Friday, December 16, 2011

Summary judgment reversed in First Amendment retaliation case

What do you have to do to win a First Amendment claim around here? The Court of Appeals tells us. Yesterday, I summarized a Second Circuit case that held that a teacher in Westchester County engaged in free speech when she reported child abuse at a former teaching job in Virginia a few years before the Mamaroneck School District denied her tenure in 2007. This blog post will talk about the other issues in the case.

The case is Nagle v. Marron, decided on December 12. The discussion on Nagle's protected speech is here. Management said that it had good reason to deny Nagle tenure because her superiors were thinking about letting her go even before they learned about her free speech. That's a common defense in First Amendment and employment discrimination cases. The Court of Appeals provides guidance in this area, perhaps for the first time, as it cites no cases to support its holding. It is settled law that "an adverse employment action occurs on the date that a decision was formally reached." While "events leading up to a formal decision will, in many situations, be relevant to the analysis of causation," management "cannot insulate itself from liability at the summary judgment stage simply by asserting that an adverse employment decision had in fact already been made, without being memorialized or conveyed to anyone, before the employer learned of the protected conduct." Here, Nagle's superior said "he was leaning" toward letting her go. Judge Calabresi writes that "a jury would be entitled to find that the Virginia events convinced him to follow his inclinations, and thereby played a part in his ultimate decision." But that does not mean the school district gets summary judgment. That supervisors were thinking about letting Nagle go does not mean they had reached a final decision. The free speech could have been the tipping point. As the Court of Appeals says, the jury could find that "the Virginia events convinced [the decisionmaker] to follow his inclinations, and thereby played a part in his ultimate decision." But, again, that's for the jury. By the way, the six week gap between defendants' learning about the protected speech and Nagle's termination is close enough to infer a causal connection.

An interesting sideshow bobs to the surface in this case. The school district says that, to the extent that Nagle's speech in Virginia caused them to terminate Nagle, "it was not the content of the speech that mattered but what they took to be Nagle's violation of school rules in reporting the abuse to the police rather than to her principal." The Court of Appeals is not buying this.The Second Circuit says, "this 'counter,' if anything, is evidence against Appellees' position. Just what Appellees believed about Nagle's conduct in Virginia, and how, if at all, those beliefs influenced their actions may well be issues critical to resolving this case."

The school district also says it was justified in letting Nagle go because she chose a particular book to read to her class without first consulting with the school psychologist. But there is no evidence that school customs or protocols required such a consultation. So the jury may reject that defense. Similarly, the school district says that Nagle sent a child home without speaking to administrators. But a superior testified that Nagle did not violate the rules in doing this. A jury has to decide if these are good reasons to fire Nagle. Other defenses are also rejected in the Second Circuit. Not only is there no evidence that Nagle had ongoing performance problems before she was fired (her performance reviews were "fair to positive"), but a strange reason to justify her termination -- that she ran out of a conference room in tears after hearing from third parties that she was going to be denied tenure -- is not so egregious as to merit dismissal of her case in light of the paucity of evidence that she was a bad teacher.

Nagle did not just sue individuals; she sued the school district. That means she has a Monell claim, which requires proof that the school board fired her pursuant to a policy or custom. You can show a policy if the final decisionmaker pulled the trigger. The school district is the policymaker, but it was the superintendent who made the recommendation to fire Nagle. The school board does not usually override the superintendent's recommendation. The Court of Appeals has never resolved this issue, but it cites an 11 year-old district court case from Alabama that says that a the superintendent may be deemed the "final decisionmaker with respect to personnel appointments" since "his recommendations are essentially those of the government body." So, if the board of education's vote is a formality and a rubber stamp, then the superintendent was delegated policymaking authority under Monell. Other Circuit courts seem to agree with this "cat's paw" theory. The Second Circuit suggests that the district court give this some thought on remand.

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