By Emily Nelson
Jeffrey Heffernan, a police officer in the City of Paterson, New Jersey, sued the City for retaliation after he was demoted from Detective to Patrol Officer for engaging in protected speech. Heffernan was demoted the day after other police officers observed him meeting with a Mayoral Candidate’s Campaign Manager to pick up a campaign lawn sign for his ill mother while he was off duty. However, in Heffernan v. City of Paterson, a Federal District Court dismissed Heffernan’s claims, finding that an employee cannot bring a first amendment retaliation claim based on an Employer’s mistaken perception that the Employee is engaging in political speech—there must be some evidence that the individual actually engaged in the speech for which they are retaliated against.
Heffernan was working as a Police Detective in the office of Police Chief James Wittig during a 2006 Mayoral campaign in Paterson. Although Heffernan was not a citizen of Paterson and was unable to vote in the upcoming election, his mother was. She fell ill and asked Heffernan to pick up a campaign lawn sign for one of the Candidates, who happened to be a former Paterson Chief of Police, and one of Heffernan’s friends. While he was off duty one afternoon, Heffernan and his son met the Candidate’s Campaign Manager on a street corner to retrieve the sign. As fate would have it, a member of the incumbent Mayor’s security detail saw Heffernan on the corner and reported it to Chief Wittig. The next day, Heffernan was told that he was being demoted to Walking Patrol “because of his political involvement” with the Mayoral Candidate. The Chief later testified that Heffernan “breached his trust” and violated an office policy prohibiting overt involvement with a political campaign. Heffernan admitted that he knew the Mayoral Candidate and wanted him to win, but insisted that he was not engaging in political campaigning, but was merely delivering a sign for his mother. Nevertheless, Heffernan was demoted and he subsequently sued the City for retaliation, claiming that his demotion violated his right to free speech and political association.
In response, the City argued that Heffernan had not actually engaged in political speech, and therefore, could not claim that his right to free speech had been infringed upon by his demotion. Heffernan countered that even if he himself had not engaged in political speech, he had at least engaged in expressive speech by picking up the candidate’s lawn sign and displaying it for his mother; and that retaliation based on the perception of political speech was prohibited to the same extent as if Heffernan had actually campaigned for the candidate himself.
The District Court disagreed. It dismissed both of Heffernan’s claims and held:
[A]ctual First Amendment expression is a prerequisite for a free-speech retaliation claim; an employer cannot retaliate for protected conduct unless there was protected conduct in the first place.
In a Catch-22 moment, the District Court acknowledged that retaliation occurred because of the Chief’s mistaken belief that Heffernan was a part of the political campaign, but that regardless, Heffernan had no legal claim for retaliation, because he had not actually engaged in protected speech. Further, the Court found that Heffernan had not engaged in expressive speech, because “nothing in the evidence indicates that Heffernan’s conduct…was intended to convey a message.” The Court concluded:
Under the law of this Circuit, there can be no retaliation claim based on an employer’s mere perception that the plaintiff has engaged in protected speech or expression. By his own account, Heffernan did not speak or otherwise express himself in support of Spagnola’s campaign; he alleges that Defendants retaliated because the incorrectly perceived that he had done so. Under Third Circuit law, there is no such “perceived support” claim.
Because “[I]n the absence of protected speech, a public employee may be discharged even if the action is unfair, or the reasons are alleged to be mistaken or unreasonable,” the District Court dismissed Heffernan’s claims.
Editor’s Note (Jim Cline): This is a fairly unusual fact pattern. As noted, the employee was in something of a “Catch-22.” Nonetheless, the Court’s decision seems questionable. The Employer’s retaliation nonetheless had the “chilling” effect on speech that the First Amendment prohibits. A policy to discharge those exercising political rights, even if based on a misperception that the rights were actually exercised, still has the effect of inhibiting those rights. This Lower Court ruling might well be appealed and the result should be interesting.
