Public university employee could be retaliated against over nepotism complaint

Another First Amendment retaliation case is dismissed as the Second Circuit finds that decisionmakers did not violate the First Amendment in "retaliating" against a public employee who complained about nepotism at the University of Connecticut.

The case is Weinstein v. University of Connecticut, a summary order issued on December 4. Public workers do have free speech rights, unlike private employees, whose workplaces are not regulated by the Constitution. You cannot suffer retaliation for speaking on a matter of public concern, generally defined as anything that would interest the public. But speech on private matters is not protected under the First Amendment.

Weinstein brought a complaint to the University's Director of Compliance concerning the Dean of the School Business. In filing a labor grievance with the University, Weinstein said the Dean engaged in nepotistic behavior. This led defendants to decline to reappoint plaintiff to his position.

Public concern speech is protected under the Constitution in that public management cannot retaliate against the employees for speaking out. Speech about nepotism might be of interest to the public, but plaintiff loses because, in context, it was private speech. At a minimum, the Court of of Appeals (Livingston, Lohier and Cortty [D.J.]), these defendants have qualified immunity because reasonable public administrators could have believed in 2011 that it was legal to retaliate against plaintiff.

At the time the University decided not to reappoint Weinstein (2011), our case law indicated that for speech to be on a matter of public concern it should have “a broader public purpose” and not be merely “calculated to redress personal grievances.” By contrast, Weinstein’s complaints were “personal in nature and generally related to [his] own situation,” and did not expose “pervasive or systemic misconduct by a public agency.” Weinstein made his first nepotism allegations while disputing changes being made to the University’s Innovation Accelerator Program, and subsequently when contesting the University’s handling of his reappointment. In both instances, his speech was focused on the private matter of his employment, which is not a matter of public concern.