Court: Worker Not Entitled to Free Speech Protections During Employment Duties

By Judy Greenwald

Apr. 24, 2012

The Connecticut Supreme Court overturned a $10 million verdict in favor of a terminated employee April 23, holding the worker was not entitled to First Amendment protection because his speech was uttered in the course of his employment duties.

According to the unanimous opinion in G. Berry Schumann vs. Dianon Systems Inc., Schumann, had worked at the Shelton-based firm performing urine diagnostic tests in his position as a cytopathologist since 1992.

In 2005, Schumann objected to the use of a new test and the introduction of new diagnostic terms, voicing his opinions to his supervisor and others, according to the ruling. He was terminated after he missed a meeting and because of his decision not to use the new diagnostic terms, according to the ruling.

He filed suit and a jury awarded him more than $10 million, which included economic as well as punitive damages.

An issue in the case was the U.S. Supreme Court’s 2006 ruling in Garcetti vs. Ceballos, in which the high court held that “government employers, like private employers, need a significant degree of control over their employees’ words, and actions; without it, there would be little chance for the efficient provision of public services.”

In overturning the jury verdict, however, the court said it “is readily apparent that the plaintiff’s speech in its entirety was extraordinarily disruptive to his employment with the defendant and, therefore, not constitutionally protected” regardless of whether Garcetti applies. “First, all of the speech at issue took place in the work environment, rather than on the plaintiff’s own time. Second, the speech greatly interfered with the plaintiff’s job performance,” said the decision.

“Finally, because the plaintiff’s speech in opposition to the defendant’s new diagnostic codes was accompanied by his refusal to use those codes, it was insubordinate in nature, removing it from the ambit of constitutional protection,” said the ruling.

The case was remanded for a new trial limited to Schumann’s wrongful termination claim.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email

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Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

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