Protected speech can be used to prove retaliation

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in Employment Law,Hiring,Human Resources

Government employees who speak out on matters of public importance and are punished for doing so may be able to sue for unlawful retaliation. They may even be able to make those claims years later—if they can show a connection between speaking out and an adverse employment action.

Recent case: Alfonso Davenport works as a university police officer. His duties include patrolling the campus, acting as a shift supervisor, developing firearms training and investigating crimes. He has held the job for nearly a quarter century.

In 1999, Davenport complained to university officials that the Department of Public Safety chief was misusing resources, and that the department lacked adequate equipment, uniforms and parking. In 2002, the chief resigned just before his indictment for alleged illegal misuse of resources.

Davenport applied for the chief’s position several times, but was not selected.

He sued, alleging he was being retaliated against for reporting the lack of resources back in 1999.

The court decided Davenport’s job duties did not include reporting a superior’s wrongdoing or complaining of a lack of police resources. Since the matter was obviously one of public concern—and Davenport was acting as a private citizen since his job didn’t include reporting the problems—his speech was protected under the First Amendment of the Constitution. He could therefore sue for retaliation.

Davenport still lost the case because he was unable to prove that his earlier report was the reason he wasn’t promoted. (Davenport v. University of Arkansas, No. 08-1438, 8th Cir., 2009)

Final note: Clear documentation helps employers win retaliation cases. Be sure you can prove you used objective criteria to select the best candidates for all promotion and hiring decisions.

{ 1 comment… read it below or add one }

Robin Lawson June 25, 2012 at 3:20 am

Alfonso Davenport was my father. He just passed away due to a heartache (so said) june 1, 2012. The University of Arkansas at Pine Bluff really retaliated against my father after he filed his complaint. I am very interested in speaking with anyone that is interested in my father’s case. He was mistreated by this employer up until his death. He was in the process of filing another grievance against his supervisor right before his death. I would welcome to speak with anyone interested in my father’s case.

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