech” was nonetheless protected under the First Amendment. The police officers were under no legal duty to report the chief and engaged in protected speech by doing so.

This particular case brings up an important topic. In order to prevail on a First Amendment 1983 case, the employee does not have to actually be right that a violation of law has occurred. Rather, if the employee acted in good faith, his/her activity is protected by 42 U.S.C. § 1983. If your First Amendment 1983 case is successful, you would be entitled to, among other things, compensation for the wages you lost as a result of being wrongfully terminated. The pay would accumulate up to the point of trial. In some instances, the trial judge may also award what is known as “front pay.” Front pay is wages from the point of trial forward (oftentimes for a year or two). Judges usually award front pay in cases where the governmental entity has “black-listed” or “black-balled” the client, making it difficult if not impossible for the client to obtain similar work elsewhere. Both front pay and back pay are offset by wages you may have earned at a future employer prior to the resolution of your 1983 case.

Also important to note, unlike 14th Amendment 1983 claims, First Amendment 1983 claims in Missouri come under a slightly different standard than the “deliberate indifference” standard seen in other types of 1983 cases (such as police brutality). The standard in Missouri’s federal courts is what is known as the “motivating factor standard.” The easiest way to explain the motivating factor standard is in the same manner our civil rights attorneys explain the standard to a jury. Imagine an 8 ½” by 11” piece of paper. On that piece of paper is listed every single reason the government claims to have terminated the employee. It will likely include things such as poor attendance, tardiness, attitude problems, and poor work quality. Even if those things are true, you can still win your case, so long as you can prove more likely than not that more than half of the page was an illegal reason for terminating you. In the context of First Amendment 1983 claims, that means, no matter what other reasons the government is claiming for having terminated you, if a jury believes that your whistleblowing constituted more than “half of the page,” you will win your case. In short, if a jury believes that the governmental entity’s decision was predominantly based on your whistleblowing, you will win your case.

If you believe that your First Amendment rights may have been violated by your governmental employer, and you experienced severe retaliation as a result (such as termination), please contact our firm immediately for a free consultation.