Thursday, May 28, 2020

District court grants plaintiffs judmgent as a matter of law in speech retaliation case

A federal judge has vacated a defense verdict and found as a matter of law that public employees suffered workplace retaliation in violation of the First Amendment. This is the rare case where a plaintiff wins such a retaliation case, and where the trial court overrules a jury verdict in favor of the employer on a post-trial motion.

The case is Cole-Hatchard v. Tower-Bernstein, issued by Judge Vratil (visiting from the federal court in Kansas) on May 22. The plaintiffs work for the Rockland County Probation Department. They sent a letter to the County Legislature complaining about matters of public concern. As the district court stated in a prior ruling, "the letter was intended to address the effect of the proposed relocation on (1) the Probation Department’s capacity to meet the needs of the population which it serves; (2) probationers’ ability to report to the proposed relocation and the impact on probation violations; (3) coordination between the Probation Department and other criminal justice agencies; and (4) County revenue."

The employer then issued a Memorandum of Warning, which explicitly stated it was in response to the plaintiffs' protected speech. The only issue at trial, then, was whether the Memorandum of Warning was an "adverse action" under the First Amendment. We define adverse actions as any employer response to speech that would dissuade a reasonable person in the plaintiff's circumstances from speaking out as a citizen. The jury said the Memorandum was not an adverse action. On the post-trial motion filed by plaintiffs, the trial court disagrees, and the plaintiffs win.

The district court says the memo would dissuade reasonable employees from speaking out again because it said that "further communications of this nature may result in disciplinary action taken against you." The defendant called an emergency meeting to reinforce that point. This reprimand "is a textbook example of adverse action," the district court states, citing Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002), and Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 225-26 (2d Cir. 2006), and several other cases, for that proposition.

Defendants argued in part that the memo was not serious enough to deter reasonable employees from speaking out, and that plaintiffs had job security and were therefore able to speak out without fear of reprisal. The district court does not see it that way, stating that "nothing in the evidence suggested that plaintiffs . . . were fragile snowflakes who were lacking in 'ordinary firmness,' that they enjoyed such extraordinary job security as to be invulnerable to the explicit threats and reprimands which they have received from Tower-Bernstein or that they 'knew' they could disregard the Memorandum of Warning and as constituents, speak freely to the Legislature." The real issue is how this memo would impact a reasonable employee; plaintiffs testified that they knew they were taking a risk in sending the protest letter, and that they they did not want to lose their jobs.

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