In May, the Connecticut Supreme Court agreed to hear a case that will decide whether employees in Connecticut can be disciplined or discharged for engaging in certain speech in the workplace. That has become an unsettled issue in Connecticut in recent years, since a 2006 U.S. Supreme Court ruling limited the rights of employees under the First Amendment.
A majority of Connecticut courts have decided that the U.S. Supreme Court’s ruling does not control the rights of employees under Connecticut law because a state statute, and the Connecticut Constitution, afford employees greater rights to speak than the First Amendment. The Connecticut Supreme Court will now decide the issue, which is of great importance to both employees, and employers, throughout the state.
Connecticut General Statutes § 31-51q prohibits “any employer” from subjecting “any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the First Amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.” C.G.S. § 31-51q (emphasis added).
“On its face, the statute extends the protection of federal and state constitutional rights in two respects. It provides coverage for private employees as well as for governmental employees, and it imposes liability on private employers as well as governmental employers.” Cotto v. United Technologies Corp., 251 Conn. 1, 6 (1999).
Before 2006, claims under the First Amendment and C.G.S. § 31-51q were analyzed under standards established by the U.S. Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). Those rulings stated that an employee’s right to speak as a citizen on matters of public concern should be weighed against the employer’s interest in the efficiency of its operations and the disruption caused by the employee’s speech.
Under those standards, Connecticut courts consistently held that C.G.S. § 31-51q protected speech by employees opposing illegal acts at the workplace. For example, in Andersen v. E&J Gallo Winery, 1985 WL 134 (D. Conn. Nov. 7, 1985), the court ruled that an employee who complained about the “employer’s allegedly illegal business practices” was protected. Meanwhile, in Vince v. Worrell, 1992 WL 172135 *14 (Conn. Super. July 14, 1992), an employee of an alcohol and drug addiction rehabilitation hospital was deemed to be protected by state law when she reported sexual abuse of patients by her supervisor.
In Lowe v. AmeriGas Inc., 52 F. Supp. 2d 349, 359 (D. Conn. 1999), a plaintiff was protected under state law when he complained “about safety concerns regarding the improper storage of a hazardous substance.” In Burrell v. Yale University, 2004 WL 1155350 (Conn. Super. 2004), faculty members and radiologists were protected when they raised concerns about systemic medical malpractice and Medicare fraud.
In 2006, however, the U.S. Supreme Court narrowed the protection of employees under the First Amendment. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the court ruled “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Federal courts, including the U.S. Court of Appeals for the Second Circuit, have expansively interpreted the meaning of “official duties” to substantially narrow the scope of employee speech protected under the First Amendment.
In the 2010 case of Barclay v. Michalsky, for example, the Second Circuit decided that a nurse who complained about patient mistreatment and abuse was not protected. In another 2010 case, Foley v. Town of Randolph, the First Circuit ruled that a fire chief was not protected when he commented that the department was underfunded and inadequately staffed, and that the response to a deadly fire that claimed the lives of two children would have been better if more resources were available. And in the Seventh Circuit, in the 2007 case of Spiegla v. Hull, the court ruled that a corrections officer complaining about a breach in prison security is not protected.
These cases represent examples of conduct that would have been protected under the pre-Garcetti standards, but which became unprotected after Garcetti because the courts concluded that the employees spoke pursuant to their “official duties.”
In the wake of Garcetti, and federal court decisions interpreting it, some employees have limited their § 31-51q claims to the provisions of the Connecticut Constitution, and argued that Garcetti should not be extended to limit the rights of employees under Connecticut law, as the Connecticut Constitution is more protective of speech than the First Amendment.
In 2012′s Schumann v. Dianon Systems, 304 Conn. 585 (2012), the Connecticut Supreme Court held that Garcetti applies to claims under C.G.S. § 31-51q that are based on the First Amendment, but declined to decide whether Garcetti should be extended to § 31-51q claims based on Connecticut’s Constitution.
