New Jersey Transit Agrees to Reinstate Worker Fired for Protest Activities

April 18, 2011

The American Civil Liberties Union of New Jersey today announced that it has reached a successful settlement in the case of Derek Fenton, the New Jersey Transit worker who was fired for burning three pages of a Koran during a rally held in protest of a proposed Islamic community center in Lower Manhattan last year.

As part of the settlement (494k PDF), New Jersey Transit has agreed to give Fenton his job back and provide him with back pay. In addition, New Jersey Transit will pay $25,000 in damages and $25,000 in attorneys’ fees.

“I am pleased that the matter is now successfully settled,” Fenton said. “Our government cannot pick and choose whose free speech rights are protected, based on whether or not they approve of the content of our statements or actions. This is the very essence of the First Amendment.”

Fenton will not make any additional public comments on the matter.

Fenton, an 11-year New Jersey Transit employee, burned three pages of the Koran during a September 11, 2010 rally. It was his day off and he did not identify himself as a New Jersey Transit employee. A newspaper photographer captured and published the photo of Fenton burning the Koran. When his employers saw the photo, he was terminated on September 13, 2010.

The ACLU of New Jersey filed suit on his behalf, explaining that New Jersey Transit’s actions were illegal, because the law prohibits public employers from firing workers for engaging in constitutionally protected speech on matters of public concern in their personal capacities. Gov. Chris Christie and four members from his office were named in discovery as persons with information relevant to the decision.

“The First Amendment protects Fenton’s right to protest just as it protects the freedom to build a religious center at the location of one’s choosing. And it protects his right not to get fired by a public employer for exercising that right,” said Frank Corrado of Barry, Corrado, Grassi & Gibson, who, along with Rubin Sinins of Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, represented Fenton on behalf of the ACLU-NJ.

“The ACLU understands that Fenton’s speech falls into that category of speech that is offensive to many. In fact, the ACLU itself has denounced anti-Muslim sentiment expressed during the controversy over the community center,” said ACLU-NJ Executive Director Deborah Jacobs. “But while we may disagree with the sentiments expressed by some protestors, we stand up for the constitutional right to express all viewpoints.

The ACLU-NJ filed the federal lawsuit on November 5, 2010. The court was informed of the settlement on April 11, 2011. It signed an order dismissing the case on April 13, 2011, subject to the settlement being carried out within 60 days. The settlement itself was finalized on April 21, 2011.

“This is an important result for free speech rights of public employees. Public employees should not have to worry about their livelihoods being threatened for exercising their constitutional rights,” said Sinins, who also served as the ACLU-NJ’s cooperating attorney in the case. “No matter what their personal beliefs are, if those beliefs have no bearing on their job, they should have the right to express those beliefs on their own time.”

Category: Free Speech

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