Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in News
Oct 28 2015
Joshua R. Goodbaum, The Connecticut Law Tribune
The new chief of critical care at a small, cash-strapped Connecticut hospital discovers that some of her intensive-care unit’s mechanical ventilators (basically, the machines that help patients breathe) are in danger of malfunctioning. With lives at risk, the chief immediately calls her boss, the hospital’s chief medical officer. “We need to fix these machines,” she says. “Stat! If you don’t get them fixed now, I’ll have to start transferring patients to other hospitals.”
“You’re not the first person to tell me about this, unfortunately,” her boss replies. “But we simply don’t have the money right now. Let’s just hope for the best.” The next day, without warning, the chief is invited to a meeting with her boss and the hospital’s head of human resources. She is told that her leadership style is too brusque; reminded of the confidentiality clause in her at-will employment contract; and politely shown the door.
Can our hero sue the hospital under Connecticut’s free speech retaliation statute, Connecticut General Statutes §31-51q, which bars employers from imposing “discipline or discharge” on their employees because of the employees’ “exercise” of “rights guaranteed” by the First Amendment to the U.S. Constitution or a corollary provision of the Connecticut Constitution that protects free speech?
You would be forgiven for thinking that the answer must be an unequivocal “yes.” If any speech is deserving of protection, you might think, surely it is speech meant to save lives. But for the past 10 years or so, the answer has been, “Maybe not.” That is because the U.S. Supreme Court, in the 2006 case of Garcetti v. Ceballos, held that employee speech “pursuant to [the employee’s] official duties” is not protected by the First Amendment and therefore “not insulate[d] … from employer discipline.” In other words, if it’s your job to say it, your employer can punish you for it.
But what if it’s your job to speak about, say, the ventilators in your ICU?
That question (and dozens of similar hypotheticals) surely resonated with the justices of the Connecticut Supreme Court, who in early October issued an opinion refusing an employer’s invitation to apply Garcetti wholesale to the interpretation of the Connecticut Constitution.
The case, Trusz v. UBS Realty Investors, involved a real estate valuation specialist, Richard Trusz, who was allegedly fired from his job at UBS financial services in Hartford because he complained to his bosses that UBS had (in a variety of ways) breached its fiduciary, legal and ethical duties to its investment clients. The question presented to the Supreme Court (on certification from a federal district court) was whether the rule announced in Garcetti—that speech made “pursuant to [an employee’s] official duties” is not protected by the First Amendment—applies to a claim under § 31-51q, which incorporates not only the First Amendment, but also the Connecticut Constitution?
The Supreme Court, in a unanimous opinion by Justice Richard Palmer, said it did not. Rather, the court held, under the Connecticut Constitution, an employee’s workplace speech pursuant to her official duties is insulated from employer discipline in certain circumstances. To warrant protection, the speech must satisfy two tests. First, it must concern “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety.” And second, the public value of the speech must “outweigh the employer’s legitimate interests in workplace discipline, order and efficiency.” If the speech passes both tests, then it is protected by Connecticut law, meaning it can form the basis for a wrongful discharge or discipline claim. This approach represented an explicit adoption of the reasoning of U.S. Supreme Court Justice David Souter’s dissent in Garcetti.
As another member of the Garcetti dissent, Justice John Paul Stevens, explained, and the Trusz court self-consciously repeated, “the proper answer to the question ‘whether the Constitution protects [an] employee from discipline based on speech made pursuant to the employee’s official duties’ is ‘sometimes,’ not ‘never.’”
What does Trusz mean for employment lawyers? The answer probably depends on whom you ask. In my view, the answer is simultaneously “perhaps not very much” and “probably quite a lot.”
As to my first answer, the impact of the Connecticut Supreme Court’s rejection of Garcetti was pre-emptively blunted by a recent (but largely overlooked) opinion from the U.S. Supreme Court, Lane v. Franks. In that 2014 case, which involved retaliation for an employee’s trial testimony about workplace crimes, the court imposed two important limitations on Garcetti. First, the court explained that speech loses protection under Garcetti only when it is pursuant to an employee’s “ordinary job duties.” (The term “ordinary” appeared nowhere in Garcetti itself.) Second, Lane clarified that Garcetti does not apply merely because the subject of the employee’s speech was learned in the workplace. The impact of these two changes remains to be seen.
However, turning to my second answer above, the impact of Lane on Garcetti will be mostly irrelevant in Connecticut, since Trusz essentially neutralizes Garcetti in our state. The Connecticut Constitution now protects more employee speech than the federal Constitution does, and free speech retaliation claims can be premised on the Connecticut Constitution alone. So long as plaintiff-side employment lawyers are careful to plead that their §31-51q claims rely on the Connecticut Constitution, rather than the federal First Amendment, Garcetti will not limit the protections enjoyed by Connecticut’s employees. That, in and of itself, is a big deal.
Now, employment lawyers who represent management would surely argue that the shift from the Garcetti rule to the Trusz standard—or, to crib Justice Stevens, from “never” to “sometimes”—will bring nothing but trouble. It will undermine predictability, they would say, by requiring employers to evaluate the import of employee speech to determine whether they can control it; and it will require courts to balance the value of that speech against “the employer’s legitimate interests in workplace discipline, order and efficiency.” A simple rule such as that stated in Garcetti, they would suggest, beats a complicated standard any day of the week.
But the “sometimes” standard of Trusz is not nearly the floodgate-opener that my friends in the defense bar might think. For one thing, Garcetti already involves a complicated fact-based inquiry of its own: into the scope of the plaintiff’s so-called official duties. Yet, as the Connecticut Supreme Court astutely observed, Garcetti “did not provide any clear guidance” on what that phrase means, thus obscuring the “purported bright line” that Garcetti sought to establish.
More important, though, the text of § 31-51q already embraces precisely the sort of balancing that Trusz invites, by providing that speech is not protected if it “substantially or materially interfere[s] with the employee’s bona fide job performance or the working relationship between the employee and the employer.” Trusz simply broadens that statutory standard to a slightly wider category of employee speech.