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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