Thomas v. County of Riverside The Ninth Circuit Protects Free Speech
The Ninth Circuit Court of Appeals once again confirmed the right of free speech for employees and the protection of that right from retaliation in Thomas v. County of Riverside, 763 F.3d 1167 (2014). Wendy Thomas and Service Employees International Union sued the County of Riverside and certain County employees as individuals after the County took numerous adverse employment actions against Thomas. Thomas argued that the employment actions were taken in retaliation for her exercise of free speech and that the actions therefore violated her First Amendment rights. The County presented business justifications for the adverse employment actions against Thomas. Both parties moved for summary judgment. The trial court granted summary judgment in favor of the County and Thomas appealed. The Ninth Circuit reversed and remanded.
Thomas was hired by the Riverside County Sheriff's Department in 1996, eventually ascending to the role of sheriff’s communications supervisor. Thomas served on a committee that negotiated a new memorandum of understanding between the county and the Service Employees International Union (“SEIU”). Thomas received no disciplinary action her first twelve years of employment, but alleged that as her involvement with the SEIU grew, the adverse employment actions against her began. Thomas argued that the actions were meant to stop her speech and conduct on behalf of the SEIU and were, therefore, in violation of her First Amendment rights.Reasonably Likely to Deter
The Ninth Circuit pointed to its own case, Coszalter v. City of Salem, 320 F.3d 968 (2003) in setting forth the test for whether a plaintiff has made a sufficient showing to overcome a motion for summary judgment. In Coszalter, the court established that a plaintiff must provide evidence of materially adverse employment actions that are reasonably likely to deter protected speech in order to survive a motion for summary judgment.
The Ninth Circuit Court of Appeals then looked at the evidence offered by Thomas to support her case and defeat the County’s motion for summary judgment. Thomas had offered evidence of over thirty adverse employment actions. The trial court had dismissed all of the evidence, saying that the actions did not show retaliation. But the Ninth Circuit found many of the employment actions to be significant. For instance, Thomas was removed from a community college teaching position, which resulted in a loss of annual income of $9,000. Several other adverse employment actions taken against Thomas included:
- Prohibiting Thomas from using break time to travel between work sites, necessitating her use of unpaid time for work travel;
- Rescinding approval of a vacation; and
- Removing Thomas from an unpaid position with the Uniform Committee.
The court pointed out that any of these acts taken alone were significant. However, when taken together, they could suggest to a reasonable juror that there was a general campaign on the part of the County of Riverside to deter Thomas’ free speech, especially since the County had expressed opposition to that speech. Per Coszalter, Thomas had made a sufficient showing to overcome the motion for summary judgment.Pretextual Justifications
Continuing its analysis, the Ninth Circuit stated that once a plaintiff is able to show that the suppression of protected speech was a substantial or motivating factor in the adverse employment action being taken, the employer can only avoid liability by proving that the actions would have been taken even in the absence of the plaintiff’s protected speech. In the case before the court, Thomas claimed that several involuntary work transfers – the adverse employment actions in this instance – followed shortly after her acts of protected speech. She further argued that the speech was the motivating factor because the County expressed opposition to her speech. Finally, Thomas offered evidence that the county’s business justifications for the transfers were simply pretext to cover the actual reasons for the actions.
As part of its decision, the Ninth Circuit reminded the lower court that on a motion for summary judgment, a plaintiff need only present a genuine issue of material fact in dispute in order to prevail. Here, Thomas had presented significant adverse employment actions taken after protected speech, with dubious business reasons offered as justifications. When the evidence was considered together, a factual issue as to whether the county retaliated against Thomas for her exercise of free speech existed. Thomas met her burden for overcoming the county’s motion for summary judgment.
Thomas is now free to proceed on her claim of retaliation in the trial court.
If you have suffered adverse actions in your employment situation and believe that the reasons being offered are not valid, or if you believe that you are being retaliated against by your employer due to exercising your First Amendment Rights, contact the employment attorneys at Nassiri Law Group. We practice in Orange County, Riverside, and Los Angeles. Call (949) 375-4734 today to schedule an appointment.