Monday, January 10, 2011

Free speech case dies a Mt. Healthy death

I guess you can say the government gets the benefit of the doubt in First Amendment retaliation cases brought by public employees. Even if the evidence shows that the plaintiff was retaliated against for speaking out, the government can sometimes win the case anyway.

The case is Anemone v. Metropolitan Transportation Authority, decided on January 4. It took the Court of Appeals (Livingston, Miner and Trager [D.J.]) a year-and-a-half to write this opinion, and it shows: the statement of facts alone is over 20 pages. But the moral of the story is short: it's hard to overcome Mt. Healthy.

Mt. Healthy is the legal doctrine adopted by the Supreme Court in 1977 that says that even if the employer retaliated against the plaintiff, the employer prevails if it can show that it would have fired the plaintiff anyway, even in the absence of the speech. You can imagine the litigation bloodbaths that Mt. Healthy creates, as management puts together a case that tears apart the plaintiff as a backup strategy in case the evidence suggests there was a retaliatory motive.

Anemone was Director of Security at the MTA. He believed that a high-ranking official at the agency was corrupt. Anemone and one of his aggressive deputies, Casale, took it upon themselves to continue exposing this alleged misconduct even after Anemone was told to stop doing so in order to allow others at the agency to carry the ball. After Anemone and Casale provided information to the New York Times, the district attorney's office and state Assembly committee, Anemone was fired. As it happened, according to an internal MTA investigation, Anemone and Casale fabricated information about the alleged corruption.

The Court of Appeals actually has two holdings: first, Anemone's speech is not protected because it was pursuant to his official job duties. At least as to the contacts with the DA's office, Anemone was responsible for security at MTA, so this speech was among his responsibilities, killing his case under Garcetti v. Ceballos, 547 U.S. 410 (2006). He tries to get around this by saying that he went to the DA outside the chain-of-command when superiors told him to stop his advocacy, but the Court of Appeals instead sees this as insubordination, not citizen speech. This may sound like a simple holding, but I believe it's the first time the Second Circuit has said this post-Garcetti.

As for Anemone's contacts with the Times and the state Assembly committee, the Court of Appeals does not decide whether that speech is protected. The Court instead says that even if the speech was First Amendment activity, MTA must win the case on summary judgment because plaintiff's insubordination would have resulted in his termination anyway. There was also longstanding tension and conflicts between Anemone and his superiors that predated the corruption matter. Anemone even acknowledged that prior to his contacts with the Times, he knew his job was in jeopardy.

Finally, since Anemone misrepresented the evidence in speaking with the Times, management probably had the right to fire him under Pickering v. Board of Education, a Supreme Court case from 1968 that says you can be fired if the value of speech was outweighed by its disruption in the workplace. The Second Circuit does not go that far however, deciding instead that the Mt. Healthy defense is satisfied because "evidence of the disruptive impact of potentially protected speech is relevant to the extent that it serves as an additional, permissible reason for which the government could have taken an adverse employment action against a government employee."

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