Wednesday, March 1, 2017

2d Circuit gets around Garcetti defense in employee speech case

The Supreme Court had an unusual opinion last year, holding that government officials cannot fire or discipline employees over their mistaken belief that the employees had engaged in free speech activity. This means the plaintiff can win even if he did not in fact engage in free speech. That ruling helps this plaintiff, who was fired because a superior thought he had organized a demonstration outside a middle school in New York City.

The case is Hughes v. City of New York, a summary order issued on February 21. That Supreme Court case is Heffernan v. City of Patterson, 136 S. Ct. 1412 (2016), which said First Amendment retaliation claims may be based on a "perceived" association, rather than an actual protected association. In the Hughes case, the plaintiff was a public school employee who was sent out by management to watch a demonstration. But the Chancellor thought Hughes had organized the demonstration that led to the Superintendent's vehicle damage.

Step back for a minute and think about what's going on here. If you bring a lawsuit with a disputed legal theory and the Supreme Court issues a ruling that is right on point and advances your case all the way to the finish line, then you know for sure that God really does exist and the angels are looking over your shoulder.

Back to the case. The district court dismissed the case under Rule 12, ruling that Heffernan did not control the outcome because Hughes had engaged in work speech, not citizen speech, because someone at work had sent him out to watch the demonstration. The work speech/citizen speech distinction derives from a different Supreme Court ruling, Garcetti v. Cebellos (2006). But the Second Circuit (Calabresi, Leval and Carney) sees it differently, holding that "the mere fact that he was present at the demonstration because his employer assigned him to be there to observe does not compel the conclusion that any speech he engaged in related to the demonstration was pursuant to his employment duties."

This decision was issued as a summary order. But it could have been a published opinion. This is probably the first case in the Second Circuit to apply Heffernan, and the Garcetti distinction is rare in this Circuit, which has repelled close-call Garcetti arguments in only a handful of cases.

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