Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

During the holiday period, the Second Circuit issued a long (and I do mean LONG -- 77 pages!) decision regarding whether Connecticut corrections officers could belong to the Outlaws Motorcycle Club. 

The Second Court upheld the dismissal of First Amendment and other constitutional claims brought by several fired corrections officers who had challenged their firings. They contended, in Piscottano v. Murphy (download here) that their participation in the Club, which the government regards as a criminal enterprise, violated their rights to Freedom of Association.  The Court rejected that claim.  (The Hartford Courant's report can also be read here.)

Wait a Second Blog, has the initial details:

As the Court of Appeals likes to do, it uses this case to flesh out the state of the law on the right of association under the First Amendment, outlining how the Supreme Court has made it easier over the years to allow the government to restrict certain First Amendment freedoms among public employees.

The Court of Appeals first reviewed the Supreme Court's latest pronouncements on the regulation of a public employee's outside activities. Citing San Diego v. Roe, 543 U.S. 77 (2004), the Court stated that the government has leeway to discipline an employee whose outside speech or associations are detrimental to that operation. It is true, the Second Circuit held, that the plaintiffs in this case engaged in a "protected" association with the Outlaws in that their involvement with the organization raised a matter of "public concern" under the First Amendment. This is because, while the Outlaws Motorcycle Club does not as an organization engage in "public concern" speech, that organization's questionable existence itself would raise concern among the public.

But while "public concern" speech is protected by the First Amendment, the analysis does not end there. The government can still win the case by showing that this associational relationship can hurt governmental operations. Since the plaintiffs are corrections officers associating with an organization with a mission at odds with law enforcement, they can be fired for that association, overriding the First Amendment claim. Moreover, since membership in a large and non-selective social club like the Outlaws does not represent the kind of intimate (family) relationship for which you cannot be punished at work, the right of "intimate association" under the First Amendment does not help the corrections officers, either.

There are a few other notable aspects to the case to point out briefly.

• The case was argued in February 2006 -- thus, the case took nearly two years to decide. The next time you have an appeal before the Second Circuit, don't presume the wheels of justice will move quickly.
  
• It appears to judges focused to some extent on the corrections officers' denials of their knowledge of the criminal activities of the Outlaws group and their seeming denials of actually participating in the group:

In sum, on this record, we think it plain that Piscottano,Kight, and Vincenzo, by, inter alia, repeatedly consorting with the Outlaws and wearing Outlaws colors and apparel in public--even at such times as they were not members of the Outlaws--engaged in expressive activity approving of the nature of the Connecticut chapter of the Outlaws, of the national Outlaws organization, and of other Outlaws chapters.

The fact that law enforcement agencies believe the Outlaws and many of its chapters engage in criminal activity is sufficient in itself to make the nature of those entities a matter of public concern.

• An interesting question is whether courts would come to the same result for a private employer. After all, Conn. Gen. Stat. Sec. 31-51q purports to apply the reach of some constitutional claims to private employers.   It is plain from reading the decision that the particular position held by the corrections officers (semi- law enforcement) was a factor in the Court's decision.  Would the Court reach the same result for a newspaper delivery person?  That's simply an open question at the point.  But at least under Sec. 31-51q, the employer would have an additional defense that such actions may "substantially interfere" with the employee's performance or the working relationship.

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A U.S. District Court decision today by Judge Janet Arteron provides a bit of clarity on some first amendment retaliation issues that may be helpful to some employers. The case, Milardo v. City of Middletown (Dec. 20, 2007), is by no means groundbreaking; the facts of the case allow the court to sidestep some issues by simply finding a lack of evidence to support some of the claims.

Nevertheless, the case addresses, for example, the common argument of retaliation claims that mere temporal proximity should be sufficient to state a claim for retaliation.  (Click here for prior posts on the issue of temporal proximity for retaliation.)   The court here finds that the passage of nearly a year between an alleged complaint and the ultimate termination is insufficient to support a claim of retaliation.

One other interesting aspect is whether the filing of a Freedom of Information Act (FOIA) request is sufficient to form the basis of a First Amendment claim.  The court says that the answer generally is no and that Plaintiff did not show that his case falls within the very narrow exception to that general rule. 

As a general matter, courts have held that there is no First Amendment right to access government information, even by way of the FOIA. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 8–9 (1978) (plurality opinion) (“Neither the First Amendment nor theFourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”); id. at 16 (Stewart, J., concurring) (“The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government.”); McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“As a general rule, citizens have no first amendment right of access to traditionally nonpublic government information. A litigant seeking release of government information under FOIA, therefore, relies upon a statutory entitlement — as narrowed by statutory exceptions — and not upon his constitutional right to free expression.”)

To the extent there is a limited constitutional right of access to some types of information held by the government, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986)
(recognizing a First Amendment right to access certain aspects of criminal proceedings), Plaintiff has failed to show how what he requested through the FOIA falls within that exception. See Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 934–36 (D.C. Cir. 2003) (summarizing the limited ways in which the Constitution guarantees access to criminal trials).

Milardo argues in his brief only that, although “the mere filing of a FOIA request is not necessarily ipso facto the exercise of a protected First Amendment right, the nature of the request in this case does merit First Amendment protection.” (Pl.’s Opp’n at 6.) In his request, Plaintiff sought information which he believed would reveal evidence of improper conduct by city employees, but he has not shown how this is the type of exceptional request that merits constitutional protection.

