The Sixth Circuit recently held that Michigan state employees could base First Amendment political-affiliation and protected-speech retaliation claims on their perceived political affiliations, even absent actual affiliations with the party in question. Dye v. Office of the Racing Comm’n, No. 11-cv-1828 (6th Cir. Dec. 18, 2012). It’s important for government and private employers alike to appreciate the import of this decision, and it’s noteworthy that this decision widens a split between the Sixth and Third Circuits.
Four Racing Stewards working for Michigan’s Office of the Racing Commissioner (“ORC”) alleged that the ORC Commissioner and Deputy Commissioner retaliated against them based on their perceived political affiliations. Specifically, they claimed that the Commissioner and Deputy Commissioner, who were political appointees of Michigan’s Democratic Governor, did so because they perceived them as being affiliated with the Republican Party and because they engaged in political speech during the 2006 Republican gubernatorial election and confirmation process. On these bases, they filed an action in the U.S. District Court for the Eastern District of Michigan alleging a § 1983 First Amendment retaliation claim.
The district court granted the defendants summary judgment, stating that “none of the stewards had established that they were affiliated with the Republican Party or [the Republican] gubernatorial candidate[.]”
Sixth Circuit Ruling
The Sixth Circuit (majority) began its analysis by noting that protected-speech and political-affiliation retaliation claims are governed by the First Amendment retaliation doctrine. To establish a prima facie case under this doctrine, a plaintiff must show (1) he or she engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him or her that would deter “a person of ordinary firmness” from continuing to engage in that conduct; and (3) there is a casual connection between elements one and two – that is, the adverse action was motivated at least in part by his protected conduct. If the employee establishes a prima facie case, the employer must show by a preponderance of evidence that the adverse action would have been the same absent the protected conduct.
Analyzing the factual record under this framework, the Sixth Circuit reversed the district court’s ruling, holding that the plaintiffs were protected against political affiliation discrimination regardless of whether they actually were affiliated with the Republican Party. In this regard, the court stressed that “the critical inquiry in certain political-affiliation retaliation cases is the motivation of the employer[.]”
This holding diverges from the requirement in the Third Circuit that a plaintiff make a showing of actual (not just perceived) political affiliation. Ambrose vs. Twp. of Robinson, Pa., 303 F.3d 488 (3d Cir. 2002).
This decision serves as another reminder that retaliation claims come in all shapes and sizes (we examined retaliation claims based on familial relationships in a recent post), and that employers need to be cautious about their reasons for any adverse employment actions. Plus, this case shows that, in some instances (and in the Sixth Circuit in particular), a claim that a supervisor retaliated against someone based on a misperception as to his or her affiliation or conduct could form the basis of a retaliation claim.