Employment

Retaliation

 

Heffernan v. Paterson, NJ

No. 14-1280, Cert. Granted October 1, 2015

Appeal of 777 F.3d 147 (3d Cir. 2014)

A Paterson, New Jersey police officer, Jeffrey Heffernan, was demoted after being observed obtaining a local mayoral candidate’s campaign sign at the request of his bedridden mother. Mr. Heffernan then brought a 42 U.S.C. §1983 action for unconstitutional retaliation under the First Amendment against the City, the former Mayor, the Police Chief, and the Police Administrator.

After a lengthy motion process, which included a previous appeal to the Third Circuit, the lower court granted summary judgment in favor of the Appellees, stating that Heffernan had adequately pleaded and prosecuted his free-association claim but that he had failed to produce evidence that he actually exercised his First Amendment rights, and, as such, was barred from seeking compensation under §1983 for retaliation based only on the perceived exercise of those rights. The Third Circuit later affirmed the lower court’s decision. However, the Sixth and Tenth Circuits have previously ruled that a public employee who is demoted based on mistakenly perceived, rather than actual, speech and association can bring a claim for retaliation, thereby creating conflict within the Court of Appeals.

The U.S. Supreme Court granted certiorari on October 1, 2015 on the question of whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate. Briefs have been filed and oral argument was held on January 19, 2016.

On April 26, 2016, the U.S. Supreme Court held in a 6-2 opinion, that when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior.  The matter was reversed and remanded back to the Third District, with Justices Thomas and Alito dissenting.