Moreover, the undisputed evidence shows that the city produced the documents he sought and that his request played no part in the city’s ultimate decision to terminate his employment ten months later. Thus, no reasonable fact-finder could conclude that Plaintiff was subjected to an adverse employment decision in retaliation for making any constitutionally-protected request.

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A few days ago, I reported on the summary judgment decision of Tucker v. Journal Register East.  While the case is notable for its discussion of the whether an employee who expresses reluctance to testify has actually "participated" in a protected activity for Title VII purposes, the case also has a discussion of a claim arising from her First Amendment rights.

Now, your first question may be -- "I thought the First Amendment only applied to government employees.  Isn't she at a private employer?"  Well, in Connecticut, employees at private employer do have First Amendment rights; those rights happen to be dictated by a state statute, Conn. Gen. Stat. Sec. 31-51q.  That statute states:

Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution ..., provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages .....

There is, however, a limitation on the employee's rights.  Section 31-51q “applies only to expressions regarding public concerns that are motivated by an employee's desire to speak out as a citizen.”  Thus, if the employee is speaking on purely personal concerns, then the speech is not protected.

In the Tucker case, the court had to decide whether the employee, in relaying her reservations about testifying on the behalf of the company was speaking “as a citizen upon matters of public
concern” or “instead as an employee upon matters only of personal interest.”

The court, in denying the employer's motion for summary judgment, held that the employee's speech may constitute a matter of public concern, and therefore she may be entitled to relief under C.G.S. 31-51q.

A jury could reasonably find that Tucker’s speech “was part of an overall effort . . . to correct allegedly unlawful practices or bring them to public attention.” Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d. Cir. 1993) (internal quotation marks omitted). Tucker’s speech relating to her impending testimony did not concern the terms or conditions of her own employment, but rather the change in her views regarding the merits of [another employee's] sexual harassment complaint before the CHRO. She was not speaking strictly from her role as an employee; a jury could believe that she was speaking as witness who was concerned about her testimony at an upcoming proceeding. ...[A] jury could believe that Tucker was not furthering only her private interest, but instead the interest of a fellow co-worker, whose allegations Tucker felt were more trustworthy. Tucker’s speech was not in response to any personal aggrievement.

Whether the employee will prevail at trial is, as always, an open question. But for employers, this case is another indication of the difficulty that exists in getting summary judgment on employment claims. 

Also noteworthy here is the fact that the employee's reluctance to testify (if that is, in fact, what happened) formed the basis of not one, but two separate employment claims -- even though that employee was not the victim of sexual harassment herself.

For employers dealing with non-testifying co-workers, this case illustrates the perils of taking any action against them. Seeking legal advice when disciplining or discharging such an employee may avoid the potential pitfalls that may arise.

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It has been over a year since the Supreme Court's decision in Garcetti v. Ceballos, which held that where a public employee speaks as an employee and not a public citizen, such speech is not protected under the First Amendment. 

Courts applying the decision have tried to impart some parameters to the Court's decision such as whether an employee's job description is "controlling" as to what those job duties actually are.    (One issue not yet resolved-- and the subject of a future blog post -- is the question of whether Garcetti applies to employees at private companies.  A split in authority has been developing in the state courts on that issue, although the majority appears to answer that question "yes".) 

One interesting case came down from the U.S. District Court in Connecticut last month.  In O'Dea v. Shea, et al, the court granted a state agency's motion for summary judgment where the employee claimed that she was given a poor performance review in violation of her First Amendment rights.  

But the reasoning behind the decision shows that Connecticut courts have begun to apply the Supreme Court's ruling in Garcetti v. Ceballos. The background of the case is straightforward:

• The Plaintiff became Director of Acute Nursing at Blue Hills Hospital in central Connecticut.
• In the spring of 2004, her supervisor purchased refurbished used furniture for the unit. 
• According to the plaintiff, she complained that bringing in used furniture into the facility would lead to more insect infestations. 
• In May 2004, the plaintiff received a "satisfactory" rating on her performance review and sued on that basis. 

Rather than address the issue of an adverse job action (which would seem to be the "easier" of the questions), the court ruled that Garcetti foreclosed her case.  "An Employee may still be performing his job when he speaks, even if that expression is not demanded of him."  The court emphasized, thus, that courts should not look at formal job descriptions but rather to the "practical" considerations of an employee's job.  Thus, the court -- in essence -- found that the job description was not dispositive of the issue.

Because the court concluded that the employee raised her concerns in her "professional capacity" as an employee, and not as a private citizen, her speech was not protected by the First Amendment.

The case reinforces the notion that First Amendment claims (including those brought under comparable state laws) by employees face an uphill battle.  For the time being, not even narrowly drafted job position descriptions appear to be able to defeat a defense that the employee's comments were in the course of his/her duties.

For employers that are considering revising an employee's job duties or position description, it makes sense to include a reference to reporting safety or other concerns (if that is a legitimate part of the job). Although the employer may believe that this is implicit in particular jobs, it is helpful to have this established at a neutral point in time in writing -- rather than as a company policy.

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