First Amendment Retaliation Claim Survives Motion to Dismiss; Sign-Removal Accusation Was a “Matter of Public Concern”

In Vail v. The Town of Cayuta et al, 2021 WL 1788523 (WDNY May 5, 2021), the court held that plaintiff (a public employee and candidate for public office) plausibly alleged a First Amendment retaliation claim. This decision is instructive as to when speech is “on a matter of public concern”, which it must be in order to form the basis for such a claim.

Here, in sum, the plaintiff (who was running for the position of Highway Superintendent) alleged that he was terminated from his job (as the Highway Machine Equipment Operator for the defendant town) in retaliation for his contention, during a news interview, that his supervisor (and incumbent-opponent in the election) had removed his campaign signs.

The court summarized the law as follows:

The Supreme Court’s decision Pickering v. Board of Education, 391 U.S. 563 (1968), provides public employees some protection from adverse action being taken against them due to their speech. Specifically, the Court has determined that the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. Pickering and its progeny identify two inquiries to guide the interpretation of the protections accorded to public employee speech.

First, it must be determined whether the employee spoke as a citizen on a matter of public concern. If the answer is no, then there is no First Amendment cause of action based on the employer’s reaction. If the answer is yes, then a First Amendment claim may arise, and the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.

The Supreme Court has defined a “matter of public concern” as one that relates to any matter of political, social, or other concern to the community. Whether an employee’s speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record. [Citations and internal quotation marks omitted; cleaned up; formatting altered.]

In determining that plaintiff’s speech did indeed constitute a matter of public concern, the court explained:

Here, the speech at issue is an interview Plaintiff participated in for a local news outlet, WETM News, wherein he discusses his missing campaign signs and his belief, based on photographs taken at the location, that Beach was behind the sign removal. Plaintiff argues that this is a matter of public concern because Beach’s alleged actions “bear directly on his character as an elected public official,” who was seeking re-election at the relevant time, and Plaintiff’s interview brought such conduct to light. Specifically, Plaintiff claims that in substance, his interview expressed concern that Defendant Beach was “willing to cheat to win.” Id. Indeed, in the interview Plaintiff indicated that he felt it would be “sad” if someone who was participating in the “nonsense” of removing campaign signs prior to an election was ultimately elected to a Town position.

While Plaintiff’s interview may have been partially motivated by his personal angst over the situation, the Second Circuit has made clear that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern. As noted above, motive is not a dispositive inquiry. In fact, speech on a purely private matter, is that closely tethered to an individual employee’s conditions of employment. That is simply not the case here. Plaintiff is not using the issue of stolen signs to seek changes in the workplace. Rather, on the whole, Plaintiff’s interview can be fairly characterized as constituting speech on a matter of public concern as the interview focused on the fact that it was Plaintiff’s opposing candidate—Beach—who allegedly was removing the signs. Such actions reflect on the character and fitness of a candidate seeking re-election to local office. It simply cannot be said that a candidate’s character and conduct during an election is not a clear matter of public concern. Indeed, the Supreme Court has made clear that a discussion of a candidate’s “character and…fitness” for office is at the heart of the First Amendment, even when it contains more suggestions and arguments than facts. [Internal citations and quotation marks omitted; cleaned up.]

The court further explained, inter alia, that this situation was distinguishable from the Second Circuit case of Ruotolo v. City of N.Y., 514 F.3d 184 (2d Cir. 2008), which involved what the court determined to be a “personal grievance,” since here, plaintiff’s assertions “do not simply hint at what may be a broader public purpose but directly relate to the character and fitness of an individual running for a town position—a clear matter of public concern which may have an immediate impact on the voting public.”

Share This: