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.