Second Circuit Affirms District Court in Employee “Speech of Public Concern” Case

The U. S. Second Circuit has affirmed a lower court’s ruling that in the case of an attorney who claimed that his demotion and later firing for a statement made in the course of an interview to New York magazine, “the speaker’s motive is not dispositive in determining whether speech is on a matter of public concern….that [the employer] has waived the issue of disruption by agreeing not the include it in the jury charge…[and that the employer] cannot benefit from qualified immunity because it would not have been objectively reasonable for him to believe the speech was unprotected and the jury found that he acted with improper retaliatory motive.”

Robert Reuland, a Brooklyn district attorney and budding novelist, had given an interview to New York magazine, during the course of which he stated, “Brooklyn is the best place to be a homicide prosecutor” because “[w]e’ve got more dead bodies per square inch than anyplace else.” “On February 22, 2001, after the article was published, Reuland met with First Assistant District Attorney Amy Feinstein, who told him that prominent politicians were outraged over his description of Brooklyn in the article. Reuland explained that he did not mean the statement to be literally true and was merely trying to explain why he enjoyed his job. He offered to write a letter to the editor explaining his remark. Feinstein and Assistant District Attorney Barry Schreiber edited Reuland’s draft letter, and Hynes approved it. The letter explained that while the quote was correct: [T]his was not intended to be, nor is it, literally true. In fact Brooklyn’s murder rate has declined more that 66 percent during the past decade. Even with the remarkable reduction, the loss of life remains high and still keeps a homicide prosecutor busy–the point of my hyperbolic remark. The letter was published in the April 2, 2001 issue….On March 9, 2001, Reuland met with Hynes, who told him that his remarks were hurtful, because, as District Attorney, Hynes had actually reduced the crime rate. Reuland explained that from his perspective…there was still a great deal of work to be done….Hynes was not satisfied with this explanation and accused Reuland of lying to him and seeking the promotion to the Homicide Bureau simply to sell books. Hynes told Reuland he could either accept transfer to the Orange Zone…or quit. Ultimately, Reuland accepted the demotion. Reuland did not receive positive reviews…while in the Orange Zone. On July 16, 2001, Reuland wrote to Feinstein to request transfer back….Feinstein denied this request…told Reuland she expected his resignation by the end of the day. Reuland sent her his resignation.

“After his termination, Reuland filed suit…claiming adverse employment actions in retaliation for his exercise of his First Amendment right to freedom of speech. Hynes moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and on the basis of qualified immunity…..

“A jury trial was held, at which Hynes testified that he met with Reuland after the New York magazine statement was published because he wanted to know why Reuland would say something that was not supported by statistics. Hynes also testified that he decided to demote Reuland during this meeting because he believed Reuland lied to him….Hynes did not express any concern that, because Reuland’s statement…had been untrue, Reuland’s credibility would be destroyed and he would no longer be able to function effectively as a prosecutor, as Hynes now contends.

…

“The jury found that Reuland’s statement…was a motivating factor in Hynes’s decision to demote him, and that, absent this motivation, Reuland would not have been demoted anyway, because Hynes believed Reuland had lied to him. However, the found that the statement was not a motivating factor in Reuland’s termination. The jury also found that, in making the statement, Reuland was not motivated by a desire to address a matter of public concern. On the issue of damages, the jury awarded $30,000 for Reuland’s demotion and declined to award punitive damages.

“Both Reuland and Hynes sought entry of judgment in their favor based on the jury’s findings of fact. Judge Gleeson held that the jury’s finding regarding Reuland’s motive was not dispositive….He further held that the jury’s finding regarding Hynes’s motivation precluded Hynes from showing that the reason for the demotion was disruption, and from demonstrating he was entitled to qualified immunity….Therefore, he entered judgment in favor of Reuland….”

The Second Circuit first discussed Reuland’s claim that his speech was protected under the First Amendment. “Because Reuland’s statement was…hyperbole, to demonstrate that it is not entitled to First Amendment protection Hynes would have to show that the statement (1) would reasonable have been perceived as an assertion of fact, (2) was false, and (3) was made with knowledge or reckless disregard of its falsity….He has not done so. ” With regard to analysis of Reuland’s claim that he was dismissed for exercising his free speech rights, the court said, “[t]o determine whether an employee’s speech rights have been violated by an adverse employment action, we first apply a two-part test….First, the court determines, as a matter of law, whether the speech relates to a matter of public concern…If so, the adverse action nevertheless does not violate the employee’s rights “if the employee’s speech is reasonably likely to disrupt the effective functioning of the office, and the employee is fired to prevent this disruption.” To prevail…the government must show [under Pickering] that the employee’s interest in free speech is outweighed by the employer’s interest in avoiding disruption….

“A third aspect…deals with causation.  Initially…the employee must show that the speech was a substantial or motivating factor in the adverse action…The burden then shifts to the government to show that “it would have undertaken the same adverse employment action even absent the protected speech.” …Finally…”the employee may still carry the day if he can show that the employer’s motivation…was retalilation for the speech itself, rather than for any resulting disruption.”

“We first address whether Reuland’s statement…constituted a matter of public concern….We hold that the speaker’s motive…is not dispositive….[A]lthough Reuland’s statement does not fit into the citizen-employee distinction discussed in Connick and NTEU, we cannot conclude the fact that his motivation to sell books means his speech does not address a matter of public concern….We join the majority of circuits in finding that the speaker’s motive is not dispositive as to whether an employee’s speech relates to a matter of public concern. Therefore, the jury’s finding that Reuland was not motivated by a desire to address a matter of public concern does not resolve the issue….Reuland’s statement addressed the crime rate in Brooklyn. We have previously held that crime rates are inherently a matter of public concern….”

With regard to the Pickering balance, the court said, “Hynes argues on appeal that he demoted Reuland because Reuland’s hyperbolic statement made him untrustworthy…Hynes further contends that this disruption of the effectiveness of the district attorney’s office outweighed Reuland’s interest in the speech….Although this argument is not without merit, we hold that Hynes has waived the issue…by agreeing not to submit the underlying facts of his disruption claim to the jury.”

On the qualified immunity question, the court said, “[w]e address whether it was objectively reasonable for Hynes to believe Reuland’s statement to New York magazine was not a matter of public concern, either because it was false or because Reuland’s motive in making the statement was to sell books. In finding that hyperbolic speech is protected by the First Amendment, we rely on well-established precedent from the Supreme Court….Therefore, it would not have been reasonable for Hynes to believe that Reuland’s statement was not protected because it was untrue….Although it would have been reasonable for Hynes to believe that Reuland’s motive would be relevant in determining whether his statement is a matter of public concern, this is not enought. Connick’s command to consider the “content, form, and context” of the speech, as well as the Supreme Court’s application of that test, would have suggested to any objectively reasonable government official that the speaker’s motive is not dispositive….NTEU also suggested that a financial motive does not mean speech is not a matter of public concern….Finally, the fact that nearly every circuit…has found motive is not dispositive should have alerted Hynes that it would not be reasonable to assume otherwise….Next, we consider whether it would have been objectively reasonable for Hynes to believe that he could prevail on the Pickering balance. Because even if the disruption outweighed the employee’s speech interest, “the employee may still carry the day…”, Hynes would be entitled to qualified immunity on this basis only if a finder of fact determined that he had no retaliatory motive. Hynes has waived this issue….Therefore he cannot now claim qualified immunity.

“Accordingly…we affirm the district court’s entry of judgment in favor of Reuland.”

The case is Reuland v. Hynes, Docket no. 04-5521-cv, U. S. C. A. (2d. Cir., Aug. 21, 2006).

Read the entire opinion here.