Friday, April 29, 2011

Quran-Burner Gets His Job Back - COTW #38

A New Jersey transit worker, who was terminated after burning the Quran, entered into a settlement agreement with the transit corporation on April 21, 2011 (copy of the settlement agreement here). The worker, Derek Fenton, filed a First Amendment complaint back in November 2010 (copy of the Complaint here). He burned a few pages of the Quran in protest of the proposed construction of an Islamic community center near Ground Zero prompting his termination.

Public employee free speech cases revolve around a simple balancing test: The employee's interest in acting as a citizen to speak on matters of public concern is weighed against the governmental entity's right to act as an employer operating effectively and efficiently. Although that's the foundation of just about every public employee free speech case, it's remarkably difficult to actually apply in practice. There are also a number of twists, turns, and tweaks from decades of jurisprudence.

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.

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