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2nd Circuit: Motive Not Dispositive Regarding Speech's Public Concern
New York Law Journal
August 25, 2009
Motive is not dispositive in determining whether an employee has spoken out on a matter of public concern, a federal appeals court has ruled in clarifying its "less than clear" precedents with regard to First Amendment retaliation claims.
In Sousa v. Roque, 07-1892-cv, the 2nd U.S. Circuit Court of Appeals reinstated the retaliation lawsuit of a Connecticut state employee.
The appeal was decided by Judges Jose A. Cabranes and Peter W. Hall and, sitting by designation, Eastern District of New York Judge John Gleeson.
Bryan Sousa claims he was terminated from his position at the Connecticut Department of Environmental Protection for complaining about incidents of violence in the workplace.
Sousa had an altercation with fellow employee Jonathan Goldman in October 2002 after which both men were suspended for three days without pay.
Sousa followed by making a number of complaints to DEP officials about his suspension, raising hostile work environment concerns. He said he had been the victim of "mobbing" in that he was abused by a number of low-level employees over a period of time.
On July 23, 2003, Sousa sent an e-mail to two fellow employees about sending a book on "mobbing" to the DEP's Work Place Violence Threat Assessment Team.
"When you read the book you will recognize that mobbing can often result in the death of the victim, either due to illness, accident or suicide," he wrote. Mobbing, he said, "should be viewed as the last remaining legal means of committing suicide. I personally see it as a form of group vigilantism."
The e-mail prompted officials to order Sousa to undergo a fitness-for-duty evaluation. After taking various forms of paid and unpaid leave, and having two hearings on his fitness to return to work, Sousa was fired for two instances of unauthorized absences.
He filed suit under 42 U.S.C. §1983, claiming several acts of retaliation for exercising his First Amendment rights.
U.S. District Judge Janet C. Hall of the District of Connecticut in 2007 granted the defendants' motion to dismiss on all claims. On the retaliation claim, Judge Hall ruled that Sousa had been merely speaking about employment grievances, not matters of public concern.
The 2nd Circuit reversed.
Writing for the panel, Judge Cabranes explained that, if a court finds that an employee/plaintiff did not speak as a citizen or did not speak on a matter of public concern, the employee does not have a First Amendment cause of action based on his employer's response to his speech.
He cited the U.S. Supreme Court in Connick v. Myers, 461 U.S. 138 (1983), which stated that a matter of public concern is one that relates to "any matter of political, social, or other concern to the community."
He said the Connick decision "supported, among other things, the proposition that a speaker's motive was not dispositive in determining whether his or her speech addressed 'a matter of public concern.'"
LACK OF CLARITY
Judge Cabranes then explained the lack of clarity in the 2nd Circuit's case law.
In Lewis v. Cowen, 165 F.3d 154 (1999), the circuit suggested that the speaker's motive was critical, Cabranes said, but in Cioffi v. Averill Park Central School District Board of Education, 44 F.3d 158 (2006), "we held that motive is not dispositive in making this determination."
Cioffi, he said, was "echoed and expanded" in the case of Senior Assistant District Attorney Robert Reuland. Reuland, pushing a book he had written about being a Brooklyn prosecutor, told New York magazine that "Brooklyn is the best place to be a homicide prosecutor" because the borough has "more dead bodies per square inch than anyplace else."
A divided panel held that "the speaker's motive, while one factor that may be considered, is not dispositive as to whether his speech addressed a matter of public concern."
Even though the jury at trial determined that Reuland was not motivated to speak on a matter of public concern, he was talking about something that was indeed a matter of public concern -- the murder rate in Brooklyn.
The 2nd Circuit upheld a jury verdict directing District Attorney Charles J. Hynes to pay a $30,000 fine for demoting Reuland.
The problem, Judge Cabranes said, was that a recent holding suggested a different standard on motive, Ruotolo v. City of New York, 514 F.3d 184 (2008), further adding to the confusion.
So the court was taking the opportunity of Sousa's case to reaffirm the holding of Reuland as the state of the law in the 2nd Circuit: A speaker's motive is not dispositive.
The circuit went on to rule that the lower court was wrong to find Sousa's speech did not address a matter of public concern because he was motivated by employment grievances.
John R. Williams of New Haven, Conn., represented Sousa.
Assistant Attorney General Clare E. Kindall represented the state of Connecticut.
