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Perception is Enough to Sue for Retaliation


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By Gina Helou

Four Michigan state employees brought First Amendment political-affiliation and protected-speech retaliation claims against their employer, the Michigan Office of the Racing Commission (ORC).  The U. S. Court of Appeals for the Sixth Circuit found in favor of the employees in a landmark case of first-impression for the federal laws of Tennessee, Kentucky, Ohio and Michigan.  Now, the Sixth Circuit, as opposed to the Third Circuit, holds an employee does not actually have to be affiliated with a political candidate or organization, rather an employee’s perceived affiliation and resulting retaliation by their employer is enough to show a violation of the law.


Background
The Racing Commissioner responsible for carrying out alleged retaliation, namely the demotion and eventual termination of several employees, was appointed by the then-Democratic Michigan governor.  The employees bringing the claims against the ORC alleged it was because they were perceived to support and affiliate with the opposing Republican gubernatorial candidate.  Although both the Sixth Circuit and lower trial court held that some of the employees’ allegations did not amount to protected speech and therefore the OCR could not be found to have retaliated against them, one employee in particular succeeded on his retaliation claim before the Sixth Circuit.  

The trial court found in favor of the  OCR because there was no proof that this particular employee was actually affiliated with the Republican party or gubernatorial candidate - the standard applied in past political-affiliation claims.  Instead, the Sixth Circuit looked at other evidence to find retaliation on the part of the OCR.  This employee provided evidence that the appointed Racing Commissioner held a meeting where the employee was chastised and accused of supporting the Republican gubernatorial candidate, and in turn attempting to “derail” the Racing Commissioner’s position with the ORC.  This employee also stated that on occasion, Republican and Democratic conversations would come up in the break room during lunches and he often sided with Republican viewpoints, which would anger the Racing Commissioner and her fellow appointees.  The employee, however, was not actually affiliated with the Republican Party.  Nevertheless, this employee was soon after demoted and later terminated.      At trial, the employee testified that the Racing Commissioner informed him, not long after these conversations took place, that the ORC was doing away with his position as soon as his contract came to a close.  The Sixth Circuit found these actions met the level required to find retaliation on the part of the employer against an employee solely based on that employee’s political affiliations.


Take-Away

The Sixth Circuit now joins its First and Tenth Circuit sister courts in holding that a perceived political affiliation by an employer, and retaliatory conduct against an employee for such a perceived affiliation, is enough to satisfy a violation of retaliation.  This case demonstrates a growing trend among the federal Circuit courts that employees claiming retaliation for their political affiliations have a much more lax standard to meet, as they do not actually have to be affiliated with the political party, but only provide evidence that their employer perceived such an affiliation.

Read the case here.

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