Free speech retaliation case is dismissed

This case presents a harsh lesson for plaintiffs who are trying to prove they were terminated illegally. The Court reminds us that if management was already working to fire you, your protected activity (such as free speech or complaints about discrimination) will not always be the true case of your termination. Which means you have no case.

The case is Morales v. City of New York, a summary order issued on July 21. This is a free speech retaliation case. Plaintiff provided information to the a city agency that was investigating allegations against the Department of Citywide Administrative Services, where he worked. He was fired five months later. 

We have a bunch of issues here. The City argued that plaintiff did not even engage in free speech because, in providing this information to investigators, he was not speaking as a citizen (protected speech) but as an employee, pursuant to his job duties (not free speech). That distinction between protected and unprotected speech arises from the Supreme Court's Garcetti case (2006). You might argue that answering questions pursuant to an official investigation is still citizen speech because every citizen has a duty to answer these questions truthfully. But the Court of Appeals sidesteps that issue because it finds another way to dismiss the case.

The problem for plaintiff is that the employer began considering plaintiff's termination even before he participated in this investigation. The speech was June 2016. In spring 2016, management was discussing plaintiff's termination for reasons that are not clear in the court decision. "An employer's decision to proceed along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality." That's what the Supreme Court said in Clark County v. Breedon (2001). That rule undercuts plaintiff's case here, and summary judgment in favor of the employer is affirmed..