By Erica Shelley Nelson and Sarah Burke
In White v. City of Athens, a former Alabama police officer alleged he was retaliated against after he was fired for reporting police corruption to the local newspaper. The City argued the officer was terminated for his improper use of police databases. The US District Court for the Northern District of Alabama sided with the officer because he had shown other officers had used the police database for similar purposes and not been disciplined, creating an inference of retaliation.
Jason White was hired by the Athens Police Department in 1999 before being promoted to sergeant in 2005. After this promotion, White took over supervisory duties and began to uncover what he considered unsavory secrets. In 2009, such secrets came to light when the department faced a DUI cover up scandal. The police captain deleted police records from computers, pulled over a mail man and destroyed paper records, and asked another officer to lie about the arrest. As the scandal was unfolding, White was communicating to a local newspaper reporter about the cover up and corruption in the department. When department officials learned that White had reported information to the newspaper, they began targeting him. Ultimately, White was terminated in 2012 for improperly using police databases for personal use.
White filed a suit against the Department, alleging interference with his First Amendment right to speak to the newspaper. While an employer may not discharge an employee for speech that is protected under the First Amendment, a Court must still balance the employee’s interests against the employer’s interest of promoting efficiency. In applying this test, the district court found that:
A core concern of the first amendment is the protection of the ‘whistle-blower’ attempting to expose government corruption. After carefully weighing the competing interests of White and the Athens Police Department, the Court concluded that on the facts presented in the complaint, Mr. White’s speech was entitled to protection under the First Amendment.
In summary, an Alabama district court found a police officer could proceed with his claims of retaliation against the city of Athens after he was terminated for misusing police databases. The district court found that because other officers had engaged in more serious misconduct, an inference was created that the real reason for the termination was the officer’s speech to the local newspaper.
This case presents the issues of “proportionality” and “consistency” that often arises not only in First Amendment cases, but in discrimination cases and union grievances.
When an employer is considering disciplining an employee, it is critically important that discipline be distributed proportionally and consistently throughout the workforce. In this case, the department improperly fired the officer for misusing the police databases when other officers had used the databases and not been disciplined at all.
Likewise, in discrimination cases, an employee who can demonstrate that they were singled out and treated worse than other employees in similar circumstances, will have a greater likelihood of showing that they were targeted unfairly or discriminatorily.
Governmental employees are often not “at-will” and can only be fired for “cause” or “just cause.” In a just cause termination, the union can similarly argue that the employer violated just cause by disciplining an employee disproportionately than other employees for similar offenses. This can be a pretty compelling argument for the arbitrator, especially if there are numerous examples of proportionality among similarly situated employees, and only the grievant was treated differently.
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