By Anthony Rice
In Smith v. County of Suffolk, the plaintiff Raymond Smith, a Suffolk County Police Lieutenant, failed to show a connection between his protected free speech and the adverse employment action. The court held that Smith’s First Amendment Retaliation claim failed because a jury could conclude Smith’s discipline was linked to repeated misuse of the employer’s computers and not his protected free speech.
Smith repeatedly violated Department policies by misusing computers and not showing up for hearings. Smith’s computer misuse spanned the course of 9 years and included at least three separate violations. One of the violations occurred on March 16, 2006 when Smith used a Department computer and supplies to make “Fantasy Baseball” flyers to advertise an upcoming “Fantasy Baseball League” throughout the Department. Smith also failed to appear at a DWI refusal hearing, forcing an Administrative Law Judge to adjourn the case. Moreover, Smith’s excuse for missing the hearing (he was reviewing his case notes on his computer) prompted the Commanding Officer to request a forensic examination of the Department computer. The examination revealed, among other things, Smith’s expressed opinions, to multiple news reporters, regarding departmental misconduct and discriminatory policies. Smith was subjected to disciplinary proceedings and suspension without pay. He later resigned and sued his employer on First Amendment grounds.
To be successful on a First Amendment Retaliation claim Smith must show his protected speech was a substantial motivating factor in the subjecting him to disciplinary proceedings and suspension without pay. A plaintiff can establish this causal connection by showing that the protected activity was followed by adverse treatment. However, a close proximity between the protected activity and adverse action was not enough in Smith’s case.
Here, there is no question that Smith can show a temporal proximity between the discovery of protected activity and the alleged adverse actions; nonetheless Smith’s claim must be dismissed . . . The record is clear that the investigation and disciplinary proceedings arose as a product of a previous disciplinary investigation that was already underway prior to the protected activity. . . [Thus,] this Court concludes that even construing the evidence most favorably to [Smith], no rational jury could find a causal connection between the adverse employment actions and Smith’s protected speech, as the only reasonable inference to be drawn from the record is that Smith’s continued misuse of his police computer was the basis for the disciplinary proceedings, suspension and reassignment in this matter.
