Constitutional Law—The First Amendment Retaliation Doctrine—A Public Employee’s Rights Regarding Perceived Political Association Retaliation

by Kaitlyn Poirier

The Office of the Racing Commissioner was a state run government agency that regulated Michigan’s horse-racing industry. Plaintiffs Jeff Dye, Tammie Erskine, Patrick Hall, and Eric Perttunen were appointed as state racing stewards in the 1980s and 1990s. In January 2005, defendant Christine White was appointed by then-governor of Michigan, Democrat Jennifer Granholm, to serve as Racing Commissioner. White was subsequently confirmed by the Michigan Senate in October 2005. White then appointed co-defendant Gary Post to the Deputy Racing Commissioner position in October 2006.

Following their appointments as Racing Commissioner and Deputy Racing Commissioner, defendants White and Post altered many of the administrative policies and practices in place at the Office of the Racing Commissioner. This included altering the stewards’ duties, requiring the plaintiffs to seek permission to work certain hours, and eliminating “banking” time outside the pay period. The defendants also eliminated the position of Administrative Liaison Steward held by plaintiff Dye and eventually terminated both Dye and Erskine from their positions as racing stewards in June 2009. The plaintiffs claim that these administrative changes were adverse employment actions taken by Democrats White and Post in retaliation for the plaintiffs’ affiliation or perceived affiliation with the Republican Party. The plaintiffs also allege that they were retaliated against for supporting Republican gubernatorial candidate Dick DeVos during the 2006 Michigan gubernatorial election.

The plaintiffs filed a civil action in the United States District Court for the Eastern District of Michigan alleging a 42 U.S.C. § 1983 First Amendment retaliation claim. The plaintiffs sought declaratory and injunctive relief against the Office of the Racing Commissioner and White and Post in their official capacities. The plaintiffs also sought monetary damages against White and Post individually. The plaintiffs’ claims against The Office of the Racing Commission and White in her official capacity were dismissed with prejudice by the district court.

The remaining defendants brought a motion for summary judgment that sought to dismiss the plaintiffs’ claims. The district court granted the defendants’ motion for summary judgment, holding that the plaintiffs failed to meet their burden of proof on a First Amendment retaliation claim. The district court held that each of the plaintiffs failed to meet the three elements of a First Amendment retaliation claim: that each plaintiff (1) engaged in protected First Amendment activity; (2) suffered an adverse employment action; and (3) established the existence of a causal link between the protected First Amendment activity and the adverse employment action. In analyzing the first element, the court held that perceived affiliation to a political party does not constitute a protected First Amendment activity. The district court determined that actual political affiliation is required in order for plaintiffs to be engaged in protected political affiliation. The plaintiffs appealed the district court’s decision to the United States Court of Appeals for the Sixth Circuit. On appeal to the United States Court of Appeals for the Sixth Circuit, held, affirmed in part and reversed in part. Perceived political affiliation is a protected First Amendment activity and is actionable under the 42 U.S.C. § 1983 retaliation doctrine if the employee meets the burden of proof for the remaining two elements of a First Amendment retaliation claim. Dye v. Office of the Racing Commission, 702 F.3d 286 (6th Cir. 2012), petition for rehearing denied, 2013 U.S. App. LEXIS 5892 (6th Cir. 2013).

 

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