Since that decision, a series of Connecticut superior courts, and a Connecticut district court, have refused to extend Garcetti to § 31-51q claims based on the Connecticut Constitution. In Matthews v. Department of Public Safety, 2013 WL 3306435 (Conn. Super. May 31, 2013), the most thorough of those decisions, Judge A. Susan Peck analyzed the factors identified in State v. Linares, 232 Conn. 345 (1995), a case in which the Connecticut Supreme Court held that the provisions of the Connecticut Constitution guaranteeing freedom of speech are broader than the First Amendment:
To determine whether our state constitution affords greater rights than the federal constitution, we consider the following “tools of analysis”: (1) the “textual” approach-consideration of the specific words in the constitution; (2) holdings and dicta of this court and the Appellate Court; (3) federal precedent; (4) the “sibling” approach-examination of other states’ decisions; (5) the “historical” approach-including consideration of the historical constitutional setting and the debates of the framers; and (6) economic and sociological, or public policy, considerations.
As analyzed by Peck, those factors support the conclusion that the Connecticut Constitution is more protective of employee speech than the First Amendment. The “textual approach” emphasized that the language of Article first, § 4, of Connecticut’s Constitution is, according to Peck, “an affirmative grant of free speech to the individual, rather than a limitation on the government’s right to restrict speech as does the First Amendment.”
Peck’s analysis of Connecticut Supreme Court cases focused on the similarities with Linares, which also required the court to decide “whether to disregard the [U.S.] Supreme Court’s most recent approach in favor of its earlier approach. … The fact that the court in Linares chose the more flexible standard supports the notion that Connecticut courts support more flexible standards in determining speech protections than some of the more rigid modern approaches in federal jurisprudence.”
The review of “federal precedent” included analysis of U.S. District Judge Stephan Underhill’s decision in Ozols v. Town of Madison, 2012 WL 3595130 (D. Conn. Aug. 20, 2012). That decision emphasized the more protective language of the Connecticut Constitution, and identified several policy reasons to not extend Garcetti to Connecticut’s Constitution.
When considering the “historical approach,” Peck noted that “the Connecticut Constitution is ‘an instrument of progress,’ and it is ‘intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all citizens.’” Lastly, the court identified several policy reasons to not extend Garcetti to the Connecticut Constitution, including the benefits achieved, in terms of both efficient and effective government, when employees are protected for opposing government waste, fraud or corruption.
The only factor that supported the extension of Garcetti to the Connecticut Constitution was the “sibling approach,” decisions of other state courts, but Peck analyzed each factor to conclude that Connecticut’s Constitution is more protective of employee speech than the First Amendment, and rejected the Garcetti rule.
As a result of Peck’s decision in Matthews, the police officer who allegedly suffered retaliation because he opposed criminal behavior by other officers, and refused to cover up police misconduct, was allowed to proceed with his § 31-51q claim based on the Connecticut Constitution, even after his First Amendment claim relying on the same allegations was dismissed by the Second Circuit because of Garcetti.
On the other side, there is a single decision holding that Garcetti should be applied to C.G.S. § 31-51q claims based on the Connecticut Constitution. Cabrera v. American School for the Deaf, HHDCV126035273S, 2013 WL 1189383 (Conn. Super. Feb. 26, 2013). One court reviewed the cases on both sides, however, and concluded that Peck’s analysis in Matthews, refusing to extend Garcetti, was more persuasive. Cubilla v. Town of Montville, 2014 WL 1565899 (Conn. Super. March 18, 2014).
On May 14, the Connecticut Supreme Court agreed to decide the issue in a certified question presented in the U.S. District Court case of Trusz v. UBS Realty Investors, 3:09-cv-268 (D. Conn.). The Supreme Court will have to decide whether § 31-51q will continue to protect the type of speech that was protected under the pre-Garcettistandards, or whether the Garcettirule should be extended to limit the protection of employees under the Connecticut Constitution as well. •