By: Erica Shelley Nelson and Sarah Burke
In Hernandez v. City of San Jose, two police officers alleged they experienced adverse employment actions in violation of their First Amendment rights after one of the officers reported time sheet fraud. The City conceded the fraud reports were protected by the First Amendment but claimed there was no evidence that the report led to an “adverse action” against the officers. The Ninth Circuit rejected the City’s claim that was entitled to summary judgment, finding that unresolved issues existed that warranted a trial.
Officer Luis Hernandez believed that time-sheet fraud was occurring in the San Jose Police Department. Before speaking out over this fraud, two of Hernandez’s supervisors warned him that he should not raise the issue to anyone. Undeterred, Hernandez informed the Department of his concerns. After speaking out, Hernandez was downgraded in his performance review, his administrative position was eliminated, he was reassigned to work patrol, and he and his partner were denied admission to the Gang Investigations Unit and Family Violence Unit even though they were among the most senior officers who applied.
Hernandez and his partner, Officer Cindy Calderon, brought claims of First Amendment retaliation based on Hernandez’s speech over time-sheet fraud. The district court granted summary judgment to the City, finding that Hernandez and Calderon failed to raise a genuine dispute of material fact as to whether Hernandez’s speech was a substantial or motivating factor in the alleged adverse employment actions that followed.
However, the Ninth Circuit reversed. Motive is a question of fact and very little evidence is necessary to raise a genuine issue of fact regarding an employer’s motive. Any indication of discriminatory motive may suffice to raise a question that can only be resolved by a fact-finder. The Ninth Circuit found that the warning by two supervisors to not speak out was enough to provide a causal connection between the speech and the adverse actions that followed. Even though the supervisors were not directly involved in the adverse decisions, the Court believed they could have influenced the process.
In summary, two police officers had triable First Amendment claims for retaliation after one officer spoke out about time sheet fraud and both officers then experienced a series of adverse employment actions. The warning of two supervisors to not speak out, even though the officers were not directly involved in the actions, was enough to provide a causal connection.
Generally speaking, often a key issue in First Amendment claims is whether the speech is in fact “protected speech” giving rise to a viable claim. If the speech at issue involves a matter of “public concern,” rather than an employee’s personal job duties or responsibilities, then the speech is protected under the First Amendment. This is not always an easy determination and should be vetted by an experienced labor or employment attorney.
Here, the Department conceded that time-sheet fraud necessarily involves a matter of public concern, therefore, it is protect speech. The sheer volume of the adverse employment actions (which were multi-fold) and the short timing between the speech and the actions, no doubt persuaded the Ninth Circuit to overturn the district court’s finding that there was no causal connection between the speech and the adverse employment actions. The Appellate Court made the right decision in this case.
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