• Dean Royer

Presenting retaliation claims

Can employees challenge retaliation based on both the age discrimination law and the First Amendment?

The Ninth Circuit recently addressed the question of whether an employee with a claim of retaliation for participating in an age discrimination case is limited to the federal age discrimination in employment law. In Stilwell v. City of Williams (9th Cir. Aug. 5, 2016, No. 14-15540) 2016 U.S. App. LEXIS 14409, Mr. Stilwell sued his employer for retaliation, alleging that he was fired for planning to testify against the City in an age discrimination lawsuit. His claims were based on both the First Amendment (asserted as a 42 U.S.C. section 1983 civil rights claim) and the retaliation provision of the Age Discrimination in Employment Act (29 U.S.C. section 623(d)).

Mr. Stilwell signed a sworn statement that supported a co-worker’s age discrimination claim and agreed to testify in her lawsuit. The City of Williams became aware of Mr. Stilwell’s participation, after which his supervisor criticized Mr. Stilwell’s job performance on multiple occasions and discouraged Mr. Stilwell from testifying. Mr. Stilwell was terminated following an investigation based on his supervisor’s accusation that he neglected security concerns.

The trial court dismissed Mr. Stilwell’s First Amendment claim on grounds the age discrimination law was his sole remedy for a retaliation claim. On appeal, the Ninth Circuit began with a review of prior decisions that addressed the issue of whether a federal law prevented the use of the federal civil rights law (42 U.S.C. section 1983) to remedy an alleged constitutional violation. The court in Stilwell determined that when

Congress creates a right with a law but at the same time limits enforcement of that right through a scheme that is narrower than section 1983, a section 1983 remedy is not available. But when a right is created by the Constitution, if the law’s rights and protections diverge in significant ways from those provided by the Constitution, a section 1983 remedy is available.

The Ninth Circuit then applied this framework to the age discrimination law. It found that the disparities between the rights and protections of that law’s retaliation provision and the First Amendment as enforced through section 1983—including differences in who may sue and be sued, the standards for liability, and the damages available—made the age discrimination law’s protections narrower than the First Amendment’s in some important respects. The court in Stilwell also found that Congress made no express statement of preclusion in the law or in reports leading up to enactment.

Consequently, the appellate court concluded that Congress did not intend to prevent section 1983 First Amendment retaliation suits when enacting the age discrimination law. On this basis, the Ninth Circuit reversed the trial court’s decision.

#FirstAmendment #Retaliation

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