Police Officer’s Retaliation Claim Fails To Persuade Court

Daniel McCarthy is a police officer for Newburyport, Massachusetts. In 2001, a local newspaper launched a series of articles critical of the Police Department. Some departmental members began to believe that McCarthy was the source of information leading to the articles. McCarthy eventually wrote a letter to the newspaper’s editor about the controversy.

In April 2001, McCarthy made an arrest using a key to a private establishment. The Police Chief orally reprimanded McCarthy for violating a Department policy forbidding officers from possessing keys to private establishments without the permission of the Police Chief. McCarthy then received repeated requests for a written report on the incident from his sergeant and the Police Chief, but failed to comply with the requests.

The Chief suspended McCarthy for three days for insubordination. When the Chief forced him to relinquish his gun and badge for the duration of his suspension, McCarthy allegedly tossed his loaded gun onto the Chief’s desk. McCarthy was then given an additional 20-day suspension.

In February 2002, the District Attorney’s office filed a criminal assault complaint against McCarthy for tossing the gun onto the Chief’s desk. The criminal charges were eventually dismissed. In September 2002, the City’s mayor passed over McCarthy for promotion to sergeant, even though McCarthy was the top-ranked candidate on the Civil Service list. The Mayor cited McCarthy’s prior disciplinary actions and the then-pending criminal charge. McCarthy then filed a 31-count complaint against the City, alleging that the failure to promote him was retaliation for his exercise of First Amendment rights in writing the letter to the editor.

A federal Court of Appeals upheld the dismissal of McCarthy’s lawsuit. The key, the Court found, was that McCarthy failed to show that the Mayor’s decision to bypass him for promotion was in any way motivated by the letter to the editor.

As described by the Court, “a government employee alleging an adverse employment action in response to the exercise of First Amendment rights must introduce sufficient evidence to permit a finding that his participation in this protected activity was a substantial or motivating factor behind the adverse employment action. There is no evidence to support McCarthy’s conclusory assertion that the actions taken against him were motivated by his letter to the editor. McCarthy’s letter to the editor actually praised the Police Chief, and McCarthy’s testimony was the Chief never took or threatened any action against him based on his association with the newspaper reporter. The Chief had ample non-discriminatory reasons to discipline McCarthy, as did the Mayor for refusing to promote McCarthy. No reasonable juror could find that McCarthy’s protected speech was a motivating factor for any alleged adverse employment action.”

McCarthy v. City of Newburyport, 2007 WL 3171357 (1st Cir. 2007).

This article appears in the December 2007 issue