Whistleblower Retaliation Protection: Government Employee Who Testifies Truthfully in Criminal Proceeding Has Retaliation Claim

In Lane v. Franks, 2014 U.S. LEXIS 4302 (S.Ct. June 19, 2014), the Supreme Court reversed lower courts and held that a Plaintiff employee’s testimony in a criminal proceeding is entitled to First Amendment protection from retaliation. In Lane, the Plaintiff employee served as Director of Community Intensive Training for Youth, a program for underprivileged youth operated by Central Alabama Community College. Plaintiff conducted an audit of the program’s expenses and discovered that Suzanne Schmitz, an Alabama State Representative on the organization’s payroll, had not been reporting for work. Plaintiff eventually terminated Schmitz’ employment and Schmitz was indicted on charges of mail fraud and theft concerning a program receiving federal funds. Plaintiff testified, under subpoena in the criminal case regarding the events that led to his terminating Schmitz who was convicted and sentenced to 30 months in prison. The program was at the same time experiencing significant budget shortfalls and terminated Plaintiff and 28 other employees but a few days later, all but 2 of the 29 terminations were rescinded. Plaintiff filed a lawsuit against the President of the College in his individual and official capacities under 42 U. S. C. §1983, alleging violation of the First Amendment by firing him in retaliation for testifying against Schmitz.

In Lane, a unanimous Supreme Court held that the testimony in the criminal proceeding was entitled to First Amendment protection, holding if the speech is made pursuant to the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the inquiry ends. However, if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” The Supreme Court held that the sworn testimony in judicial proceedings is a “quintessential example of citizen speech” because anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth and that obligation is “distinct and independent from any separate obligations a testifying public employee might have to his employer.” The Court explained that the critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties and speech by public employees on subject matters related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. The Court also noted that whether speech is a matter of public concern turns on the “content, form, and context” of the speech and corruption in a public program and misuse of state funds obviously involve matters of significant public concern; and the form and context of the speech–sworn testimony in a judicial proceeding—fortifies that conclusion. The Supreme Court also noted that there was no government interest that tips the balance in the government’s favor and that while the President is entitled to qualified immunity for the claims against him in his individual capacity, the President could not reasonably believe that, when he fired the Plaintiff, a government employer could fire an employee because of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities.

For more information on whistleblower claims, retaliation and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-2117915.html

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Filed under Constitutional Employment RIghts, Retaliation, Whistleblower

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