School district gadfly wins free speech retaliation appeal

This public school teacher was suspended and faced disciplinary charges only one month after he filed an Article 78 petition alleging the Board of Education had violated the Open Meetings Law. He sued under the First Amendment, but the district court threw out the case prior to trial. The Court of Appeals reinstates it, issuing one of the more interesting summary order rulings I've seen this year.

The case is Zehner v. Jordan-Elbridge Board of Education, a summary order decided on November 18. This is a non-precedential ruling, but it provides good insight into how these cases work. While teachers have some First Amendment rights and cannot suffer retaliation for exercising those rights, school districts and other public employers have a variety of defenses that can kill off your case.

There seems to be no issue whether the Article 78 petition is First Amendment speech. Defendants must have conceded that issue and went for its other other defenses: (1) there is no connection between the free speech and Plaintiff's suspension. The Court of Appeals (Walker, Chin and Hall) notes that "not even a month after instituting an Article 78 proceeding, in which Zehner alleged the Board violated New York's Open Meetings Law -- an allegation ultimately decided against the Board -- Zehner was suspended and faced discipline charges. That month-long gap is short enough to draw the inference that the Board had retaliated against Zehner.

While the causation issue is run-o'-the mill, the Mount Healthy issue is not. Mount Healthy is a constitutional doctrine that says that even if the defendant retaliated against the plaintiff in violation of the First Amendment, the defendant still wins the case if it proves that it would have targeted the plaintiff anyway, even without the free speech. Applying this principle in its elementary form, let's say Johnny Fungo works for a government office. Johnny sucks at his job and got caught faking his time sheets. At the same time, Mr. Fungo blew the whistle on rampant fraud at his agency. Management can't take it anymore and fired Johnny two weeks after the whisteblowing. While the termination was motivated in part by the free speech, let's face it, he would have been fired anyway because of the recent time sheet shenanigans. That's how Mount Healthy works.

In this case, the jury must decide whether the school district can invoke Mount Healthy. On the summary judgment motion, the district's witnesses attested that Zehner was going to be disciplined even without the speech, but the Court of Appeals says this is speculative: "it is insufficient to show that the Board might have or could have suspended or disciplined Zehner on some legitimate grounds." The Court cites Smith v. County of Suffolk, 776 F.3d 114 (2d Cir. 2015), for this proposition. While the Board introduced counseling memos to show that it was worried about plaintiff's workplace issues, they "merely show that the Board was concerned over rather minor and trivial issues involving Zehner," such as missing camera equipment, poor written communication skills and failure to follow school district procedures for various issues. These do not seem like trivial issues, but, the Court of Appeals says, "only two memos mention possible further investigation and disciplinary action based on inappropriate comments to students." The Court goes on to reason:

Considering that the Board did not bring complaints against Zehner until approximately seven months after the issuance of these two memos and after Zehner had prevailed on his first Article 78 action, and viewing the evidence in the light most favorable to Zehner, it is difficult to find a reasonable, non-retaliatory connection between Zehner's alleged misconduct and the actions the Board took against him. On the present record, viewed as we must view it, it cannot be said that the Board has established by a preponderance of the evidence that it would have suspended Zehner and filed disciplinary charges against him even in the absence of his protected First Amendment conduct. It is inappropriate, therefore, to grant defendants summary judgment on these grounds. Instead, it should be left to a jury to determine whether the Board's justifications for its actions were merely pretext for retaliation in response to Zehner's protected conduct.

Zehner prevails on other issues in this appeal. He was kicked out of Board of Education meetings, allegedly because of his disruptive behavior at meetings. It appears he spoke loudly at meetings and spoke over his allotted time. But the Court of Appeals says this was not so disruptive as to warrant his expulsion from meetings. 

On top of that, plaintiff prevails on a claim under NY Education Law 3028-d, which is quite obscure for most of us. It says you cannot retaliate against a school district employee for reporting on financial practices that violate laws or regulations. While the district court said this claim must fail because plaintiff did not cite a specific law or regulation that the Board had violated, the Second Circuit says he was not required to do so. All plaintiff  needed to show was that he held a reasonable belief that the Board had engaged in illegal financial practices. As the Circuit cites a State Supreme Court ruling for this point, it's fair to say the Second Circuit has never previously resolved a claim under Education Law 3028-d.