Monday, February 28, 2011

Free-speech do-over dismissed on Pickering balancing

If you follow Second Circuit decisions, you take note of the important ones that affect your area of practice, and you move on with your life, often unaware of what happened after the case was remanded to the district court. Some of these cases become famous in the Second Circuit, but they land with a thud back in the district court, which sometimes gets a second bite at the apple in dismissing it again.

The case is Sousa v. Roque, a summary order decided on February 22. Lawyers who handle public employee First Amendment retaliation cases might know the Sousa case, one of the few First Amendment decisions over the last few years to actually rule in the plaintiff's favor. A few years ago, the Second Circuit said a jury could find that Sousa (who claimed retaliation) spoke on a matter of public concern even if “he was motivated by employment grievances.” This language was good for plaintiffs' lawyers, who often have to deal with that precise argument by municipal defendants on a motion for summary judgment.

But the case did not end, of course. The Second Circuit sent it back to the District of Connecticut with a suggestion: "on remand, the District Court may wish to assume arguendo that Sousa’s statements did touch on ‘a matter of public concern,’ and proceed straight to ‘Pickering balancing.’” In other words, the defendants can still win if the plaintiff spoke on matters of public importance if his speech sufficiently disrupted the workplace to justify the retaliation. That's what the district court did. It re-analyzed the case under Pickering balancing and ruled that the value of Sousa's speech did not outweigh the government's interest in managing an efficient workplace.

Sousa's speech concerned workplace bullying against him. This speech is important, but not Earth-shattering, and despite Sousa's arguments to the contrary, they barely touched on financial mismanagement and public safety. On the other hand, his speech threw the workplace into disarray. The district court reasoned (712 F. Supp. 2d 34 (D. Conn. 2010)):

it is clear that Sousa was highly disruptive to internal operations at DEP towards the end of his tenure there. First, beginning in roughly January 2004, supervising Sousa became a "became a full-time job" for Smith, Sousa's immediate supervisor. Smith testified that, due to the amount of time she was forced to spend responding to correspondence sent by Sousa, she "was not able to do [her] other real job," which involved supervising three other individuals and working on a project of her own. Second, Sousa interfered with the Office of the DEP Commissioner by continuing to send correspondence to that Office despite being informed by a supervisor "not to send draft work product to the Commissioner, or anyone else, until the work was vetted and reviewed by the unit." Third, Sousa made accusations of "mobbing" against members of the Ombudsman's office, and threatened to sue Kaliszewski. Smith filed a written, hostile-work-environment claim at one point, informing Evans that she felt unsafe around Sousa. Fourth, Sousa was extremely uncooperative in scheduling an independent medical evaluation, which the DEP sought in order to determine whether Sousa was medically fit to return to work full time. Sousa failed to attend, or showed up late to, multiple appointments with the doctor who was appointed by the DEP to conduct the medical evaluation.

In balancing the value of Sousa's speech with the government's need for workplace efficiency, the district court on remand ruled that the government satisfied its burden under Pickering, dismissing the case. In cursory analysis, the Court of Appeals agrees, and the case is over.

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