Retaliation For Whistleblowing: Public Employees Have First Amendment Protections – 42 U.S. Code § 1983 (Municipal Liability)

42 U.S. Code § 1983 (Freedom of Speech – First Amendment) – Municipal Liability

Municipal employees are protected against retaliation for speaking up about government wrongdoing.  To establish a prima facie case of retaliation under 42 U.S.C. § 1983, a plaintiff must show “(1) that they engaged in a protected activity; (2) that the employer took an adverse employment action against them; (3) that a causal connection existed between the protected activity and the asserted adverse action.”  King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003)

Under the First Amendment, a public employee has a qualified right to speak on matters of public concern.

  1. A public employee has to be speaking as a citizen and not as part of his or her official duties.
  2. A public employee’s speech must be on a matter of public concern.
  3. In order to establish municipal liability, a public employee’s speech must result in an adverse employment action (harassment, denial of promotion, demotion, deprivation of benefits, suspension, termination, etc.).

Public employees have First Amendment protections.  Pickering v. Board of Education, 391 U.S. 563 (1968)

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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…”  42 U.S.C. § 1983

Bryan A. Chapman, Esquire



“Mixed Motive” standard eases the burden of proving discrimination

Adverse actions, such as, workplace harassment and terminations, often occur due to a blend of discriminatory and non-discriminatory motivations.

For instance, an African American employee gets into an altercation with a white employee.  The African American employee is terminated but the white employee is retained.  Both employees have comparable work records and are equally to blame for the altercation.  In this example, the race of the African American employee could be “a motivating factor” in his or her termination.

A race discrimination claim could advance under a “mixed motive” theory.  Plaintiff prevails simply by proving that his or her race was “a motivating factor.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Elements of a “Mixed Motive” Theory:

  1. Plaintiff is a member of a protected group (race, sex, national origin, religion, etc.) and suffered some sort of adverse employment action.
  2. Protected status was “a motivating factor” in the decision.

“[A]n unlawful employment practice is established when the complaining party demonstrates that…[protected status (not including retaliation)] was a motivating factor for any employment practice, even though other factors also motivated [and indeed may have caused] the practice.” [Sec. 107 of the Civil Rights Act of 1991]

In Desert Palace v. Costa, 123 S. Ct. 2148 (2003), the U.S. Supreme Court concluded that plaintiffs could use direct or circumstantial evidence to make the showing necessary to merit a mixed-motive jury instruction.  “[I]t is sufficient for the [plaintiff] to demonstrate that the employer was motivated to take the adverse employment action by both permissible and forbidden reasons…” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004).

Bryan A. Chapman, Esquire




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