In the New Jersey Transit case, the employee was on his own time in civilian clothes in New York protesting a matter of great public concern (if the amount of media coverage is any indication). The NJ Transit Corp. claimed Fenton had violated its "Code of Ethics." Without more information, I would have to conclude that this was a pretty strong First Amendment claim. And based on the settlement agreement, the parties agreed. Fenton got his job back, back pay, back benefits, $25,000 in pain and suffering, and $25,000 in attorney's fees.
One final note, which I found particularly amusing: "Mr. Fenton will not . . . be required to undergo any 'sensitivity training.'"
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.