Second Circuit Vacates Discmissal of Teacher’s First Amendment Retaliation Claim

In Nagle v. Marron et al. (decided Dec. 12, 2011), the Second Circuit vacated a district court’s grant of summary judgment against a schoolteacher (Nancy Nagle) who alleged, under 42 U.S.C. 1983, that she was denied tenure and terminated in retaliation for exercising her First Amendment rights – namely, reporting a fellow teacher for abusing students four years prior in Virginia.

The trial court held that her report of abuse lost First Amendment protection because it “undisputedly violated reasonable protocols.”  This was error, held the Second Circuit, because neither it nor the Supreme Court “has never conditioned First Amendment protection on adherence to employer protocols.”

It was also error for the district court to separately determine whether the abuse report was “protected when originally uttered” in Virginia and whether it “remained protected after the passage of time and [Nagle’s] relocation to” New York, and to conclude that even if Nagle’s Virginia speech had been protected when made, it had become “old news” and deprived of First Amendment protection in New York.  Rather, “[w]hether speech pertained to a matter of public concern and whether it was uttered in the speaker’s capacity as a private person are not facts that change over time.”  The district court also improperly conflated the analytically distinct issues of (1) whether the speech was protected and (2) whether the protected speech caused the adverse employment action.

In addition, questions of fact – relating to, for example, whether defendants were justified in terminating plaintiff because they questioned her judgment and whether defendants would have taken the same adverse action notwithstanding plaintiff’s protected speech -were incapable of resolution on summary judgment.

Moreover, neither the principal nor the superintendent were entitled to qualified immunity.  That defense “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Here, qualified immunity did not apply because “no reasonable official could think that such speech-retaliatory conduct was constitutionally permissible based simply on the passage of time” and therefore the principal and superintendent “had no reason to think that speech protected in Virginia in 2004 would not be protected in New York in 2007″.

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