Connecticut Employment Law Blog Insight on Labor & Employment Developments for Connecticut Businesses

Conn. Supreme Court Rejects $10M Verdict; Insubordination is Not Protected Speech

Posted in Featured, Highlight, Litigation, Wage & Hour

Free Speech in Workplace Has Limits

In one of the most significant employment law cases decided by the Connecticut Supreme Court in recent years, the Court unanimously ruled earlier this month that an employee’s free speech rights in the private workplace do not extend to speech pursuant to his job duties.  Those rights do not cover insubordinate behavior either. In doing so, the Court reversed the jury verdict to the employee of approximately $10 million.

I typically don’t write about cases that I’ve handled, but given the importance of this case, the client, LabCorp, has approved an exception. My public thanks to them for allowing me to share this important case with you. (I first alerted you to the case in this post.)

The case, Schumann v. Dianon, can be downloaded here.  You can read the basic facts there but the case concerned a laboratory doctor who refused to use certain diagnostic codes for lab tests that were being performed and claimed that it would affect patient safety.   He brought a claim under Conn. Gen. Stat. 31-51q which purports to apply First Amendment protection to Connecticut employers. (You can view additional articles about the case here, here and here.)

A few years ago, the U.S. Supreme Court ruled, in Garcetti v. Ceballos, that when public employees make statements pursuant to their official duties, such speech is not protected by the First Amendment. Because the First Amendment typically applies to public employers, the issue in the Schumann case was whether the Garcetti rule applied to actions brought against private employers in Connecticut. A state statute, Conn. Gen. Stat. 31-51q and prior caselaw has applied First Amendment protections to both public and private employers.

The Court in Schumann, in a 7-0 decision, concluded that Garcetti applied to private employers and that the Superior Court erred in not applying that caselaw. In doing so, the Court reversed the jury verdict and remanded the case to the Superior Court to issue a judgment for the employer on the claim.  Dianon argued that not applying Garcetti could lead to absurd results. As summarized by the Court:

The defendant contends that precluding the application of Garcetti to private employers in an action brought pursuant to § 31-51q would render the statute “an absurdity” as applied to the health care industry because “[v]irtually every workplace dispute involving a health care worker would become a free speech case . . . with every employee serving as a roving ombudsman free to overrule her employer,” thus creating a “lose/lose situation, no matter what the company does [wherein] someone will be unhappy with the result and could claim a free speech right to refuse to accept the employer’s decision.”

The Court agreed and found that lower court decisions to the contrary were incorrect.

We disagree with those cases holding Garcetti inapplicable in the private sector because of their incongruous effect of giving private sector employees greater workplace free speech rights than those afforded to their public sector counterparts—a result plainly not envisioned in the Supreme Court’s decision, which recognized that ‘[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.’

The court added, “Applying Garcetti to federal constitutional claims brought under § 31-51q keeps courts from the constitutionally untenable task of, in essence, having to choose sides in a work-related viewpoint dispute between two private actors. Thus, we conclude that the rule in Garcetti v. Ceballos, … applies to claims under § 31-51q grounded in the first amendment that are brought against private employers, and must be considered as a threshold matter prior to undertaking the Pickering/Connick balancing test articulated in DiMartino v. Richens….”

In applying the facts of the case to this rule, the Court agreed with the employer that the speech proffered by the employee was not protected. The speech was “part and parcel of his concerns about his ability to properly execute his duties.” 

The court declined to address whether the state constitution afforded the employee any additional protections because even under the “pre-Garcetti standards,” his speech would not have been protected.

“Applying these principles to the facts of the present case, it is readily apparent that the plaintiff’s speech in its entirety was extraordinarily disruptive to his employment with the defendant and, therefore, not constitutionally protected under the Pickering balancing test— regardless of whether Garcetti applies. First, all of the speech at issue took place in the work environment, rather than on the plaintiff’s own time. Second, the speech greatly interfered with the plaintiff’s job performance, as he acknowledges that, although he had been directed to sign out urine cases using the new diagnostic language, he refused to do so because of his concerns regarding the safety and reliability of the new test, performing only prostate biopsy tests and those few urine tests that could be done without the new language.”

Quite simply, the court said, it was insubordination. “[B]ecause the plaintiff’s speech in opposition to the defendant’s new diagnostic codes was accompanied by his refusal to use those codes, it was insubordinate in nature, removing it from the ambit of constitutional protection.”

There were two concurrences in this case. Justice Palmer wrote a concurrence noting that he would have considered whether the state constitution protected the speech, but generally agreed with the result.

Justice Zarella wrote a notable concurrence that may serve to be the basis of future arguments by employers. He suggested that he would overturn prior caselaw and conclude that Conn. Gen. Stat. 31-51q was inapplicable to any speech made by a private sector employee in a private workplace.  It certainly seems an invitation to employers to raise the issue in the future, though notably, no other justice joined him in that concurrence.

On a personal note, kudos to associate Cara Ceraso and all the people at my firm, Pullman & Comley, LLC, for their assistance in achieving this result for the client. An additional public thanks to my co-counsel at Jones Day, Greg Castinias and Lee DeJulius for their extraordinary work as well.