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3.14-7 Wrongful Termination in Violation of General Statutes § 31-51q – Freedom of Speech

New June 1, 2012

In this case, the plaintiff claims that (he/she) was discharged by the defendant in violation of a Connecticut statute, section 31-51q. The statute prohibits an employer from disciplining or discharging an employee on account of the employee’s exercise of rights guaranteed by the First Amendment to the United States Constitution or sections 3, 4 or 14 of article first of the constitution of Connecticut, 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. The First Amendment to the United States Constitution and section 4 of article first of the constitution of Connecticut both protect freedom of speech, in addition to other rights which are not relevant to this case.

Under Connecticut law, the plaintiff must establish that the speech for which (his/her) employment was allegedly terminated was made by (him/her) as a private citizen and not as part of (his/her) job duties. Even if you find that the plaintiff’s speech was made as a private citizen and not as part of (his/her) job duties1, it is not enough if the plaintiff complained about purely private matters, such as the terms and conditions of (his/her) employment. Instead, the plaintiff must have intended to speak on a broader issue of public concern. The issue you must then resolve is whether the plaintiff was speaking out on a public issue, or whether by so speaking (he/she) was instead attempting to resolve a private dispute regarding the terms and conditions of (his/her) own employment. In short, the plaintiff’s comments are not protected under § 31-51q if they were only directed at issues concerning (himself/herself) and (his/her) employer.

The plaintiff claims that (his/her) <describe speech> raised a public issue regarding <state issue>2. The defendant denies that the plaintiff raised an issue of public concern. If you do find that the plaintiff has raised an issue of public concern, you will continue your deliberations concerning the other elements the plaintiff must prove because you have found that the plaintiff was exercising (his/her) constitutional rights when (he/she) spoke. If you do not find that the plaintiff raised an issue of public concern then you must end your deliberations with respect to this claim and enter a verdict in favor of the defendant because you have found that the plaintiff was not exercising (his/her) constitutional rights when (he/she) spoke.

In order to determine whether the defendant violated § 31-51q, the plaintiff must also prove to you that the exercise of a constitutional right was a “substantial” or “motivating” factor in (his/her) discharge. If you do find that a substantial or motivating factor in the plaintiff’s discharge was the exercise of (his/her) constitutionally protected first amendment rights, you will continue your deliberations on this claim. If you do not find that a substantial or motivating factor in the plaintiff’s discharge was the exercise of (his/her) constitutionally protected first amendment rights, you must find in favor of the defendant. Thus, if you find that the plaintiff would have been discharged even if (he/she) did not exercise (his/her) constitutional rights, you must find for the defendant. This is so even if you disagree with the action that was taken against the plaintiff or otherwise feel that it was inappropriate. Thus, if you find that the defendant discharged the plaintiff because the defendant believed, in good faith, that the plaintiff’s job performance merited such action, you must find for the defendant, regardless of whether you would have terminated the plaintiff’s employment if you were in the defendant’s shoes.

Even if you should find that the plaintiff was discharged because of (his/her) exercise of a constitutionally protected right, your inquiry cannot end there. In order to find for the plaintiff, you must also find:

  1. that the exercise of such constitutional rights did not substantially or materially interfere with (his/her) bona fide job performance, and
  2. that the exercise of such constitutional rights did not substantially or materially interfere with the working relationship between the plaintiff and the defendant.

If you find that the exercise of such constitutional rights did not substantially or materially interfere with the plaintiff’s job performance or with (his/her) working relationship with the defendant, and that the exercise of those constitutional rights was a “substantial” or “motivating” factor in (his/her) discharge, then you will find in favor of the plaintiff. If you find that the exercise of such constitutional rights did substantially or materially interfere with the plaintiff’s job performance or with (his/her) working relationship with the defendant, then even if the exercise of such rights was a “substantial” or “motivating” factor in (his/her) discharge, you will find in favor of the defendant.

In determining whether or not the exercise of such rights substantially or materially interfered with the working relationship between the plaintiff and the defendant, you may consider the content and tone of the plaintiff’s speech.
 

1 If there is an issue of whether the speech was made as part of the plaintiff’s job duties, the court may need to charge on how the jury is to determine that issue. Although the Supreme Court in Garcetti stated that it did not have occasion to “articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate,” it did note that “[t]he the proper inquiry is a practical one.” Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).

2 The issue of whether the plaintiff’s speech raised an issue of public concern may be resolved by summary judgment, and the charge would be modified to provide that the court has already determined that if the jury finds that the plaintiff’s speech addressed that subject, it was a matter of public concern.

Authority

General Statutes § 31-51q; Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006); Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012); Cotto v. United Technologies Corp., 251 Conn. 1 (1999); Daley v. Aetna Life & Casualty Co., 249 Conn. 766 (1999).

Notes

This charge is only applicable to a violation of § 31-51q based on freedom of speech under the First Amendment to the United States Constitution and section 4 of article first of the constitution of Connecticut. It should not be used for violations based on freedom of religion or freedom of assembly pursuant to the First Amendment to the United States Constitution and sections 3 and 14 of article first of the constitution of Connecticut.


 

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