Thursday, April 5, 2018

Trump flipper-offer files secondhand First Amendment claim

Yeah, that's not a title I thought I'd ever type here. I think it's pretty accurate though. Remember that lady who got fired for giving President Trump's motorcade the middle finger. Of course you do, but just in case, here ya go:


That's not a hand signal.

Welp, now she has filed a lawsuit (Complaint included). On what basis? Well, two really. One is pretty dull . . . she claims she was promised four weeks of severance but only received two. A basic breach of contract claim. This could be important if it nullifies a separation agreement that waived all claims.

The second claim is the big one. She claims "wrongful termination" in violation of public policy. In other words, no law specifically prohibits her termination . . . but she wants the Court to make a special exception to the general rule of "at will" employment (the employer or the employee can terminate the employment relationship for any reason or no reason).

Obviously there are statutory exceptions to "at will" employment; as one example, Title VII says you can't fire someone because of their race. However, courts rarely create exceptions (under the common law, or judge-made law). Here, the plaintiff asserts a sort of secondhand First Amendment claim.

Public employers cannot retaliate against employees when they speak as private citizens on matters of public concern. I guess that's arguably what the plaintiff here did . . . but she's not a public employee. So, she claims that her government contractor employer fired her because it was afraid of retaliation from the government (and *that* retaliation would be prohibited by the First Amendment).

It's clever. I don't know enough about Virginia common law to weigh in on its viability. I can say that the Pennsylvania Supreme Court interprets the public policy exception to at will employment *very* narrowly. I guess we'll see. It sounds a little like a long shot to me.

Fun fact: While I was in law school, I interned for a judge at the Fairfax County Circuit Court where this suit was filed.