Termination for Circulating Rumors Qualified Immunity 1st Amendment Protection

De Ritis v. McGarrigle, PICS Case No. 17-1136 (3Cir. June 29, 2017) Krause, J. (24 pages).

Public defender was entitled to qualified immunity for terminating a subordinate attorney for circulating rumors regarding that attorney's transfer to a lower-ranked unit, where the attorney's circulating of rumors was not protected by the First Amendment because he was speaking as an employee. Order of the district court reversed.

The Public Defender's Office for Delaware County appealed from the denial of its motion for summary judgment on appellee Joseph De Ritis' complaint alleging wrongful termination. Appellee was an assistant public defender for Delaware County; consistent with the progression for attorneys in the public defender's office, appellee was ultimately promoted to a "trial team" assigned to handle trials in a particular judge's courtroom. However, in June 2012, appellee was transferred back to handle juvenile court cases, ostensibly due to staffing changes necessitated by another assistant public defender's medical leave and appellee's expertise in juvenile law.

Although appellee agreed to the transfer, he suspected there were other reasons for the transfer, and asserted that two other attorneys in the public defender's office told him that he was transferred because he took too many cases to trial rather than having his clients plead guilty, against the preferences of the court's president judge. Appellee began informing judges, private attorneys, and colleagues in the public defender's office that he was "being punished" for "taking too many cases to trial," although appellee asserted that he never shared this information on the record while representing clients in court. Appellee repeated the allegations to county councilors, suggesting his alleged demotion implicated the constitutional rights of criminal defendants by chilling public defenders against advising their clients to seek trial. When the Public Defender, Douglas Roger, learned of appellee's circulation of rumors regarding his transfer, Roger terminated appellee.

Appellee filed the present suit, claiming his termination violated his 1st Amendment rights. Roger, as Public Defender, moved for summary judgment, asserting qualified immunity. The district court denied the motion, ruling that Roger had violated appellee's free speech rights and that such rights were clearly established.

On appeal, the court first noted that public employees' 1st Amendment rights were limited by the government's interest in efficient provision of public services. Accordingly, the court held that appellee's speech at issue was protected by the 1st Amendment only if he spoke as a citizen and not an employee, if his speech involved a matter of public concern, and if his employer lacked an adequate justification for treating him differently from the general public.