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In two recent decisions, the Connecticut Supreme Court reversed
substantial plaintiffs' judgments on First Amendment
retaliation claims under Conn. Gen. Stat. § 31-51q, limiting
the scope of that statute. The cases are Schumann v. Dianon Sys.,
Inc. and Perez-Dickson v. City of Bridgeport.
In Schumann, the defendant, Dianon Systems, Inc., is a medical
testing laboratory that performs diagnostic tests of biological
samples. The plaintiff, G. Berry Schumann, worked for Dianon as a
pathologist. When Dianon's executive medical director
introduced a new diagnostic product, Schumann expressed his
disapproval of the product based on a lack of clinical research
supporting it. At the same time, when the executive medical
director introduced a new set of diagnostic terms to be used,
Schumann objected that the new terms could confuse physicians and
harm patients. Several months later, Dianon terminated
Schumann's employment.
Schumann sued Dianon, alleging a violation of Section 31-51q.
That statute prohibits public and private Connecticut employers
from "subject[ing] 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." After a
trial, the trial court rendered judgment for Schumann in the amount
of $10,136,015.
On appeal, the Connecticut Supreme Court reversed the trial
court's judgment, holding that Schumann's speech was not
entitled to First Amendment protection because it was made in the
course of his employment duties for Dianon. In reaching that
decision, the court applied the United States Supreme Court's
decision in Garcetti v. Ceballos. Garcetti held that, when public
employees make statements pursuant to their official duties, they
are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their speech from employer
discipline. In Schumann, the Connecticut Supreme Court held that
Garcetti applies to private employees suing under Section 31-51q.
The court explained that Garcetti adds a threshold layer of
analysis, requiring courts to first determine whether an employee
is speaking pursuant to his official duties before conducting the
remaining First Amendment analysis as to whether the employee was
speaking on a matter of public concern. In conducting the Garcetti
analysis, the key inquiry is whether the speech activity is of the
type that the employee is paid to do, and the ultimate question is
whether the employee speaks as a citizen or as an employee. The
court concluded that, since Schumann's speech was pursuant to
his official job duties, he was speaking as an employee, not as a
citizen, and Garcetti barred his claim.
In Perez-Dickson, decided the same day as Schumann, the
Connecticut Supreme Court reversed another substantial judgment in
the plaintiff's favor. Unlike the plaintiff in Schumann, the
plaintiff in Perez-Dickson was a public employee. Carmen
Perez-Dickson was a public school principal, and she alleged that
the City of Bridgeport had disciplined her for exercising her
rights under the First Amendment – in particular,
reporting teachers' alleged abuse of students. The court held
that Garcetti barred Perez-Dickson's Section 31-51q claim
because she had made the reports of alleged abuse pursuant to her
official job duties.
In both Schumann and Perez-Dickson, the court declined to
address the plaintiffs' arguments that the Connecticut
constitution affords broader free speech rights than the federal
constitution because neither plaintiff had raised this argument in
the trial court.
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