Police District and several of its commissioners (the "defendants" or the "Police District") for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 at the conclusion of all the evidence. While the Court reserves decision on several of the issues raised by the defendants motion, the Court addresses a single legal issue at this juncture, namely whether a claim pursuant to 42 U.S.C. § 1983 for violation of the plaintiff's First Amendment right to free association must satisfy the threshold requirement of touching upon a matter of public concern.
Although the facts underlying this case need not be set forth elaborately here for the Court to conduct its analysis, the relevant facts are as follows. The plaintiff, Paul Gros, (the "plaintiff" or "Gros") is police sergeant for the Port Washington Police District. From the 1980's until the present, he has remained consistently active in the affairs of the Policemen's Benevolent Association ("PBA"). As a result of these activities, Gros contends that he has been continually harassed by the Police District and its Commissioners in violation of his First Amendment Rights to free speech and free association. As part of the their motion for judgment as a matter of law the defendants argue that these First Amendment claims should be dismissed because during the trial Gros has failed to establish that his alleged constitutionally protected activity relates to matters of "public concern" as required under Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983).
In response to the defendants' motion, the plaintiff argues in part, and continues that argument here, that even if the Court were to conclude that the evidence failed to demonstrate that the alleged protected activity was related to a matter of public concern, such a determination would not be fatal to this lawsuit. According to Gros, the First Amendment threshold "public concern" requirement applies only to free speech causes of action and not free association claims. The Court now addresses this issue in detail.
Before commencing its analysis, the Court notes that Gros has also attempted to join claims pursuant to the First Amendment right to freedom of assembly and the right to petition. However, because these claims are not alleged in the Complaint, the Court will not consider them here and will not give those issues to the jury.
As stated above, the narrow issue before the Court is whether a freedom of association claim is subject to the same threshold requirement as a free speech claim, namely that the conduct at issue relate to a matter of public concern. Any analysis of this topic must begin with the Supreme Court's decision in Pickering v. Board of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). In Pickering, the court established that a public employee's free speech claims should be evaluated by balancing the right of the worker to express his or her views against the right of the employer to maintain workplace efficiency as a justification for retaliatory conduct. Id. at 568. This balancing test was further developed in Mt. Healthy City Sch. Dist. Bd. Of Educ. V. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), which provides a three step process enabling the plaintiff to prove his case: (1) the plaintiff must show that his conduct was constitutionally protected; (2) the plaintiff must show that the protected activity was a "substantial" or "motivating" factor for the retaliatory conduct; and (3) if these two criteria are met then the defendants must show that they would have reached the same decision even if the plaintiff had not engaged in protected activity. In Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), the court elaborated on these standards by recognizing that not all speech by a public employee is protected by the First Amendment, stating that:
When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior . . . .