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Jan. 23 — A Paterson, N.J., police officer demoted because of his suspected political support after he was observed picking up a campaign sign for the mayor's opponent can't pursue a First Amendment retaliation claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983) because he didn't actually engage in protected activity, the U.S. Court of Appeals for the Third Circuit ruled Jan. 22.
Affirming summary judgment for Paterson and its former mayor, police chief and police administrator, the court said Jeffrey Heffernan's testimony that he obtained the campaign lawn sign for his mother's use, he lived outside the city and he wasn't an active supporter of the opposition candidate prevents him from establishing a First Amendment free speech or freedom of association claim.
Heffernan contended he has a First Amendment retaliation claim because city officials demoted him based on the assumption he was supporting Lawrence Spagnola, a former police chief and friend of Heffernan's, who was running against Mayor Jose “Joey” Torres.
But the Third Circuit said an adverse employment action based on the city's mistaken belief Heffernan was engaging in protected conduct can't form the basis of First Amendment retaliation.
Rather, a public employee must actually engage in protected speech or association to pursue a Section 1983 claim against city officials based on First Amendment retaliation, the court said.
Heffernan's claims based on a “perceived support” theory, that the city retaliated because it mistakenly believed Heffernan was actively supporting the mayor's opponent, “is squarely foreclosed by our own binding precedent,” Judge Thomas I. Vanaskie wrote.
Circuit precedent holds “a free-speech retaliation claim is actionable under Section 1983 only where the adverse action at issue was prompted by an employee's actual, rather than perceived, exercise of constitutional rights,” the court said. “All of our sister circuits to consider this issue in the context of a free-speech claim have reached the same conclusion.”
Heffernan argued the Third Circuit nevertheless should allow him to seek relief under Section 1983 based on a perceived free association claim. He cited a U.S. Court of Appeals for the Sixth Circuit decision that a public employer's retaliation against a group of employees based on a “mere assumption” about the employees' party affiliation supported a Section 1983 retaliation claim (Dye v. Office of the Racing Comm'n, 702 F.3d 286, 34 IER Cases 1230 (6th Cir. 2012)).
The court said “we have no reason to believe” Dye “can be reconciled” with Third Circuit precedent regarding free-speech retaliation claims. “But beyond that, we are not convinced Dye provides any reason to depart from our established holding on this point,” Vanaskie wrote.
An adverse employment action based on the city's mistaken belief Heffernan was engaging in protected conduct can't form the basis of First Amendment retaliation, the Third Circuit said. It found a public employee must actually engage in protected speech or association to pursue a Section 1983 claim against city officials.
The Sixth Circuit in Dye said it was following other circuits that have ruled in First Amendment cases that a public employer may not discipline an employee for remaining politically neutral or silent, Vanaskie wrote. But Heffernan isn't claiming the city retaliated for his political neutrality, but rather that it retaliated based on a mistaken belief he was supporting the mayor's opponent, the court said.
It's not a constitutional violation for a government employer to discipline an employee based on “substantively incorrect information,” even if the employer “erroneously believes that the employee had engaged in protected activity under the First Amendment,” Vanaskie wrote.
A First Amendment retaliation claim requires an employee actually to engage in protected speech or association, the court said. Since Heffernan can't show either, his claims were properly dismissed, the court said.
Judges Morton I. Greenberg and Robert E. Cowen joined in the decision.
Mark B. Frost & Associates represented Heffernan. Lite DePalma Greenberg, Dwyer Connell & Lisbona, Patters & Della Peitra, Chasan Leyner & Lamparello and McElroy Deutsch Mulvaney & Carpenter represented the city and individual defendants.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/Heffernan_v_City_of_Paterson_No_141610_2015_BL_14920_3d_Cir_Jan_2.
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