Coszalter v. City of Salem
320 F.3d 968, 2003 WL 350313 (2003)
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Rule of Law:
In a First Amendment retaliation claim, an adverse employment action is any action by a government employer that is reasonably likely to deter an employee from engaging in constitutionally protected speech.
Facts:
- Beginning in mid-1996, Guido Coszalter, Steve Johnson, and Gary Jones, employees of the City of Salem's Public Works Department, began repeatedly disclosing health and safety hazards, such as raw sewage discharges, to the media and to state regulatory agencies like OR-OSHA.
- Following a July 1996 disclosure, the City of Salem punitively reassigned Jones and Coszalter to new duties.
- After the employees made further complaints to safety agencies, the City initiated a disciplinary investigation against Coszalter, alleging he was responsible for the violations he had reported.
- Over the next two years, the City subjected the employees to a series of negative actions, including wrongly blaming Coszalter for a cost overrun, issuing a false reprimand, initiating a criminal investigation, and encouraging other employees to circulate a petition against them.
- In March 1998, the City suspended Johnson without pay for ten days based on an accusation of assault.
- That same month, the City issued a reprimand to Jones and reduced Coszalter's pay for allegedly disrupting a safety class.
- In May 1998, Johnson suffered a permanent shoulder injury after being ordered to move heavy manhole covers without mechanical assistance.
- Shortly thereafter, the City terminated Coszalter's employment for allegedly misusing a cell phone, and Jones resigned from his position.
Procedural Posture:
- Guido Coszalter, Steve Johnson, and Gary Jones (plaintiffs) filed a lawsuit under 42 U.S.C. § 1983 against the City of Salem (defendants) in federal district court.
- The parties consented to have the case heard and decided by a magistrate judge.
- Defendants filed a motion for summary judgment, arguing the plaintiffs had not suffered adverse employment actions and could not prove retaliatory motive.
- The magistrate judge granted the defendants' motion for summary judgment.
- Plaintiffs (appellants) appealed the grant of summary judgment to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does an 'adverse employment action' in a First Amendment retaliation claim require the loss of a valuable governmental benefit or privilege, or is it any action reasonably likely to deter an employee from engaging in protected speech?
Opinions:
Majority - Fletcher, J.
No. An adverse employment action in a First Amendment retaliation claim is not restricted to the loss of a valuable governmental benefit or privilege; rather, it is any act that is reasonably likely to deter employees from engaging in constitutionally protected speech. The magistrate judge erred by applying an overly restrictive definition from Nunez v. City of Los Angeles. The proper standard, which prevents government employers from chilling protected speech, considers the deterrent effect of the employer's actions. A campaign of retaliatory acts, including unwarranted investigations, reprimands, harassment, and suspensions, even if they do not result in a direct loss of a 'valuable benefit,' can constitute an adverse employment action. Furthermore, a time lapse of three to eight months between protected speech and an adverse action does not, by itself, defeat an inference of retaliatory motive, which is a question of fact that must be decided based on the totality of the circumstances, including evidence of pretext.
Concurring - Ferguson, J.
No. Government officials cannot discriminate against employees for exercising their First Amendment rights in any manner, regardless of how trivial the retaliatory action might seem. Citing the Supreme Court's decision in Rutan v. Republican Party of Illinois, even a minor act like failing to hold a birthday party for an employee can constitute impermissible retaliation if it is intended to punish protected speech. The First Amendment cannot be trivialized by government employers.
Analysis:
This decision significantly broadens the definition of an 'adverse employment action' for public employee First Amendment retaliation claims in the Ninth Circuit. By rejecting the narrow 'loss of a valuable benefit' standard and formally adopting the 'reasonably likely to deter' test from other contexts like Title VII, the court makes it easier for plaintiffs to state a claim based on a course of conduct or series of harassing acts that might not individually rise to the level of a demotion or pay cut. The ruling protects whistleblowers and other employees from employers who use a 'death by a thousand cuts' strategy of retaliation. It also solidifies the principle that the timing of retaliation is not subject to a bright-line rule, requiring courts to look at all circumstances to determine motive.
