Wednesday, August 21, 2013

No speech for you

In this First Amendment case, a public contractor that provided roadway construction and paving services to the New York State Department of Transportation suffered retaliation "after it became embroiled in a series of disputes with DOT relating to its work on two DOT projects." The contractor sues under the First Amendment. The case is rejected under Rule 12.

The case is Fahs Construction v. Gray, decided on August 8. Independent contractors do have First Amendment rights in retaliation cases. The Supreme Court said so in 1996. But the contractors, like everyone else, have to speak on matters of public concern. If the speech is too personal to the plaintiff, then the speech is not protected and the State can strike back at the contractor. That's what happened here. The Second Circuit (Pooler, Lohier and Carney) writes:

The content of Fahs’s speech was almost exclusively personal to the company. In filing claims with DOT, Fahs sought to recover additional compensation and secure extensions of time to complete its projects. Although at times Fahs’s speech may have “touch[ed] on a topic of general importance,” it “primarily concern[ed] an issue that is personal in nature” – Fahs’s compensation. The context of Fahs’s speech was also almost exclusively personal. The complaint makes clear that Fahs’s speech was meant to – and did – achieve the “resol[ution] [of its] claims to the substantial advantage of Fahs.” Nothing in the complaint suggests that Fahs attempted to use the claims process to shed light on DOT’s contracting practices more generally. In addition, the form of Fahs’s speech was exclusively nonpublic. In filing its claims and requests for extensions of time, Fahs availed itself of a dispute resolution mechanism entirely internal to DOT. Nothing in the complaint suggests that Fahs made a single public statement or ever intended to make such a statement.
Plaintiff also sues under the Equal Protection Clause, alleging that it was treated differently than another contractor, Lancaster. Claims like this are potentially viable, but this one is not, because plaintiff did not bring this action within three years of the last discriminatory act. "The only acts described in the complaint that are alleged to have occurred within the three-year limitations period are Gray’s alleged refusals to 'close out' (i.e., to complete the financial reconciliation of) the Fahs contract. But there are no comparable allegations about the treatment Lancaster received during the close-out phase of its contract. Because Fahs has not alleged any “non-time-barred acts” of discrimination, there is no basis to delay the start of the limitations period." Yes, that kind of precision is needed to sustain an equal protection claim. 

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