Coworker Bullying Can Violate First Amendment

Roger Fairley and Richard Gackowski worked as guards at the Cook County Jail in Chicago. After they alleged their peers threatened to kill them, they quit and sued the other guards, complaint handler, the Sheriff, and the County.

Fairley and Gackowski contended that guards at the jail regularly beat prisoners without justification. When Gackowski complained about a particular incident involving the use of force, the other guards responded by taunting Gackowski, calling him a “snitch” who “had no heart.” When Fairley complained about what he perceived as a beating administered by guards, he was labeled by coworkers as an “inmate lover.”

Inmates in the jail eventually filed a lawsuit. When Fairley and Gackowski indicated their intention to testify truthfully in the inmates’ lawsuit, the retaliation from other guards accelerated. Two guards forcefully dry-humped Fairley and Gackowski by grabbing them from behind and simulating anal intercourse. A guard posted on the jail’s bulletin boards pornographic cartoons featuring Gackowski. Supervisors repeatedly assigned the two to special incarceration units without adequate supplies, and other guards refused to let them use the restroom.

Fairley and Gackowski eventually brought a lawsuit under Section 1983 of the Civil Rights Act, alleging that the defendants violated their speech rights by assaulting and threatening them for reporting abuse to jail supervisors and their willingness to testify truthfully. A federal Appeals Court allowed portions of the lawsuit to proceed.

The County argued that Fairley and Gackowski’s lawsuit should be dismissed because, under the tenets of Garcetti v. Ceballos, 547 U.S. 410 (2006), all of Fairley’s and Gackowski’s statements and actions were part of their job, and thus were unprotected by the First Amendment. Focusing on the response to Gackowski’s and Fairley’s intention to testify, the Appeals Court disagreed with the County’s argument:

“This claim falls outside Garcetti. The jail likely requires guards to testify on its behalf and pays them for time in court. Testifying against the jail might not be part of the job, but that doesn’t matter. Even if offering (adverse) testimony is a job duty, Courts rather than employers are entitled to supervise the process. A government cannot tell its employees what to say in court, nor can it prevent them from testifying against it.

“The County’s only contention is that no one retaliated against Gackowski and Fairley for testifying, because the insults, assaults and threats all preceded their deposition in the lawsuit. This misapprehends the nature of the claim. The Constitution prevents governmental actors from forbidding, or penalizing, speech that is protected under the First Amendment. Penalties that follow speech are forbidden. This includes, but certainly is not limited to, reactions to what already has been said. But threats of penalties are also forbidden. That’s why it can be misleading to speak of retaliation as the basis of the suit. The word implies that threats don’t matter.

“Threatening penalties for future speech goes by the name ‘prior restraint’ and a prior restraint is the quintessential First Amendment violation. The word ‘retaliation’ has the potential, realized here, to divert attention from the rule that both threats designed to deter future speech and penalties for past speech are forbidden.”

The Court outlined what Gackowski and Fairley would have to show to be successful at trial: “Plaintiffs must show that their potential testimony, not their internal complaints, caused the assaults and threats. This means but-for causation. In light of a recent Supreme Court decision, demonstrating but-for causation is part of a plaintiff’s burden in all suits under federal law. The record has evidence from which a reasonable jury could find causation; no more is necessary at this stage.

“The second requirement is proof of damages. The largest item will be lost income, if plaintiffs can establish that the threats caused them to quit. Lesser threats, defamation, and battery (the dry humping) also can lead to damages, if these are the sort of harms that would cause a reasonable person to keep quiet. But because Garcetti covers the intra-jail complaints, actions that occurred before the altercation with the inmates, such as some taunting, are not an appropriate source of damages.”

Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009).

This article appears in the January 2010 issue