Deposition checklist: Employment lawsuit alleging civil rights (free speech) violations

If your employee right to free speech was violated by your employer, you may have legal recourse under Section 1983 of the Civil Rights Act of 1871.

Section 1983 makes it unlawful for any person acting under the guise of state law to deprive another person of his or her constitutional rights. In the context of an employer-employee relationship, Section 1983 prohibits local governmental agencies, municipalities, and local governmental officials from, among other things, completely restraining the First Amendment free speech rights of employees.

In a Section 1983 action based on First Amendment violations, the lawyers for both the plaintiff-employee and the defendant-employer will want to explore the following issues during depositions:

  • Establish background information.
  • Obtain testimony concerning job duties and responsibilities of the employee’s position using job descriptions or other governmental documents.
  • Examine the circumstances involving the employee’s speech and whether it was connected to his employment or job duties and responsibilities.
  • Was the employee speaking as a public employee or as a private citizen at the time of the claimed protected speech?
  • What is the content, context and form of the claimed protected speech?
  • What is the employee’s motive when engaging in the protected activity?
  • Is the employee a lower-level employee who is not a policymaker and is not responsible for significant interaction with the public?
  • If the employee is a high ranking government official, obtain facts to demonstrate the policymaking defense, i.e., the official actually was responsible for making or recommending policy, the official was involved in preparing budgets, the official was required to work closely with other high ranking government officials, the official was the head of the department and the “spokesperson” for the department.
  • Examine the speech claimed to involve a matter of public concern and demonstrate that it was part of the employee’s job duties to be involved in the public issue and that the speech was connected to work as reflected by job descriptions.
  • Establish that the speech claimed to involve a matter of public concern really involved the private interests of the employee or a private issue between the employee and governmental employer, i.e., a personal job-related grievance, personal issues involving the terms and conditions of the employee only, disagreement with management, etc.
  • Did the employee’s speech impair the effective operation of the government agency office because it interfered with working relationships, compromised the efficient operation of the agency, or was disruptive to the agency?
  • Was the speech contrary to official established government policy such that it impaired the government from maintaining a harmonious work environment or morale within the department?
  • Was the employee’s speech an attempt to gain protection from threatened adverse employment action?
  • Is there a causal connection between the speech and adverse employment action due to temporal proximity or a record of deficient performance prior to the protected speech?
  • Would the adverse employment action have been taken regardless of the protected speech?