Case Of Appellant: 42 USC: 1983 Application To Employment Dismissal

Re: Brief of Appellant: 42 USC § 1983 Application to Employment Dismissal Case

II. The District Court erred in disregarding Mason County District Attorney’s Office involvement with respect to the firing of Mr. Brady, an independent contractor, who was fired in retaliation to his comments criticizing the Mason County District Attorney’s Immigration policy, and in concluding that the Pickering test only protects full-time government employees.

The District Court incorrectly held that the Pickering protections are only meant to protect full-time governmental employees, and not employees of private agencies who may be acting as independent contractors for the government. The United States Supreme Court has clearly established that
independent government contractors like Mr. Brady are not to be terminated for exercising their rights under the First Amendment. See Bd. Of County Comm’rs v. Umbehr, 518 U.S. 668, 672 (1996) (declaring “the right of independent government contractors not to be terminated for exercising their First Amendment rights”); see also O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 723 (1996) (“Independent contractors, as well as public employees, are entitled to protest wrongful government interference with their rights of speech.”)

The United States Supreme Court has repeatedly rejected arguments that allege the Pickering test does not extend to independent contractors.
The court emphasized that allowing the constitutional claim to turn on a distinction between employees and independent contractors would invite manipulation by government, which would avoid constitutional liability simply by attaching different labels to particular jobs. Bd. Of County Comm’rs v. Umbehr, 518 U.S. at
679.

Given that principle, the District Court was wrong in limiting protection to Brady’s speech. There should be no deferential merely because he was supervised by Arrowmax. The Constitution guards the basic liberties of all citizens, and thus one does not lose its protected status simply because it has been uttered by a particular class of persons or entities. The “identity of the speaker,” this Court has held, does not deprive “speech of what otherwise would be its clear entitlement to protection.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978). Brady’s status as an employee of a government contractor, therefore, has no independent constitutional significance. Rather, speech on matters of public concern is entitled to the highest constitutional protection and should be evaluated under the Pickering test. Pursuant to Pickering, four inquiries guide interpretation of the constitutional protection for determining if the retaliation was justified. Springer v. Henry, 435 F.3d 268 (3d Cir. 2006). First, the plaintiff must demonstrate that he engaged in speech that is a matter of public concern. Id. The court will then employ a balancing test “to determine whether an employee’s interest in the speech outweighs the state’s countervailing interest as an employer in promoting workplace efficiency and avoiding workplace disruption.” Id. (quoting McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). The plaintiff must then prove that the protected activity was a substantial motivating factor in the retaliatory action. Id. Finally, the burden then shifts to the defendant to demonstrate that the allegedly retaliatory action would have occurred despite the protected conduct. Id.

A. Speech on Matters of Public Concern, Regardless of the Identity of the Speaker, is entitled to the Utmost Protection.

The protected status of speech is a question of law, Baldassare v. N.J., 250 F.3d 188, 195 (3d Cir. 2001), and requires a two-part inquiry. First, it must address a matter of “public concern.” Second, the court must balance the relevant interest to determine if the government’s interest as an employer in promoting the effective and efficient fulfillment of its public responsibilities outweighs the public employee’s interest as a citizen in speaking out on matters of public concern and the value of the community at large of being free to hear such speech. Azzaro v. County of Allegheny, 110 F.3d 968, 976 (3d Cir. 1997) (en banc). Following this analysis, the District Court incorrectly granted a motion to dismiss on the issue of protected speech. (J.A.-9).

1. Brady’s speech regarding Mason County’s Immigration Policy Undeniably Qualifies as a Matter of Public Concern.

The court inaccurately determined that Brady’s speech was not a matter of public concern, and subsequently determined that his speech was not protected under the First Amendment.
Public employees have a First Amendment right to speak freely on matters of public concern. Perry v. Sindermann, 408 U.S. 593, 597 (1972). Brady's conduct in speaking out against Mason County’s illegal immigration policies and the potential wrongdoing or breach of public trust on the part of government officials is of obvious public concern given that the initiative is supported by taxpayer dollars, which citizens ordinarily have the right to comment freely. Thus, the court erred in its conclusion. Here, Mr. Brady spoke as a citizen regarding a matter of public concern, and the lower court’s finding should be reversed here on
appeal.

The First Amendment plainly protects Mr. Brady against retaliation for his speech. Baldassare v. N.J., 250 F.3d 188 (3d Cir. 2001). This Court has repeatedly rejected arguments that the freedom of speech is lost to the public employee who elect to speak out on issues that are outside the scope of their job responsibilities.