Same Song, 2nd Verse - Support of Fellow Employee's Gender Claim Is Protected
by Michael Fox
The writers of the recent editiorial in the Las Vegas Review discussed here, One Paper's Opinion - Public Employees Can't Be Fired, would find support for their argument in Friday's decision in Konits v. Valley Stream Central High School District (2nd Cir. 1/7/05) [pdf]. The facts are simple, but the application of the law was not as clear, at least not to the district court judge whose grant of summary judgment was overturned with alacrity.
Konits, a tenured music teacher, filed her first lawsuit against her employer in 1996. The basis of that lawsuit, brought under both Title VII and on her 1st Amendment rights, was that she had been retaliated against for her support of a custodial worker who brought her own discrimination lawsuit against the District. Konits allegedly helped by assisting the employee in filing internal complaints, referring the co-employee to Konits' sister, a lawyer who filed a lawsuit on behalf of the employee, and being listed as a witness in support of her claim. Although the opinion does not say what happened to the custodial worker's suit, Konits was able to defeat summary judgment in her first case, which was settled before trial in 1999.
The second Konits suit, and the subject of Friday's opinion, did not fare as well at the trial court. She alleged that following the settlement she was retaliated against when she was not hired for several band and orchestra positions. Leading to her suspicion that there was a connection with her first lawsuit, the hiring committee for all of the jobs consisted of two individual defendants in the first suit. She also alleged a variety of other hostile and derogatory comments between the settlement and initiating her 2nd suit.
This time she did not bring a Title VII retaliatory claim, but relied on her constitutional claim under the 1st Amendment. That made critical whether her actions were of "public concern." Looking at the trial court's determination that it was not, the Court noted:
When the district court considered Konits’s claim in 1996, it found an issue of fact sufficient to defeat a motion for summary judgment: whether the School District’s adverse personnel action against Konits was in retaliation for her assisting Ms. Kenny. We therefore find curious its conclusion in 2004 that the 1996 lawsuit was not speech on a matter of public concern.
The Court went on to note that "gender discrimination in employment is without a doubt" a matter of public concern. And putting to rest a split that had developed among the district courts within the 2nd Circuit, held:
By our decision today, we resolve this split and hold 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.
So back to the trial court for yet another chorus of Konits v. Valley Stream,
an apparently long running hit that you just know the school district is ready to end.