Friday, April 26, 2013

Speculative retaliation verdict eliminates $350k damages award

After finding that he was denied reinstatement as a firefigher in retaliation for his whistleblowing, a jury awarded Kenneth Monz $350,000 in damages. The district court then granted the fire district's post-trial motion to set aside the verdict for insufficient evidence. The Court of Appeals affirms, and the $350,000 is gone for good.

The case is Monz v. Rocky Point Fire District, a summary order decided on March 26. First Amendment retaliation verdicts are hard to come by these days, mostly because the Supreme Court in its 2006 Garcetti decision eliminated protection for public employees whose speech arises from their official job duties. Even proving that citizen speech is protected under the First Amendment can be a puzzle as well, because it has to be on a matter of public concern, which eliminates trivial and personal grievances from constitutional protection. What dooms this case is the court's finding that, even though Monz engaged in protected speech, his retaliation took place long after that speech and the fire district had a compelling unrelated reason to deny him reinstatement.

The protected speech was Monz's complaint that there was too much drinking at the firehouse and the fire department's "frat-boy" image. I would say this is borderline "public concern" speech under the First Amendment. But that's not my call. The courts said this was citizen speech for which plaintiff could not be terminated.

As the Court of Appeals (Wesley, Droney and Briccetti [D.J.]) sees it, the problem for Monz was actually two problems: first, when he resigned in 2003, the fire chief noted in writing that Monz resigned in "bad standing" because he was not participating in enough fire department events. And, there was a four-year gap between the speech and the reinstatement denial. So the jury's contrary finding that plaintiff's speech about firehouse drinking caused his termination was too speculative. And the very large jury verdict goes down the drain.

An interesting tidbit from the district court opinion shows how Moniz tried to get around the four-year causation gap. He argued that direct evidence established retaliatory intent because some fire department officials gave him the cold shoulder. While plaintiffs sometimes emphasize evidence like this in trying to prove their case, mere dislike is not evidence of retaliatory intent, the district court held, citing cases from around the country, including McCook v. Spriner School District, 44 Fed. Appx. 896 (7th Cir. 2002), Miller v. N. Belle Vernon Borough, 2010 WL 4388069 (W.D. Pa. 2010) and Heffernan v. Straub, 612 F. Supp. 2d 313 (S.D.N.Y. 2009). My guess is that courts think this method of proof is to vague and that courts do not want to read too much into the personality disputes that characterize many a workplace.

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