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December 06, 2010

Employee claims termination was in retaliation and that her employer defamed her

Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198

In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.

Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.

During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.

Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.

Concerning retaliation

The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.

In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:

1. he or she engaged in a protected activity;

2. suffered an adverse employment decision; and

3. there was a causal link between her protected activity and the adverse employment decision.

The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.

The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.

Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*

Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.

While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.

In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.

Concerning defamation

Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”

Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.

The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.

In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.

While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.

A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.

In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.

* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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