Administrative Law Judge is legally denied promotion over mask-related argument on public train

The plaintiff was an administrative law judge for the Workers' Compensation Board. He sued the WCB under the First Amendment after it rescinded his promotion for Senior Administrative Law Judge. The promotion rescission took place after the WCB saw a TikTok video depicting plaintiff of arguing with a New Jersey Transit conductor about wearing a mask on the train. Does plaintiff have a case?

The case is Cestaro v. Rodriguez, a summary order issued on March 12. Public employees have the right to free speech, but those rights are limited because the government has an interest in ensuring that the public workplace operates efficiently. The government can also win the case if it proves it would have disciplined the plaintiff for other reasons, separate and apart from the speech. The latter concern draws from the Supreme Court's Mt. Healthy ruling, issued in 1977.

Plaintiff says the speech was his objection to wearing a mask on the train. But the Court of Appeals (Park, Chin and Merriam) finds that "Defendants were entitled to summary judgment because they established as a matter of law that they revoked Cestaro’s promotion based on his unprotected conduct, rather than on any protected speech." One judge at oral argument noted the plaintiff's behavior was "rude and belligerent." Plaintiff's counsel noted that, during the argument, plaintiff was not wearing a suit and tie but "shorts and flip-flops." The mask requirements during COVID certainly raised passions, and generally, disagreement with public safety mandates might raise a matter of public concern. You can imagine what this argument looked and sounded like to the other passengers on the train, or to the people who viewed the argument on TikTok.

But it was not plaintiff's objection to the mask mandate that cost him the promotion. Defendants proved on the summary judgment motion that plaintiff's conduct "was a poor way to treat workers," he was not "fair to the transit staff," and he was "unprofessional and aggressive" towards the conductor. Defendants did not discuss the constitutionality of masking requirements on public transit, or plaintiff's views on that subject. Instead, the record shows that defendants expressed concern about "having a supervisor at the state who behaves in this manner, because he cannot be trusted to be fair with the staff or the public."