First Amendment retaliation cases brought by public employees who get fired for speaking out have a trap door that we call the Mount Healthy defense, named after a Supreme Court decision from 1977 that says that even if the plaintiff proves he was fired or demoted for speaking out, the employer can still win the case if it proves that it would have fired or demoted the plaintiff for non-retaliatory reasons. This case provides some much-needed guidance on that principle.
The case is Smith v. County of Suffolk, decided on January 14. In many ways, Mount Healthy is a hypothetical question, but one that can break any case. I am not sure how jurors can apply this confusing defense, but at trial, the question is dropped in their lap. In this case, the case never went to the jury because the trial court said the employer satisfied its Mount Healthy defense on paper. The Court of Appeals (Hall, Livingston and Brodie [D.J.]) reverses and remands the case for trial.
The plaintiff was a police officer who got nailed at work for various computer-related offenses, including unauthorized Internet use and some job-related problems. But he was also written up for emailing newspaper reporters about a botched murder case and abuses committed by the Suffolk County DA's office. Since the newspaper emails constitute free speech, we have a mixed motive case. The charges against Smith make reference to the free speech, so the jury can find that he was disciplined in retaliation for speaking on matters of public concern. But what about the other stuff he was written up for, things that were not protected by the First Amendment? That's where Mount Healthy kicks in.
The question is "whether defendants have demonstrated that a reasonable jury would have to find by a preponderance of the evidence that the Department would have investigated, transferred, and suspended Smith absent his citizen-media speech." The Court adds, "the unprotected conduct, standing alone, must justify the adverse actions." In other words, "would the defendant have taken the same adverse action even if the impermissible reason had not existed?"
While defendants "have presented considerable evidence of considerable misconduct that is separate and distinct from the incidents of speech the district court determined were subject to First Amendment protection," the best that defendants can do at this stage of the case is to argue that "irrespective of Smith's expression of his opinion to news media and others, reasonable and adequate grounds supporting charges for misconduct for flagrant disregard of department computer and Internet use existed." That general statement won't cut it on a summary judgment motion. The Court says "the Mount Healthy defense ... demands more than this type of general conclusion."
So here's the bottom line: "defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice." So, the Court says, while a jury can find that Smith would have been disciplined solely for the non-speech related misconduct, "a reasonable jury might just as easily infer that because the Department did not transfer Smith following his similar misconduct in the past, he was transferred because of his protected citizen-media speech, rather than in spite of it as defendants argue." The issue raised here, then, is: "Why did the Department discipline Smith in the manner that it did?" As this raises questions about motive, that question is for the jury.