Tuesday, January 13, 2009

First Amendment retaliation lawsuit is not protected speech under the Constitution

The First Amendment prohibits government employers from retaliating against employees who speak out on matters of public concern in the workplace. Not too long ago, the assumption was that merely filing a lawsuit against a public employer in Federal court was deemed First Amendment activity and that the public employer could not retaliate against the plaintiff for bringing that lawsuit, no matter what the initial lawsuit alleged.

In fact, that notion seemed self-evident, primarily because seeking redress in court seems inherently protected under the First Amendment. See, e.g., Glenview v. Bucci, 165 F. Supp. 2d 545 (S.D.N.Y. 2001) (a case that I worked on), which went even further, holding that a business which threatens to bring a state court lawsuit involving breach of contract can bring a retaliation lawsuit against a municipality which takes further adverse action against the business for making that threat.

This has changed, as reflected in a recent Southern District ruling, which applies recent Second Circuit authority. The case is Kempkes v. Marvin, 2008 WL 5330673, decided by Judge Karas on December 19, 2008. In February 2007, the plaintiff, a police officer, sued his employer, Village of Bronxville and various supervisors, alleging that they violated his due process rights by terminating his disability benefits and reducing his salary. He also alleged that the salary reduction was retaliation for expressing concerns about the police department's alleged discriminatory hiring practices as well as selective prosecution against racial minorities. He then amended the complaint to allege that defendants retaliated against him by pursuing disciplinary proceedings against him, by depriving him of disability benefits and denying health insurance coverage to his wife.

In Demember 2007, plaintiff sued the village again, this time alleging that he was terminated in retaliation for bringing the February 2007 lawsuit. That complaint is now dismissed because, Judge Karas holds, the February 2007 lawsuit was not speech on a matter of public concern but personal speech unprotected by the First Amendment. The critical factor is that the February 2007 suit sought damages that were entirely personal to plaintiff.

Dismissal is compelled by the Second Circuit's ruling, Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008), where the Court of Appeals held that the city could lawully retaliate against Ruotolo for bringing a free speech retaliation claim in connection with his public employment as a police officer. As Judge Karas notes in summarizing the Ruotolo decision, "The Ruotolo court concluded that though the plaintiff's complaint 'accuses the City of routinely tolerating the violation of whistleblower rights, and seeks punitive damages to deter ‘future illegal and retaliatory conduct,’ arguably hinting at some broader public purpose,' this was not enough to 'br[ing] within the protection of the First Amendment' 'retaliation against the airing of generally personal grievances.'” In other words, Ruotolo was making broader allegations about the City's treatment of whistleblowers, but since the lawsuit was primarily about Ruotolo, it was personal speech, not speech on matters of public concern.

Judge Karas sees no difference between this case and Ruotolo, and so this case is dismissed because Kempkes did not engage in free speech in filing the February 2007 lawsuit. Kempkes is represented by an experienced civil rights lawyer, however, who urges Judge Karas to apply Konits v. Valley Stream School District, 394 F.3d 121 (2d Cir. 2005), which held that if plaintiff's lawsuit #1 alleged job-related retaliation for testifying in favor of a co-worker in a legal proceeding, that lawsuit is protected First Amendment speech because it was not strictly personal to the plaintiff. This means, the Konits court held, that lawsuit #2 alleging retaliation for filing lawsuit #1 cannot be dismissed. "Because [the plaintiff's first] lawsuit was predicated on speech about gender discrimination against a fellow employee that directly implicated the access of the courts to truthful testimony," Id. at 125-26, Judge Karas deems Konits distinguishable from Kemkes.

Summarizing the consequences of Konits and Ruotolo, Judge Karas writes: "It is difficult to accept the notion that the filing of a lawsuit alleging retaliation for the filing of a retaliation lawsuit alleging retaliation for the filing of a retaliation lawsuit automatically constitutes speech on a matter of public concern so long as the very first lawsuit stated a claim for retaliation, where the action otherwise only vindicates a plaintiff's purely parochial interests."

Got that? The short version is that seeking redress in Federal court is not inherently protected under the First Amendment. That means that public employees can be fired for bringing lawsuits which seek damages that are unique to their own situation as opposed to lawsuits which have a broader public purpose.


Lindsey said...

I thought you might be interested in this letter written by Army Corps of Engineers whistleblower Bunny Greenhouse, who was retaliated against after she testified to Congress last week. Ms. Greenhouse is calling on all Americans to support whistleblower protection for federal employees. To read her letter go to http://capwiz.com/whistleblowers/issues/alert/?alertid=13371836

DouglasWilson said...

Perhaps plaintiff's counsel picked the wrong constitutional right upon which to base the claim of retaliation for filing the lawsuit. Rather than try to stretch the Pickering line of First Amendment cases, why not focus on retaliation for exercising the right of access to the courts, or due process?