By: Jim Cline and Jordan L. Jones
In Schmalz v. Village of. Riverside, the U.S. District Court, Northern District of Illinois dismissed a Police Union’s Presidents which hadalleging retaliation in violation of the First Amendment. The officer alleged that the Village and its officials failed to promote him based on his union activity and endorsement of a former trustee for mayor in the Village election. The court held that the officer had “sufficiently proved a connection between the political activity and the failure to promote.
The officer advocated in union meetings and later helped campaign for a former trustee for mayor in the April 2013 Village election. Leading up to the election, the incumbent Mayor Krochmal “publicly criticized and threatened . . . [the officer] because . . . [the officer] did not support the incumbent Village Interest Party.”
Shortly after the election, Krochmal replaced the police chief and the officer was not promoted to lieutenant even though he was the only eligible candidate for the vacant position. In addition, the officer was removed from a coveted task force where he had served as a supervisor and was later told that same-day by new police chief Niemann that “the vacant lieutenant position had been eliminated and that . . . [the officer] ‘would never be promoted.’” Police chief Niemann later placed the officer on desk duty.
The court stated “[i]n order to withstand a motion to dismiss a [P]laintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’” The court also noted that in order to state a First Amendment claim for retaliation, a public employee must contend that: “(1) his speech was constitutionally protected; (2) the protected speech was a ‘but-for’ cause of the employer’s action; and (3) he suffered a deprivation because of the employer’s action.”
The employer contended that the officer had not “sufficiently alleged that he was not promoted or allowed to work light duty because of his political association or union activity.” The employer emphasized that:
The alleged derogatory statements about . . . [the officer] were made by Krochmal . . . [and a former trustee which] both of whom had left office by May 6, 2013, and therefore, had no authority over decisions impacting . . . [the officer] after that date.
The court “a defendant must have ‘participated directly in the constitutional violation’ to be liable under §1983 . . . [and] that this participation requirement is satisfied where the alleged deprivation occurred with the official’s knowledge and consent . . . .”
He must know about the conduct, facilitate it, approve it, condone it, or turn a blind eye. In short, some casual connection or affirmative link between the action complained about and the official sued is necessary for §1983 recovery.
The court held that in this case, the officer “had not sufficiently alleged a causal connection between the adverse employment action and the employer who were in office at the time of the alleged deprivation.” The court stated that the officer “does not allege that those Defendants knew about his political activity and consented or condoned the adverse employment actions against him.”
Union activities are generally protected by the First Amendment. Union participation in political campaigns is especially accorded First Amendment protection.
This case turns less on those First Amendment principles than some technical requirements under Section 1983 procedures. The federal civil rights law allows recovery from individual public officers and officials but only when they participate in the violation. Here the court concluded that the officials that could have caused the retaliation had already left the City and could not participate in the decision.
There is still something amiss in this logic. The officer had plead that he was told he would never be considered for promotion and was reassigned. The court did not give sufficient weight to the possibility that the chief could have been motivated to retaliate by his loyalty to the previous Mayor. This probably should have been left to a jury to ultimately determine. This rapid dismissal result, though, is not out of the ordinary — it’s well known in plaintiff attorney circles that many federal courts are quick to dismiss what they view as marginal civil rights case to keep their dockets clear.
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