N.J. policewoman fails to prove she was punished for criticism

Wednesday, September 29, 2010

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A Jersey City, N.J., policewoman could not establish that she was retaliated against after she criticized the city’s handling of a purchase bid, a federal appeals court panel has ruled.

Mary Revell, who has been a police officer since 1998, objected to the way the city purchased a new police-radio communications system in 2002. She told various political officials and agencies that the city and the department should have had an open bidding process rather than pre-selecting a company.

She wrote complaint letters to the governor of New Jersey, the U.S. Attorney’s Office in New Jersey and other public figures, signing the letters as “Mary Revell, Private Citizen.” She wrote these letters in fall 2004 and early 2005.

Revell contended that after her letter-writing campaign, the police department and city subjected her to a series of retaliatory acts, including a random drug test, negative comments such as “half-cop” and “bad catalyst” and a transfer to a less-desirable job — from the property room to patrol —in January 2006. She also alleged that one of her brothers was harassed by city police officers and her other brother, a city firefighter, had his job threatened.

She sued in federal court, contending that these actions constituted unlawful retaliation in violation of the First Amendment. U.S. District Judge Joseph A. Greenway rejected her claim in September 2009 in Revell v. City of Jersey City. Greenway reasoned: “Plaintiff's transfer and the alleged comments and behavior directed towards her do not amount to punitive conduct that would deter a person of ordinary firmness from exercising her free speech rights.”

On appeal, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed in its Sept. 17 opinion in Revell v. City of Jersey City. The 3rd Circuit recognized that Revell was speaking as a citizen in her letters — not in her official capacity as a public employee — and thus her claim survived the U.S. Supreme Court decision Garcetti v. Ceballos. In that decision, the Court ruled that much public-employee speech, speech “made pursuant to official job duties,” is not entitled to First Amendment protection.

Even though Revell spoke as a citizen, the 3rd Circuit ruled against her because it found that she failed to show evidence of retaliation. “Revell’s allegations, which were equivalent to a few criticisms, admonishments, or verbal reprimands, do not rise to the level of a campaign of retaliatory harassment,” Judge Leonard I. Garth wrote for the panel.

The 3rd Circuit also ruled that the random drug test and the job transfer occurred at least a year after she wrote her letters. This lack of closeness in time between her letters and the resulting actions cast doubt on her claims of retaliation, the court said.

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