stating that Nunez does not create “an exclusive, category-based limitation on the kind of retaliatory action that is actionable under the First Amendment,” nor does it mean that “the government is allowed to take severe retalia tory actions ... because those actions do not result in the loss of a valuable governmental benefit or privilege”
How later courts described this case
- stating that Nunez does not create “an exclusive, category-based limitation on the kind of retaliatory action that is actionable under the First Amendment,” nor does it mean that “the government is allowed to take severe retalia tory actions ... because those actions do not result in the loss of a valuable governmental benefit or privilege”
- finding that plaintiff may satisfy the “substantial factor” standard in numerous ways, 7 either by timing or through statements by the employer showing its disapproval of the 8 protected activity or by showing that the employer’s proffered reasons for the adverse 9 action were pretextual
- finding that plaintiff may satisfy the “substantial factor” standard in numerous ways, either by timing or. through statements by the employer showing its disapproval of the protected activity or by showing that the employer’s proffered reasons for the adverse action were pretextual
- holding that it is error to consider the length of time in isolation and that three to eight month interval "can support an inference of retaliation” when “surrounding circumstances,” such as inconsistent application of a policy, suggest that the employer had a retaliatory motive
Written by the judges who cited it.
The opinion
FERGUSON, Circuit Judge,
concurring:
I concur in Judge Fletcher’s opinion. I write separately to stress that government officials cannot discriminate in any manner, no matter how trivial the First Amendment expression may seem to be.
In Rutan v. Republican Party of Illinois, 497 U.S. 62 , 76-77 n. 8, 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990), the Supreme Court stated, “the First Amendment ... protects state employees not only from patronage dismissals but also from ‘even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights.’ ” (quoting the lower court opinion at 868 F.2d 943 , 954 n. 4 (7th Cir.1989)). In other words, no government official can trivialize the First Amendment.