Coszalter

Plaintiffs, current and former employees of the City of Salem, Oregon, sued under 42 U.S.C. § 1983 , alleging that defendants violated their First Amendment rights by retaliating against them for publicly disclosing health and safety hazards. The magistrate judge, hearing the case with the permission of the parties, granted defendants’ motion for summary judgment after finding that most of the alleged retaliatory acts were not adverse employment actions because they did not constitute “lossfes] of ... valuable benefit[s] or privilege[s],” and that retaliation was not a substantial or motivating factor behind those few actions that were adverse employment actions.

We reverse and remand. In a First Amendment retaliation case, an adverse employment action is an act that is reasonably likely to deter employees from engaging in constitutionally protected speech. Further, when adverse employment actions are taken between three and eight months after the plaintiffs’ protected speech, a reasonable jury could infer that retaliation is a substantial or motivating factor.

I. Background

Plaintiff Guido Coszalter is a current employee, and plaintiffs Steve Johnson and Gary Jones are former…

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.