Public employee fired for filing civil rights lawsuit

Did you know that, with few exceptions, public employees can be legally fired in retaliation for filing a non-frivolous lawsuit against their public employers? It's true. These are not First Amendment cases anymore. The plaintiff files these lawsuits at his own risk.

The case is Connolly v. City of Rutland, a summary order decided on November 5. Years ago, federal judges in the Second Circuit held that the First Amendment prohibited employers from firing public employees who filed civil rights cases against their employers. But if you follow First Amendment retaliation cases in the Second Circuit (and around the country) you know that public employee speech rights have dwindled over the last decade or so.

Connolly's initial lawsuit alleged that the City violated her due process rights under the Constitution in terminating her employment. Although it is not clear in the Second Circuit or district court opinions, Connolly was somehow retaliated against by the Town after filing that lawsuit. She claimed the First Amendment protected her from retaliation for bringing the lawsuit because it raised "a matter of public concern," the legal standard for protected speech by public workers. But the lawsuit does not raise a matter of public concern. While Connolly tries to satisfy this test by arguing that the due process case highlights the way the City manages its affairs, that argument doesn't cut it these days. The district court wrote:

Connolly argues that her lawsuit is protected speech because its content "is of significant importance and interest to the citizens of Rutland" and the lawsuit "concerns the means and methods by which the City's . . . budget and property tax rates were adopted." Connolly further asserts that the content of the speech "concerns [Mayor Louras's] claim, made in the City's Annual Report . . . that he had to eliminate funding for three full-time employees in order to achieve his political goal of `maintaining the tax rate.'" Connolly's original Complaint, however, raised claims arising out of Defendants' conduct in connection with her termination. Just as the plaintiff in Huth v. Haslin, 598 F.3d 70 (2d Cir. 2010), the nature of Connolly's lawsuit is personal to her and generally related to her own situation. Likewise, there is no suggestion in her complaint that Connolly seeks to "debate issues of discrimination" or obtain "relief against pervasive or systemic misconduct by a public agency or public officials." Nor is there any indication that this lawsuit is part of an overall effort to correct allegedly unlawful practices or bring them to public attention.

Nearly every public employee lawsuit against his employer will in some way implicate the public budget or personnel policies or some other matter of esoteric interest to the community. But you need more than that to show the lawsuit raised a matter of public concern. The district court said,

Connolly's lawsuit does not directly 'concern' the City budget or claims made in its Annual Report. Her lawsuit was neither brought to '[d]iscuss[ ] . . . current government policies,' nor 'aimed at uncovering . . . breaches of public trust.' Connolly's only argument related to the City budget pertains to her claim that the City's 'lack of funds' is a sham. This argument constitutes a complaint about Connolly's  'own dissatisfaction with the conditions of [her] employment.' Accordingly, Connolly's lawsuit does not pertain to a matter of public concern.

The Second Circuit (Raggi, Pooler and Leval) upholds this reasoning, and the case is dismissed.