RICHARD TRUSZ v. UBS REALTY INVESTORS, LLC, et al., SC 19323

On Certification from the United States District Court for the District of Connecticut

 

      Free Speech; Employment; Whether U.S. Supreme Court Holding that Speech in the Course of One’s Official Duties is Not Protected by the First Amendment Applies to Claim that Employer Violated General Statutes § 31-51q by Disciplining Private Employee Based on Speech Protected by the State Constitution.   The plaintiff sued the defendant, his former employer, in federal court, alleging that the defendant retaliated against him and terminated his employment because he expressed his opposition to the defendant’s practice of overvaluing its clients’ real estate investments.  The plaintiff alleged that his opposition to the defendant’s practice was a matter of public concern and that his speech on the matter was protected under General Statutes § 31-51q and the free speech provisions of the Connecticut constitution.  Section 31-51q provides that any employer who disciplines or fires an employee on account of the employee’s exercise of his free speech rights under the federal and state constitutions shall be liable to the employee for damages, so long as the employee’s speech did not significantly interfere with the employee’s performance or the parties’ working relationship.  In Garcetti v. Ceballos, the United States Supreme Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for first amendment purposes, and the first amendment does not insulate their communications from employer discipline.  In Schumann v. Dianon Systems, Inc., 304 Conn. 585 (2012), the Connecticut Supreme Court held that Garcetti applies to § 31-51q claims against private employers that are based on the first amendment and accordingly that a private employee’s speech made pursuant to his official employment duties is not insulated from employer discipline by the first amendment.  Schumann did not address whether Garcetti should be extended to § 31-51q claims based on the free speech provisions of the Connecticut constitution.  The District Court therefore certified the unanswered question to the Connecticut Supreme Court pursuant to General Statutes § 51-199b, and the Supreme Court accepted the following question: “Does the rule announced by the U.S. Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), i.e., ‘that when . . . employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the [federal constitution] does not insulate their communications from employer discipline,’ apply to a claim that an employer violated Conn. Gen. Stat. § 31-51q by subjecting an employee ‘to discipline or discharge on account of the exercise by such employee of rights guaranteed by [the free speech provisions of] . . . section 3, 4, or 14 of article first of the [Connecticut constitution] . . .?’”