Metropolitan News-Enterprise


Wednesday, February 19, 2003


Page 1


Ninth Circuit Reinstates Suit Over Alleged Whistleblowing, Expands Free-Speech Protections for Public Employees


By a MetNews Staff Writer


A public employee need not be fired or suspended for engaging in protected speech in order to bring a First Amendment claim against the employer, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Reinstating a suit by three public works employees in Salem, Ore., the court said that any act of the government that is “reasonably likely to deter” the exercise of employees’ free-speech rights may be cause for a civil rights suit.

A U.S. magistrate judge had dismissed the case, holding that the actions complained of by the three—such as criticism of their work and false complaints of misconduct—were too trivial to constitute adverse employment actions for which damages could be awarded under 42 U.S.C. Sec. 1983.

Plaintiffs Guido Coszalter, Steve Johnson, and Gary Jones filed suit over a series of actions taken by the city between 1996 and 2000. They alleged that the city was retaliating for complaints they had made to the state Occupational Safety and Health Administration, the city’s risk manager, and to environmental regulators, as well as comments to a local newspaper and other media, concerning dangerous and unsafe conditions including discharges of raw sewage and potential exposure to contaminants under city streets.

The plaintiffs alleged they were wrongly blamed for a cost overrun resulting from additional work required to clean up a discharge they complained of, falsely reprimanded and accused of causing another discharge; and subjected to harassment, including a criminal investigation for which there was no basis.

It was also alleged that the city initiated a petition drive designed to turn other city workers against the plaintiffs, that Johnson was falsely accused of assaulting one of the organizers of the petition campaign and wrongly suspended; that Coszalter was reprimanded on false charges and ultimately fired, although the dismissal was overturned by an arbitrator; that Coszalter was wrongly denied the public recognition that the city typically gives employees who have served 10 years; and that the plaintiffs were given punitive reassignments within the Department of Public Works.

Magistrate Judge Thomas Coffin, hearing the case by designation, held that only a loss of valuable benefits, such as a formal reprimand, reduction in pay, or termination of employment, qualifies as adverse action. To the extent the plaintiffs complained of such actions, he ruled, the case was barred because the length of time that elapsed between each act of protected speech and the adverse action it allegedly triggered was between three and eight months, which Coffin said indicated that the speech could not have been a substantial motivating factor.

But Judge William Fletcher, writing for the Ninth Circuit, said the magistrate judge misread prior Ninth Circuit cases and was wrong on both counts.

“When taken together, it is clear that [the alleged] acts amounted to a severe and sustained campaign of employer retaliation that was ‘reasonably likely to deter’ plaintiffs from engaging in speech protected under the First Amendment,” the judge wrote. “We

therefore hold that the magistrate judge erred in finding that these acts were not adverse employment actions in the context of a First Amendment retaliation case, and in granting summary judgment to the defendants based on that finding.”

Fletcher went on to say that whether the passage of time between an exercise of First Amendment rights and an alleged retaliatory act is just one of many factors that must be considered in determining whether the act was in fact retaliatory, so it was error for the magistrate to decide the issue as a matter of law.

“Even if elapsed time, considered without regard to other circumstances, were the criterion, three to eight months is easily within the time range that supports an inference of retaliation,” Fletcher added.

The case is Coszalter v. City of Salem, 00-36097.


Copyright 2003, Metropolitan News Company