In first amendment retaliation claims, after plaintiff states a prima facia case, defendant may adduce evidence of a legitimate, non-discriminatory reason for termination.

The plaintiff, a state trooper, pulled over a car for speeding. The driver of the car was the wife of a PSP Lieutenant, Sheow Lt. Barilar. Jennifer Barilar asked if it would make a difference in the plaintiff's decision to issue a citation if her husband were a state trooper. The plaintiff said no and wrote up a ticket. The plaintiff intentionally presented a sloppy case, even neglecting to ask the court to take judicial notice of the radar gun and the identity of the driver. District Justice Ford, suspecting the case was being fixed, was furious. He stormed off the bench, then returned a few minutes later and dismissed the citation. Ultimately, the plaintiff received a two-day suspension for his actions and testified against the driver's husband in a separate trial for intimidation of a witness. On April 1, 2001, the plaintiff allegedly entered a UniMart in an intoxicated state and asked a female employee to show him her breasts. One month later he allegedly propositioned a woman for sex in a DuBois UniMart, threatened to arrest her for prostitution when she refused, and reported her for being in possession of drugs. For this offense, the plaintiff was terminated from his position with the state police. The plaintiff brought suit, alleging he was terminated for having spoken to the District Attorney about the first incident and providing testimony against the woman's husband, a Lieutenant. In granting the defendant's Motion for Summary Judgment, the court held that while the plaintiff had stated a prima facia case of retaliation, the second incident provided enough evidence in support of his termination that no reasonable juror could find that the first incident was the Actual motivation for the termination.

Case Law Alert - 1st Qtr 2010