The Second Circuit recently broadened the 1st amendment protection of employees and narrowed the application of Garcetti v. Ceballos, 547 U.S. 410 (2006).
In Jackler v. Byrne, _ F.3d _ (2d Cir. 2010), a police officer claimed that he was fired for refusing to retract a false statement in an official report about another officer’s misconduct. The defense, relying on Garcetti, argued that this conduct was done pursuant to his official duty. Garcetti has been used by employers ever since its release to severely limit the application of the 1st amendment in the workplace. Essentially, employers had claimed that almost any speech at work was pursuant to the employee’s official duties and therefore not protected.
The Second Circuit refused to stretch Garcetti this far:
Although defendants argue that Jackler’s refusals were part of his job and that Garcetti requires affirmance because otherwise any employee who simply files a truthful report could claim that his First Amendment rights were implicated because he did not file a false one, we reject that contention because it ignores the context of Jackler’s refusals. Jackler’s allegation–which must be accepted as true in the context of judgment on the pleadings–was that Rickard and Freeman, as directed by Chief Byrne, repeatedly attempted to force him to withdraw the truthful report he had filed and to submit one that was false. In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report. In sum, it is clear that the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that he believes is false, and to refuse to engage in unlawful conduct by filing a false report with the police. We conclude that Jackler’s refusal to comply with orders to retract his truthful Report and file one that was false has a clear civilian analogue and that Jackler was not simply doing his job in refusing to obey those orders from the department’s top administrative officers and the chief of police.
This is great news for employees and their lawyers. who feared that Garcetti had all but removed any protection the 1st amendment gave employees in the workplace.
Contrary to my fellow blogger’s opinion, this decision is not a” yawner.” In Lyon, our Appellate Court had ruled that the State of Connecticut could not be sued in court under the Connecticut Fair Employment Practices Act (our anti-discrimination law) unless the Claims Commissioner gave permission. This ruling ignored the plain language of the statute and ignored decades of practice by employment attorneys and judges.
The effect of Lyon was that employees of the State could not bring their discrimination claims to court and were forced to accept as their sole remedy a hearing at the CHRO. This forum deprived them of a right to a jury trial and the right to obtain reimbursement for their attorneys’ fees, among other limitations.
The Supreme Court got it right in reversing this terrible decision. Almost every practicioner I know predicted that Lyon would be reversed. Even the Attorney General’s office agreed that the Appellate Court’s reliance on the doctrine of sovereign immunity was incorrect.
Far from being a boring case, this ruling restores the important right of a jury trial in Superior Court to employees of the State of Connecticut.
I have been waiting to blog about this case (Ricci v. DeStefano), not to be dramatic, but because I wanted to understand the complex issues that it presents. My patience has been rewarded, and so have you. George Will (Connecticut ties include being a Trinity College graduate) and Attorney David Rosen (a New Haven lawyer who brought race bias cases since the 70s) have provided the two sides of this coin far better than I ever could have.
Mr. Will writes:
“Racial spoils systems must involve incessant mischief because they require a rhetorical fog of euphemisms and blurry categories (e.g., “race-conscious” measures that somehow do not constitute racial discrimination) to obscure stark facts, such as: If Ricci and half a dozen others who earned high scores were not white, the city would have proceeded with the promotions.”
Attorney Rosen writes, in the Hartford Courant:
“It should recognize that it is not discrimination for New Haven to try to comply with the same civil rights law that led to more equal employment in the first place. The federal law against employment discrimination was intended to encourage employers like New Haven to act voluntarily to end group disadvantages. It was not intended to be a trap, damning employers when they act to head off possibly unlawful exclusion of minorities as well as when they don’t.”
Of course, the devil is always in the details. I tend to think that Attorney Rosen has it right. We are not yet in that “promised land” that Dr. King dreamt about where we can simply move forward without thinking about our racist past. I do not believe that New Haven refused to promote Mr. Ricci because he is white. I believe that it simply concluded that the test must have been biased. If true, this is simply not discrimination. Lets hope the Supreme Court gets it right!
In what may be one of the largest employment law verdicts in the State of Connecticut, a physician, Dr. Berry Schumann won a huge verdict against Dianon Systems, Inc. for terminating him in violation of Connecticut General Statutes Section 31-51q and in violation of public policy. The plaintiff was represented by Attorney Stephen J. Fitzgerald of Garrison, Levin-Epstein, Chimes & Richardson, P.C. The defendant was represented by Attorney Daniel Schwartz of Pullman & Comley. Dr. Schumann claimed that he was terminated in retaliation for his internal complaints about a new test which was unverified, overly expensive and unnecessary. The Honorable Deborah Frankel presided. The verdict was for $4.2 million but is expected to exceed $8,000,000 when attorneys fees, punitive damages and interest on an offer of judgment are added. Congratulations to Attorney Fitzgerald and Dr. Schumann! Good luck with the post trial motions and what will likely be an appeal.