Supreme Court Employment Law: Decisions Limit Employee Free Speech Rights
Supreme Court Employment Law: Decisions Limit Employee Free Speech Rights
Employers must also guard against ‘hostile work environment’
The Connecticut Law Tribune
September 19, 2012
The latest Connecticut Supreme Court term included six major decisions that impact employers, and therefore should impact the advice attorneys give their clients.
Private Sectors Employees’ Speech Not Protected
This term, the Court decided two companion cases related to First Amendment free speech rights, Schumann v. Dianon and Perez-Dickson v. City of Bridgeport. Both cases involve reversing substantial plaintiff’s awards and limiting the application of Connecticut General Statutes § 31-51q, a statute protecting employees from discipline or discharge for exercising their First Amendment rights under the state and federal constitutions.
In Schumann, the Court held an employee in the private workplace was not entitled to First Amendment protection, overturning a $10 million award. The plaintiff was a cytopathologist (studies disease changes within individual cells or cell types) performing urine diagnostic tests at a medical testing laboratory. He objected to the use of a new test and the introduction of new diagnostic terms, and voiced his disapproval. The defendant terminated the plaintiff, citing an unexcused absence and the plaintiff’s decision not to use the new diagnostic terms. The plaintiff brought a case based on common-law wrongful termination and statutory wrongful discharge under C.G.S. § 31-51q.
The Court undertook an analysis of whether the plaintiff’s speech was protected under the First Amendment. A key issue was the U.S. Supreme Court’s ruling in 2006 in Garcetti v. Ceballos, where the Court held that statements made by public employees pursuant to their official duties is not protected speech. Since First Amendment protections typically apply to public employers, the issue in Schumann was whether Garcetti applied to private employers under C.G.S. § 31-51q, a statute that protects employees in both private and public workplaces.
The Court held Garcetti does apply to private employers and that a threshold analysis should be done based on Garcetti before the Pickering/Connick test (a balancing test between an employee’s right to speak and an employer’s interest in the effective operation of the workplace). The Court found the federal constitutional claims were barred by Garcetti because the speech was about his ability to properly execute his job duties. The Court did not address whether the state constitution gave additional rights because under the balancing test, the speech was not protected.
Under the Pickering/Connick test, the Court found the plaintiff’s speech was “extraordinarily disruptive,” because it took place at work, it interfered with the plaintiff’s job performance, it placed strain on his relationships with co-workers, it created division within the company, and it was insubordinate. The case was remanded for a new trial limited to the plaintiff’s common-law wrongful termination claim.
In the companion case, Perez-Dickson, a school principal brought an action against the board of education and two public school administrators. The action was based on improper discipline for exercising her First Amendment rights under C.G.S. §§ 31-51q (explained above) and 17a-101e (which prohibits discipline of employees who make required reports of suspected child abuse), racial discrimination, and intentional infliction of emotional distress. The jury found for the plaintiff on all counts and awarded $2 million, which was subsequently reduced to $1 million.
The state Supreme Court found the plaintiff’s statements made to the Department of Children and Families, regarding alleged abuse by two teachers, were not protected by C.G.S. § 31-51q because the speech was pursuant to her job duties and not a personal opinion protected by the First Amendment. The claim was therefore barred under Garcetti.
The Court stated that there is no private action under C.G.S. § 17a-101e, and reversed the other two claims, stating the plaintiff did not prove either claim. The Court remanded the case with direction to render judgment for the defendants.
This case is important beyond its free speech holding. This case will likely be widely cited because it sets out the framework for proving a prima facie case and the respective burdens, for racial discrimination cases brought pursuant to 42 U.S.C. §§ 1981 and 1983, as well as guidance on the use of circumstantial evidence in discrimination cases.
The state Supreme Court determined that circumstantial evidence of a plaintiff being treated differently than other employees in the same or a similar situation was not as persuasive as the employee believed. The Court held that the plaintiff’s proof, that defendants treated seven white employees and four African-American employees more favorably than they treated her when she was accused of abusing a student, was insufficient as a matter of law to raise the inference of intentional racial discrimination.
Clients may feel that they have a strong circumstantial case, but as this case shows, it may not be enough.
‘Hostile Work Environment’ Includes Sexual Orientation
In Patino v. Birken Manufacturing Co., the Connecticut Supreme Court held that employers who fail to take reasonable steps to prevent employees from being subjected to hostile work environments based on sexual orientation will face liability.
The plaintiff, a machinist, commenced an action against his former employer, an industrial plant, claiming discriminatory employment practices by allowing co-workers to harass him based on his sexual orientation throughout his 14 years of service.
The plaintiff was the regularly subject of anti-gay harassment on the shop floor consisting of derogatory slurs in his presence. He notified his supervisors multiple times, and started keeping a diary of the slurs. The plaintiff filed a total of five complaints with the Commission on Human Rights and Opportunities, of which the fifth complaint was the subject of the court case. The jury returned a plaintiff’s verdict of $94,500 in non-economic damages. The state Supreme Court affirmed the award.
The Court found that C.G.S. § 46a-81c, which prohibits discrimination based on sexual orientation, includes a cause of action for hostile work environment. Historically, hostile work environment only applied to gender discrimination.
Under this decision, Connecticut employers will likely be responsible for preventing a hostile work environment based on other protected classes, such as race, color, religious creed and age. Attorneys should review the anti-harassment policies and training of their client-employers to ensure other protected classes under Connecticut law are covered.
Worker Deemed To Be ‘Employee’ Of Four Towns
In Rettig v. Town of Woodbridge et al., the plaintiff was working as an animal control officer for the district animal control office, an inter-municipal district serving Bethany, Orange, Prospect and Woodbridge. She slipped and fell during the course of her employment and settled a workers’ compensation claim for $800,000. She also filed a claim in court for negligence and nuisance.
The Court affirmed the decision of the trial court that granted defendants’ motions for summary judgment, determining that the plaintiff was an employee of each of the towns that made up the district, and as such, her claims were barred by § 31-284(a) of the Workers’ Compensation Act. The Court rejected the plaintiff’s argument that the inter-municipal district was her employer and controlled the means and methods used to perform her job, as opposed to the individual districts.
This case is in line with past cases that have held that members of a local board of education are officers of the town they serve. This case is good news for municipalities looking to create intermunicipal authorities and districts in an effort to reduce costs.
New Trial Requires Probability Of New Result
In Duart v. Department of Correction, the state Supreme Court affirmed the judgment of the Appellate Court, which affirmed the trial court’s denial of her motion for a new trial. The Court held the rule governing new trials, set forth in Varley v. Varley, requiring the movant to demonstrate the results at trial would have been different, applies to post-trial motions alleging knowing and deliberate discovery misconduct.
The plaintiff in this case alleged discrimination based on gender and sexual orientation, and retaliation. The jury returned a verdict denying the plaintiff’s claims. The Court’s review did not reveal a reasonable probability the result of a new trial would be different and therefore found no basis to overturn the trial verdict.
Official Does Not Have Absolute Right to Salary
A very creative attorney took the position that public officials must be paid until they are removed from office. In Stewart v. Watertown, the Court disagreed. The Court held there is no absolute right to payment for employees who hold an office. To the contrary, there is a relationship between payment and performance of duty, and when no duty is performed, no payment is due.