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A state worker with the Office of Children and Family Services who was allegedly fired for criticizing the office did not have to show that her speech was chilled in making a claim for retaliation, a federal appeals court has ruled. The 2nd U.S. Circuit Court of Appeals reversed a lower court that had dismissed Joan Morrison’s claims on the grounds that she had neither pleaded nor shown that she was disciplined by her superiors to punish her for speaking out and that the discipline forced her into silence. The circuit said that Northern District Judge Lawrence E. Kahn applied an erroneous standard in Morrison v. Johnson, 05-1369-cv, and it reinstated Morrison’s claim against several state officials. Morrison had made complaints about the Office of Children and Family Services (OCFS) to the state’s Office of the Welfare Inspector General and members of the state Legislature. Morrison also had spoken with a newspaper reporter, she said, and the reporter had published an article describing her claims about problems at the agency without identifying her as a source. Morrison’s suit in the Northern District alleged that her employers conspired to retaliate against her for these complaints by disciplining her, and then firing her on the pretext she violated OCFS policy by misusing her position. The defendants moved for summary judgment, saying Morrison had not shown any chilling effect on speech, there was no causal connection between her protected conduct and the discipline imposed on her, and Morrison could not show that she would not have been disciplined in any event. Kahn cited Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001), where the court said that in order for the plaintiff to prevail on a First Amendment claim, she had to show she had an interest protected by the First Amendment, the defendants’ “actions were motivated or substantially caused by her exercise of that right” and their actions “effectively chilled the exercise” of her First Amendment right. Morrison, Kahn found, had failed to “present the Court with even one specific example of a situation in which she desired to exercise her First Amendment rights but was chilled by Defendants’ alleged actions.” One factor in the judge’s opinion was that Morrison continued to speak with the Inspector General’s Office, members of the Legislature and the reporter even after she had been disciplined. A circuit panel of Amalya Kearse, Roger Miner and Peter Hall decided the appeal. The key difference between this case and Curley, they said in an unsigned opinion, was that Curley was not a public employee. Rather, he was a private citizen who claimed that, in retaliation for criticisms of the mayor and police chief he aired during an unsuccessful campaign for village mayor, he was arrested following a barroom brawl. The circuit in Curley said that, in order for him to prevail on that free speech claim, he had to show his First Amendment rights were “actually chilled.” PUBLIC EMPLOYEE PLAINTIFF But in Morrison, the panel said Curley does not apply where “the plaintiff is a public employee alleging that he suffered an adverse employment action as retaliation for the exercise of his First Amendment rights. … “Although we have indicated that a public employee plaintiff may be required to show that the adverse action is of the type that, objectively, ‘would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights’ … in no case have we held that a public employee plaintiff is required to show that the defendants’ action had an actual chilling effect.” James A. Resila of Carter, Conboy, Case, Blackmore, Maloney & Laird represented Morrison. Assistant Solicitors General Jennifer Grace Miller and Andrea Oser represented the state.

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