Thursday, October 21, 2010

Stony Brook doctor has a free speech claim

Dr. Krukenkamp was not afraid to speak his mind while employed by the Stony Brook University Medical Center, a public facility on Long Island. He gave interviews to the newspaper criticizing the Center's pediatric program and discussing the Department of Health's investigation into that program. Unlike most First Amendment retaliation cases, the issue is not whether he spoke out on a matter of public concern and therefore engaged in protected speech. Instead, the issue is whether defendants' retaliation was significant enough to support a lawsuit.

The case is Krukenkamp v. SUNY Stony Brook, a summary order decided on October 6. Laypeople and clients will say they "got screwed" after speaking out. Lawyers and judges call it an "adverse employment action." The former phrase makes sense to most of us, but the legal system prefers the latter, clunky, phrase.

If you speak out as a public employee and get screwed over, you have an "adverse employment action" if management's retaliation would deter any reasonable employee from speaking out again. In other words, if the retaliation would have a chilling effect on future speech. This is a lenient standard for plaintiffs, and the Court of Appeals (Pooler, Hall and Kravitz [D.J.]) reverses summary judgment on that basis.

First, the doctor has a case because defendants placed him on inactive clinical status, preventing him from performing surgery. Second, when he was on call, defendants referred fewer patients to him after he spoke out. Third, the Center took his name off the "Find a Doctor" website shortly after he spoke out, a move that made it more difficult for him to find new patients and work elsewhere. These are not trivial acts of retaliation, the Court of Appeals says. (The court does say that one retaliatory act -- seating him on a small stool next to the garbage during a meeting -- is too trivial to support a damages claim).

Interesting side-note to the case. Generally, if the adverse employment action takes place six months after the free speech, that's too attenuated a causal connection between the speech and the retaliation to support a claim. Courts prefer a tighter connection, i.e., no more than a few months. One way around this is to show that defendants waited for the right moment to retaliate. Here, the Second Circuit says defendants "waited six months for an opportune time to take the most visible adverse acts, when Dr. Krukenkamp was scheduled to go on Title F leave." Authority for this holding is found in Espinal v. Goord, 558 F.3d 119 (2d Cir. 2008), a prisoners' rights case, not an employment case. The Second Circuit extends that case to the employment context.

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