Suing Your Employer and Staying Employed – Part 2

Courtroom Witness Box
Photo by tracie7779 via flickr

Part I of this post concluded that New Jersey law  protects employees who sue their employer from retaliatory actions only if the subject of the lawsuit involves a clear mandate of public policy.   I now discuss a Third Circuit Court of Appeals ruling (covering NJ, PA and DE) as to whether a public employee is protected from retaliation based on having testified in court.

The Third Circuit addressed the First Amendment protections of a public employee in Reilly v. City of Atl. City, 532 F.3d 216, 228-29 (3d Cir. 2008).  The court quoted from the landmark U.S. Supreme Court ruling in Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), which stated the elements of a public employee’s constitutional retaliation claim. “[A] public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.”

 The Reilly court then cited to U.S. Supreme Court rulings which recognize that “the duty to give testimony” is an “obligation imposed upon all citizens”.  The duty to testify has long been recognized as a basic obligation that every citizen owes his Government, ”It is thus beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”

Green v. Philadelphia Housing Authority.,105 F.3d 882, 887 (3d Cir. 1997) involved a Housing Authority police officer who was transferred from a special unit to regular patrol duty after he voluntarily appeared as a witness at the bail hearing of a longtime friend’s son.  Although Officer Green refused to testify at the hearing after learning that the charges against his friend’s son included organized crime activity, he was nonetheless transferred from the special unit after another officer notified the unit’s captain that Green had appeared as a character witness for a member of a crime organization.  The court held that “there is a compelling reason to find Green’s appearance to be a matter of public concern regardless of its voluntary nature. That reason, of course, is the integrity of the truth seeking process.” Id. at 886.

In the instant case, Reilly assisted the State’s investigation of a fellow officer and testified for the prosecution at trial.  His testimony stemmed from Reilly’s official duties in the investigation.  Since the Garcetti Court had focused on speech contained in an internal memo, Justice Souter there cautioned that “the claim relating to truthful testimony in court must surely be analyzed independently to protect the integrity of the judicial process.” 547 U.S. at 443-44 (Souter, J., dissenting).  In a matter of first impression, the Third Circuit ruled that since a citizen’s obligation to offer truthful testimony in court is necessary to protect the integrity of the judicial process and to insulate that process from outside pressure, a citizen’s obligation to testify truthfully is no weaker when one is employed by the government than in any other capacity.  Since the act of offering truthful testimony is the responsibility of every citizen, the First Amendment protection associated with fulfilling that duty is not vitiated by one’s status as a public employee. That an employee’s official responsibilities provided the initial impetus to appear in court is immaterial to his independent obligation as a citizen to testify truthfully.  The court thus held that Reilly’s truthful testimony in court constituted protected citizen speech and that his claim was not foreclosed by the “official duties” requirement enunciated in Garcetti.

This federal ruling is likely to be followed by New Jersey State courts construing either the federal or State constitution.  A resulting question is whether the protections afforded to employees who testify in court can transcend the limitation described in Part I that to be “protected” from retaliation, an employee’s lawsuit must involve a clear mandate of public policy.  Would an employee who testifies in court against his employer be protected from retaliation by virtue of “testifying”, even in a private dispute with his employer?

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