Vt. public employee’s retaliation claims rejected

Wednesday, November 9, 2011

A employee for the city of Rutland, Vt., failed to persuade a federal appeals court to reinstate her claims that officials fired her because she spoke out to defend her former boss and because her new boss’s political affiliation was different from hers.

Debra Bearss worked as the city of Rutland’s information-technology coordinator from January 2006 until March 2008, mostly for then-city treasurer Al Wilkinson, a Democrat. In March 2007, Wilkinson lost his re-election bid to Wendy Wilton, a Republican. Bearss had campaigned for Wilkinson, putting campaign signs in her yard and endorsing him.

After Wilton accused former officials, including Wilkinson, of deleting public documents in violation of state law, Bearss was quoted in the local newspaper, The Rutland Herald, rebutting those allegations. She also defended her conduct at a July 2007 Board of Civil Authority hearing concerning her job performance.

Wilton tried to fire Bearss several times and succeeded in March 2008. In November Bearss filed a federal lawsuit alleging that Wilton, new mayor Christopher Louras and the city violated her First Amendment rights by retaliating against her for statements she made in support of her former boss. She also contended that they improperly terminated her because of her political affiliation.

In August 2010, a federal district court dismissed her First Amendment claims. On appeal, a unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals affirmed the lower and ruled against Bearss in its Nov. 3 decision in Bearss v. Wilton.

With respect to the First Amendment retaliation claim, the 2nd Circuit panel determined that Bearss spoke as  part of her official job duties and, thus, her speech was unprotected in accordance with the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. In Garcetti, the high court ruled that public employees have no First Amendment protection for job-related speech.

Bearss had argued that she made her statements quoted in The Rutland Herald as a citizen, not as a public employee. The appeals court panel thought differently. “Bearss spoke to the newspaper as the city’s information technology coordinator,” the court wrote.

She also argued that she spoke as a citizen at the civil board hearing. The appeals court disagreed, finding that her statements “were motivated by personal interest in responding to criticism of her job performance and not motivated by a desire to advance a public purpose.”

The panel then addressed Bearss’ political-affiliation claim. Bearss claimed that Wilton had stated on a local radio station that once Bearss was terminated, “the last of the political insiders” would be gone. Unpersuaded, the appeals panel wrote that “the evidence does not support Bearss’ contention on appeal that Wilton’s actions were based on any political association between Bearss and the former city treasurer.

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