Saturday, August 18, 2007

Circuit reinstates First Amendment retaliation case

Public employees have one advantage that private employees can only dream about: they cannot suffer adverse consequences from speaking out on matters of public concern. The First Amendment protects public employees from retaliation for engaging in constitutionally-protected activity. That entitlement won a public employee from Connecticut a jury trial in Dillon v. Morano, decided on August 16 by the Court of Appeals.

This was the case of two lawsuits. Dillon initially sued Bailey, the State's Chief Attorney, over retaliation for blowing the whistle on bad search warrant applications that law enforcement submitted to Federal judges. After a jury ruled in Dillon's favor in that suit, Bailey was replaced by Morano, who, according to Dillon, retaliated against Dillon for suing Bailey. Dillon's primary claim against Morano was that Morano failed to promote Dillon for the position of Chief Inspector for the Division of Criminal Justice. According to Dillon, Morano openly disparaged Dillon to others in the workplace for suing Bailey and blowing the whistle on the bad search warrants. Not only did Morano condemn the betrayal occasioned by Dillon's whistleblowing and lawsuit against Bailey, he gave inconsistent reasons for denying Dillon the promotion and violated office procedures in filling the Chief Inspector's position.

The district court granted summary judgment, dismissing Dillon's claim without a jury trial, concluding that even if the jury found that Morano denied Dillon the promotion in violation of the First Amendment, the jury would find that Morano would have made the same decision even without Dillon's lawsuit against Bailey. We call this the Mount Healthy defense, named after a 1977 Supreme Court ruling that allows defendants to avoid liability in First Amendment retaliation cases when the defendant would have made the same employment decision even without the First Amendment activity.

The Court of Appeals (Pooler, Straub and Vitaliano) reversed, holding that the jury could make two findings in Dillon's favor: first, the jury could agree that Dillon was denied the promotion based on his successful prior lawsuit in light of Morano's hostile comments about Dillon's protected activity and also because, among other things, Morano violated office procedure in making this adverse decision. From time to time, the Court of Appeals reminds us that departures from normal procedures in reaching adverse job decisions represent circumstantial evidence of retaliatory and discriminatory intent.

This decision is notable in the Circuit's finding that the jury has to decide whether the employer would have denied Dillon the promotion even without Dillion's protected activity under the First Amendment. As noted above, the Mount Healthy defense is something of a legal fiction in that, even if the plaintiff shows he lost a job benefit in violation of the First Amendment, he still loses if the employer would have made that same decision anyway. In this case, the Court of Appeals decided that the jury has to untangle these competing motives for the promotion denial because, while the jury could find that Morano would have made the decision even without the constitutionally-protected activity, it was not required to in light of the direct and circumstantial evidence favoring Dillon's position. Since Morano's credibility is at stake in respect to his motive for denying Dillon the promotion, a jury has to decide the case, not a court on a motion for summary judgment.

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