By: Loyd Willaford and Clive Pontusson
In Derby v. City of Pittsburg, a Federal Court in California ruled that Internal Affairs Investigator Wade Derby could not prove that there was a direct link between his statements in court relating to suspicious practices at the Pittsburgh Police Department and being fired from his job. The Court ruled that Derby’s statements in court were not protected by the First Amendment.
Wade Derby had been an Internal Affairs Investigator with the Pittsburg Police Department (PPD) for many years. In 2012, a coworker accused Derby of making sexually inappropriate comments to her. Following an investigation, Derby and the Police Department reached a settlement agreement with Derby agreeing to resign on January 8, 2016. Derby continued in his job investigating PPD officers. In early October 2015, Derby tried to negotiate with the Department to extend his employment, but these negotiations went nowhere. The Department made an initial proposal to make small changes to the agreement, but eventually rejected all of Derby’s requests to keep his job. In a criminal trial on October 16th, 2015, Derby was called into a court hearing to explain his investigation of a PPD Officer. Derby claimed that in this hearing, he exposed the fact that the department had not disclosed personnel documents in the past in violation of California law. Derby resigned in accordance with the settlement agreement on January 8th.
Derby’s lawsuit had two components. First, he argued that when he testified in the court hearing, he was speaking about a matter (the Department’s unwillingness to turn over damaging information about their officers) that was of concern to the public, and that therefore his speech on this issue was protected by the First Amendment. Second, Derby argued that because he made these comments, the Department retaliated against him by rejecting his offers to change the settlement agreement
The City of Pittsburg argued that the facts didn’t prove either of Derby’s two points. They argued that Derby’s own testimony proved that in the hearing he only spoke to the Judge about the basic “what” and “how” of his investigation of the officer. He was making these statements as part of his official duties as an officer, not as a citizen speaking on a matter of concern to the public. The City also argued that since their refusals to consider Derby’s job occurred before the October 16th hearing, it was not logical to say retaliation for the hearing occurred before the hearing.
The Court ruled in the City’s favor on these two points and dismissed Derby’s lawsuit. Regarding Derby’s free speech rights, the Court applied a clear rule from the U.S. Supreme Court:
The Supreme Court has held that public employees enjoy First Amendment protection when they speak as a citizen addressing matters of public concern. But when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
The Court relied on the fact that Derby made his statements about failure to turn over personnel files in response to the judge’s questions (not volunteering the information, or “speaking out” about the issue) and that therefore it was clear he made them as a public employee, not a concerned citizen.
Finally, the Court ruled that even if Derby’s statements had been protected by the First Amendment, there was no connection between his testimony on October 16th and the City’s refusal to consider changing the terms of his Settlement agreement. As the Court concluded,
At most, plaintiff relies on temporal proximity to support his claim that the City retaliated against him in various ways. Even if temporal proximity alone were sufficient to establish a causal link, which the Court questions, plaintiff has not identified any evidence suggesting that any of the alleged adverse acts were done for a retaliatory motive, nor has plaintiff submitted any evidence rebutting the City’s evidence that the City … had a legitimate, non-retaliatory reason for making the various decisions at issue.
Derby had presented evidence that after the hearing the City continued to refuse his requests. But the Court decided these refusals didn’t prove retaliation, considering the fact the agreement that Derby would resign was put in place long before the October 16th hearing occurred.
This case is an example of the high burden employees face when raising First Amendment retaliation claims for speech made while in an official capacity. Wade was speaking on behalf of the department in a court hearing. Wade cited examples to the Court where public employees were retaliated against for giving testimony in private lawsuits, but as the Court points out, the standard for retaliating for private speech is different than the standard for speech made while representing an employer. This is because the employer has a right to control speech made in its official name. This case also contained some bad fact for the officer, including that he had previously agreed to resign before the alleged retaliatory acts occurred.
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