Another public employee speech claim is dismissed

The plaintiff was fired from his job as a psychiatrist at the University of Connecticut Health Center. He claimed it was in retaliation for a prior lawsuit he filed against the Commissioner of the Department of Corrections. Plaintiff had done some work for DOCS inmates. The case is dismissed because the prior lawsuit was not protected First Amendment activity.

The case is Lakner v. Lantz, a summary order decided on October 10. Public employee speech is only protected when they speak on matters of public concern. Personal grievances don't count. Prior lawsuits may qualify as free speech, but only if they raised matters of public concern, that is, a matter of political, social or other concern to the community. Since many lawsuits concern the plaintiff's own grievances (lost promotion, mistreatment at work), they do not rise to the level of public concern speech.

How can a lawsuit be a matter of private concern, you ask. What about the Petition Clause of the First Amendment, which says you are allowed to petition the government for grievances? Lawsuits essentially are petitions. But the Supreme Court in 2011 said that the "public concern" test governing routine employee speech/retaliation claims also applies to cases brought under the Petition Clause. This means that some lawsuits are not protected speech. This one is not. The Court of Appeals (Lynch and Carney) says that plaintiff's prior litigation against DOCS -- alleging breach of contract -- was not of any concern to the community, only to plaintiff. This means that defendants could retaliate against him for the lawsuit.

The string of public employee/First Amendment dismissals continues. These plaintiffs have to squeeze through a narrow tunnel to prevail on a motion for summary judgment and even a motion to dismiss under Rule 12. The Supreme Court's 2006 ruling in Garcetti requires that, to make out a case, the plaintiff speak as a citizen and not pursuant to his job duties. The Petition Clause ruling in 2011 doesn't make it any easier.