KeywordsConstitutional Law, Freedom of speech and press. Public Employment, Termination. Practice, Civil, Summary judgment

The Appeals Court here affirmed the Superior Court motion judge’s dismissal of his summary judgment motion in his Federal civil rights claim against the former Secretary of the Department of Elder Affairs personally and his claim under the Massachusetts public employee whistleblower statute against EOEA for speaking out publicly about elder endangerment in assisted living residences. The Appeals Court’s review is de novo in order to determine whether all material facts have been established and the moving party is entitled to judgment as matter of law. “The threshold inquiry for the court is whether the employee spoke ‘as a citizen upon matters of public concern.’  Connick v. Myers, 461 U.S. 138, 147 (1983).  If the court reaches that conclusion, the court next balances the interest of the employee speaking out as a citizen on matters of public concern and “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. . . . The third step requires the employee to proffer sufficient evidence that would permit a reasonable jury to find that the protected speech was ‘a substantial or motivating factor behind the adverse employment action.’  Guilloty Perez v. Pierluisi, 339 F.3d 43, 55 (1st Cir. 2003).  If the employee satisfies that initial burden, the burden of persuasion shifts to the employer to prove, by a preponderance of the evidence, that it would have taken the same action regardless of the protected speech.  See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (Mt. Healthy defense).  This showing by an employer defeats the employee’s § 1983 claim.  See Decotiis, 635 F.3d at 30.  The first two parts of the analysis are questions of law that are subject to de novo review.

Of interest, the Court also concurred with the lower court’s conclusion that “even if there are material facts in dispute with regard to causation, the [individual defendant] was entitled to qualified immunity as matter of law.”

Click here for the full text of the Appeals Court’s decision.




Leave a Comment