Wednesday, February 1, 2017

Go along to get along

Belligerency is no way to get along with people. In other words, sometimes it's good to go along to get along. In this First Amendment retaliation case, the plaintiff, who was dean at the University of Connecticut School of Business, loses his case because he could not get with the program.

The case is Weinstein v. University of Connecticut, a summary order decided on January 20. Many public employee free speech cases are dismissed before trial because the plaintiff did not actually engage in free speech on the job. Under the complicated rules set down by the Supreme Court, speech is protected under the First Amendment only when it's uttered as a citizen. This means that work-related speech is not protected under the Constitution and you can be fired for it. But in this case, Weinstein did engage in free speech when he complained about nepotism at the college. He claims the college declined to reappoint him as Director of the Innovation Accelerator program in retaliation for that speech. The Court of Appeals agrees.

Even if you did engage in free speech, to win the case, you have to show your employer fired/demoted/failed to reappoint you in retaliation for that speech. This is where it gets even trickier. Under what we call Mount Healthy balancing (named after a 1977 Supreme Court ruling), even if the plaintiff shows he was shafted because of his speech, the employer wins the case if it proves the employee would have been shafted even had he not uttered the speech. That's what happened here. The Court of Appeals (Raggi, Chin and Lohier) says that plaintiff had repeatedly questioned the college's proposed changes to the Innovative Accelerator program, even after management told him that his objections were counterproductive to the school's program goals.

In support of the college's position, when it notified plaintiff that he would not be reappointed, it advised him in writing that it had "significant doubts regarding your commitment or 'buy in' to the new program design" and that his view that the program was a 'sinking ship" was problematic. The Second Circuit "easily conclude[s] that the record evidence convincingly demonstrates a determinative link between" plaintiff's objections "and the challenged adverse action that would compel a jury to make a preponderance finding that Weinstein would not have been reappointed Director even without his nepotism complaint."

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