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Lawyer fired for subpoenaed testimony can bring retaliation claim

A multi-year battle between prosecutors in suburban Chicago has taken its next step toward resolution. In 2011, the chief state’s attorney for McHenry County was accused by a special prosecutor of misconduct involving allegations that he gave special treatment to friends accused of criminal behavior and that he had his employees perform political work on county time. He was ultimately exonerated after the special prosecutor failed to prove his case in two separate trials.

However, one of the assistant prosecutors who worked for him was subpoenaed to testify against him before a grand jury. When he complied with that subpoena, he was fired, allegedly in retaliation. The assistant prosecutor filed a wrongful termination suit, but it was tossed out by the district court.

The trial judge ruled that the chief prosecutor had done nothing illegal, even if it were true the firing was retaliatory, because the testimony was part of the assistant prosecutor’s ordinary employment duties. In other words, it was a straight employment law case, and the law does not prohibit the firing of employees for making statements that harm the employer.

The U.S. Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana and Wisconsin, has just reinstated the wrongful termination claim. Without ruling on the validity of the claim itself, the appeals court held that the assistant prosecutor has a valid argument under the First Amendment that he was actually fired in retaliation for exercising his free speech rights as a private citizen. And workplace retaliation against government workers who exercise their First Amendment rights as citizens is prohibited.

At least in this case, the court ruled, the grand jury testimony was not provided as part of his official job duties. Instead, it was more like a schoolteacher writing a critical article about the school board. He was merely expressing observations and opinions he had formed during his employment, not actually working on behalf of the state attorney’s office. The testimony would have to have been “pursuant to [his] official duties,” or he was acting as a private citizen.

"[The assistant prosecutor] worked in the criminal justice system, and his speech occurred in the course of judicial proceedings," the court wrote. "Nonetheless, when he spoke out about potential or actual wrongdoing on the part of his supervisors, he too was speaking 'outside the duties of employment.'”

The former assistant state attorney is now free to bring his wrongful termination complaint back to the district court for trial.


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