By: Jim Cline and Jordan L. Jones
In Kafka v. Grady, the U.S. District Court for the Northern District of Illinois granted the employer’s summary judgment motion against a former police officer and union president’s First Amendment retaliation claim. The court held that the timing of the officer’s union speech and his alleged deprivations were too attenuated to find that the union speech was a motivating factor behind any adverse employment action.
The officer was an acting union president when he was terminated for making threatening statements to co-workers. The officer had requested vacation time to celebrate his anniversary with his wife and was subsequently given an eight hour work schedule. After reviewing the schedule, the officer stated, “I don’t know if I should shoot Karen . . . or if I should shoot the rest of you all!” while armed and in the presence of several co-workers. The officer also slammed his fists on a table, slapped a wall, and used profanity while making this threatening statement.
Shortly thereafter, the officer requested a “Report of Absence” form so that he could go home because of “physiological distress.” The officer was later terminated and he filed a First Amendment claim against his employer arguing that they retaliated against him for the various union grievances he had filed while in his role as acting union president.
The employer argued that the officer did not establish a prima facie case for a First Amendment retaliation claim and that his termination was the result of his threatening statements, not his union activities.
The court noted that summary judgment is to be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The court also stated that to establish a prima facie case for a First Amendment retaliation claim, the plaintiff must first demonstrate that:
(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation likely to deter such activity; and (3) the First Amendment activity was at least a motivating factor in the decision to impose the deprivation.
The court found that the first two prongs of a First Amendment retaliation claim had been met but that the officer had failed to establish the final element of causation. The officer had contended that he was retaliated against for his union activity and specifically cites an incident where the Police Chief told him that an unfair labor practice charge against the department was the equivalent of a nuclear war. The court found that the Police Chief’s comment was made in 2008 and that the officer’s “schedule change, denied vacation, and the investigation of his outburst at work all occurred in . . . 2010.” The court found that “the temporal proximity of [P]laintiff’s [union] speech and his alleged deprivations too attenuated to find the [union] speech was a motivating factor behind any adverse employment action.”
In addition, the court noted that even if the officer did make a prima facie case for First Amendment retaliation, he would fail in his suit against the Employer because there “is no evidence in the record to suggest that plaintiff’s termination was the result of his speech related to the Union.” Therefore the termination was not retaliatory.
As to retaliation claims, timing matters. In fact, timing matters quite a bit. Courts and labor boards refer to this as “temporal proximity.” Temporal proximity is simply the degree of closeness between the protected activity and the employer action claimed to be the retaliatory act. The closer in time, the stronger the claim and the wider the timing gap, the weaker the claim.
Even if there had been strong “temporal proximity” this case would have been challenging. Plaintiffs who have threatened to shoot up the workplace often don’t find sympathy in court when the get fired for such conduct.
If a union officer is going to be an aggressive in asserting union and member rights they do have the strong protection of law. But it is best for such union officers to avoid extreme misconduct that can provide their employer a colorable basis for firing.
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