Sixth Circuit: Political Retaliation Doesn't Require Actual Affiliation

A divided three-judge panel of the Sixth Circuit ruled this week in Dye v. Office of the Racing Comm'n that government employees' First Amendment political retaliation claims could be based on their perceived political affiliation, and not just their actual political affiliation.  The case deepens a circuit split on the question, with the First and Tenth Circuits ruling that such claims can be based on perceived affiliation and the Third Circuit requiring actual affiliation.

The case arose when employees of the Michigan Office of the Racing Commissioner, the Michigan department that regulates horseracing in the state, claimed that their politically-appointed supervisors retaliated against them for their protected speech and their perceived political affiliation.  (The employees claimed that their superiors, Democrats, thought that they were Republicans.)  The district court granted the defendants' motion for summary judgment, ruling that the plaintiffs failed to allege that the defendants retaliated based on their actual, not just their perceived, political affiliation.

Judges Moore and Merritt agreed that the plaintiffs' claim didn't require them to allege that they were actually Republicans.  They borrowed from Waters v. Churchill--a speech case (not an affiliation case), holding that the Connick v. Myers test for government employee speech should be applied to what the government reasonable thought was said, and not what the trier of fact ultimately determines to have been said--and wrote that "[g]iven the plain meaning of Waters, along with our prior interpretation of its holding," op. at 14, the plaintiffs' affiliation claim should be judged by the plaintiffs' perceived affiliation, and not their actual affiliation.

Judge McKeague disagreed:

The majority's reading of Waters is troubling for two reasons.  First, by allowing a perceived affiliation claim such as the one here to go forward, the Court is essentially providing more First Amendment protection to government employees who have not even engaged in any actual conduct or speech.  . . .

Second, the majority does not explain why Waters, a protected speech case, should apply with equal force to a political affiliation case such as this one.  In my view, even though this is not a political patronage case, any decision on the perceived affiliation issue should certainly take into account the governing principles in the Supreme Court's political patronage dismissal cases . . . (rather than protected speech cases such as Waters).  Those cases deal directly with First Amendment protection of the right to political affiliation, and are thus a window into how the Court views such claims.

Op. at 37.

SDS