Employment – Retaliation – First Amendment

Where a First Amendment retaliation suit has been filed by plaintiff employees of the Massachusetts Department of Correction who were disciplined for releasing to the media a video of a violent attack by three inmates, a motion to dismiss the complaint should be denied because the plaintiffs have pleaded facts sufficient to survive the balancing test established in Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

“All parties are employed by DOC. Plaintiffs are DOC corrections officers and members of the Executive Board (the ‘Board’) of the Massachusetts Correction Officers Federated Union (‘MCOFU’), which is the collective bargaining representative of DOC employees in statewide bargaining unit 4. …

“Defendants are high-ranking DOC officials. …

“On the evening of September 18, 2024, three inmates at Souza-Baranowski Correctional Center (‘Souza-Baranowski’), a maximum-security DOC facility, violently attacked a corrections officer. … One inmate stabbed the officer multiple times with a sharp object. … Other officers responded and took the inmates into custody. … In total, five corrections officers were injured. … The attack was captured on DOC’s closed-circuit video camera system. …

“The [Executive] Board [of the Massachusetts Correction Officers Federated Union] received a copy of video footage of the attack captured on DOC’s closed-circuit camera system (the ‘Video’) and voted unanimously to release the footage. …

“On June 24, 2025, DOC suspended Plaintiffs for five days for releasing the Video to the media. … Before imposing discipline on Plaintiffs, Defendants never asserted that release of the Video impeded any investigation into the attack, impeded DOC operations, negatively impacted DOC’s ability to maintain discipline or relationships in the workplace, impaired Plaintiffs’ abilities to perform their job duties, impaired DOC’s workplace harmony or was inherently disruptive. …

“Defendants offer four arguments that Plaintiffs fail to state a claim for which relief can be granted. First, Defendants contend that Plaintiffs were acting as public employees rather than private citizens in releasing the Video to the media. … Second, Defendants argue that Plaintiffs were not speaking on a matter of public concern. … Third, Defendants contend that they had an adequate justification for disciplining Plaintiffs for their speech. … Finally, Defendants maintain that even if Plaintiffs plausibly allege a First Amendment retaliation claim, the complaint must be dismissed because Defendants are entitled to qualified immunity. …

“Based on the factual allegations, and drawing all reasonable inferences in Plaintiffs’ favor, the complaint alleges sufficient facts to make it plausible that Plaintiffs spoke on a matter of public concern. …

“The second factor in the First Amendment retaliation inquiry, often referred to as the Pickering balancing test, asks whether ‘the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.’ …

“… Particularly in light of the undeveloped record and argument regarding Defendants’ interests, including the scope of DOC restrictions applicable to the Video, … the Court cannot say that Plaintiffs have failed to plead facts sufficient to allow the Court to infer that their claim could survive the Pickering balancing test. …

“For similar reasons, the Court rejects Defendants’ argument that the complaint should be dismissed on qualified immunity grounds. …”

Martin, et al. v. Jenkins, et al. (Lawyers Weekly No. 02-347-26) (23 pages) (Casper, C.J.) (Docket No. 25-cv-13254-DJC) (July 10, 2026).

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