National Litigation Hotline

Second Circuit Deems Retaliation by State Authority Against Those Who Speak Out

Resolving a split among the district courts in the circuit, the Second Circuit has found that “any use of state authority to retaliate against those who speak out against discrimination suffered by others, including witnesses or potential witnesses in proceedings addressing discrimination claims, can give rise to a cause of action under 42 U.S.C. ' 1983 and the First Amendment.” Konits v. Valley Stream Central High School District, 2005 WL 31397 (2nd Cir. (N.Y.)).

In 1996, Carol Konits, a tenured music teacher in the Valley Stream Central High School District (the District) filed a lawsuit against the District, the Board of Education, and several school administrators claiming that she had endured adverse personnel actions in retaliation for assisting a custodial employee, Marie Kenny, with her gender discrimination in employment action against the District. Konit's assistance to Kenny included helping her to file internal complaints with the District, referring Kenny to her sister, a licensed attorney, who then represented Kenny in both her EEOC grievance and her federal lawsuit against the District, and appearing as a witness in Kenny's federal action. Konits alleged that this assistance caused the defendants to retaliate against her by removing her from her position as orchestra teacher and conductor, by requiring that she work as the general music teacher in the special education department, and by withholding her seniority rights. Konits' 1996 lawsuit was eventually settled at trial in July of 1999.

In response to what Konits perceived as continued adverse treatment by the defendants after the settlement, she filed a First Amendment retaliation claim against the same defendants, plus two additional administrators. In granting defendants' motion for summary judgment, the district court found that because Konits' 1996 lawsuit could not be considered “speech on a matter of public concern,” Konits could not sustain her retaliation claim. Konits appealed the district court's dismissal of her First Amendment claim to the Second Circuit.

In reversing the district court's grant of summary judgment and resolving a split among the district courts of the Second Circuit, this court found that Konits' 1996 lawsuit “was predicated on speech about gender discrimination against a fellow employee that directly implicated the access of the courts to truthful testimony,” and thus “'had [the] broader public purpose' of assisting Kenny to redress Kenny's claims of gender discrimination.” In making this determination, the Second Circuit cited a series of prior cases in which it had repeatedly asserted that a public employee's speech regarding discrimination in the workplace constitutes speech as a matter of public concern, and that this designation is all the more applicable where the employee's speech was made in pursuit of accessing justice in a discrimination suit. Therefore, since Kondits' 1996 lawsuit against the District did not “'center[] around issues solely related to [her] personal dissatisfaction with the terms and conditions of her employment,'” as the district court had found, the action should have been deemed a matter of public concern capable of supporting a First Amendment retaliation claim. After vacating the district court's holding, the Second Circuit remanded the suit to the district court for a determination as to whether Kondit could sustain the two other components of a First Amendment retaliation claim: that she had suffered an adverse employment action and that a causal connection existed between the speech and the adverse employment action.

Second Circuit Deems Retaliation by State Authority Against Those Who Speak Out

Resolving a split among the district courts in the circuit, the Second Circuit has found that “any use of state authority to retaliate against those who speak out against discrimination suffered by others, including witnesses or potential witnesses in proceedings addressing discrimination claims, can give rise to a cause of action under 42 U.S.C. ' 1983 and the First Amendment.” Konits v. Valley Stream Central High School District, 2005 WL 31397 (2nd Cir. (N.Y.)).

In 1996, Carol Konits, a tenured music teacher in the Valley Stream Central High School District (the District) filed a lawsuit against the District, the Board of Education, and several school administrators claiming that she had endured adverse personnel actions in retaliation for assisting a custodial employee, Marie Kenny, with her gender discrimination in employment action against the District. Konit's assistance to Kenny included helping her to file internal complaints with the District, referring Kenny to her sister, a licensed attorney, who then represented Kenny in both her EEOC grievance and her federal lawsuit against the District, and appearing as a witness in Kenny's federal action. Konits alleged that this assistance caused the defendants to retaliate against her by removing her from her position as orchestra teacher and conductor, by requiring that she work as the general music teacher in the special education department, and by withholding her seniority rights. Konits' 1996 lawsuit was eventually settled at trial in July of 1999.

In response to what Konits perceived as continued adverse treatment by the defendants after the settlement, she filed a First Amendment retaliation claim against the same defendants, plus two additional administrators. In granting defendants' motion for summary judgment, the district court found that because Konits' 1996 lawsuit could not be considered “speech on a matter of public concern,” Konits could not sustain her retaliation claim. Konits appealed the district court's dismissal of her First Amendment claim to the Second Circuit.

In reversing the district court's grant of summary judgment and resolving a split among the district courts of the Second Circuit, this court found that Konits' 1996 lawsuit “was predicated on speech about gender discrimination against a fellow employee that directly implicated the access of the courts to truthful testimony,” and thus “'had [the] broader public purpose' of assisting Kenny to redress Kenny's claims of gender discrimination.” In making this determination, the Second Circuit cited a series of prior cases in which it had repeatedly asserted that a public employee's speech regarding discrimination in the workplace constitutes speech as a matter of public concern, and that this designation is all the more applicable where the employee's speech was made in pursuit of accessing justice in a discrimination suit. Therefore, since Kondits' 1996 lawsuit against the District did not “'center[] around issues solely related to [her] personal dissatisfaction with the terms and conditions of her employment,'” as the district court had found, the action should have been deemed a matter of public concern capable of supporting a First Amendment retaliation claim. After vacating the district court's holding, the Second Circuit remanded the suit to the district court for a determination as to whether Kondit could sustain the two other components of a First Amendment retaliation claim: that she had suffered an adverse employment action and that a causal connection existed between the speech and the adverse employment action.