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Weinstein v. Earley

United States District Court, D. Connecticut

November 1, 2017



          Warren W. Eginton Senior U.S. District Judge.

         In this action, plaintiff Luke Weinstein, a former University of Connecticut ("UConn") professor and Director of the Innovation Accelerator ("IA") at UConn School of Business, alleged that defendant Dean P. Christopher Earley is liable for violation of his First Amendment right to free speech in violation of 42 U.S.C. § 1983.[1]

         In a ruling filed August 28, 2015, this Court granted summary judgment on plaintiff's claims of First Amendment retaliation based on his speech relevant to workers' compensation coverage for students, payment for students, and Institutional Review Board approval. In his opposition brief, plaintiff argued that he had been retaliated against based on his speech concerning Dean Earley's nepotism. Specifically, plaintiff maintained that he was not reappointed him as Director of the IA or Associate Professor in Residence due to his complaints about Dean Earley's appointment of his wife as the Executive Director of the SCOPE, another program within the School of Business.

         The Court ruled that it would consider the merits of plaintiff's claim and afforded defendant the opportunity to file a supplemental motion for summary judgment.

         In a ruling dated January 26, 2016, the Court granted summary judgment on plaintiff's claims of retaliation based on his complaints of nepotism. The Court held that plaintiff's complaint was of public concern but that that defendant had a legitimate justification not to renew plaintiff's contract upon consideration of the potential for disruption to the morale of the faculty and the ability of the Dean to satisfy his role balanced against the limited value of the plaintiff's speech.

         The Court held, in the alternative, that Dean Earley was entitled to the shield of qualified immunity. On appeal to the Second Circuit, plaintiff argued that the district court had erred by improperly deciding disputed issues of fact in applying the Pickering interest balancing framework and in awarding Earley qualified immunity. Weinstein v. Univ. of Conn., 676 Fed.Appx. 42, 43 (2d Cir. Jan. 20, 2017). The Second Circuit held:

We need not decide these challenges because-even assuming that (1) Earley was aware of Weinstein's nepotism comments, (2) the Pickering balance as to those comments favored Weinstein, and (3) Earley was not entitled to qualified immunity-no reasonable jury could conclude from the record presented that, but for Weinstein's comments, he would have been reappointed as Director of the IA program. See Hartman v. Moore, 547 U.S. 250, 260, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (holding that if "retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official's mind") (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. at 287, 97 S.Ct. 568)); see Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 877 (2d Cir. 1988). To the contrary, a reasonable jury could only conclude that Weinstein would not have been reappointed even absent the nepotism complaint. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. at 287, 97 S.Ct. 568; accord Smith v. County of Suffolk, 776 F.3d at 119.

Id. The Second Circuit elaborated that the Weinstein "repeatedly questioned proposed changes" to the IA program; that Earley asked Weinstein to stop because Weinstein's actions were "counterproductive" to the program goals; that Weinstein persisted in raising program concerns with various University personnel before he made comments regarding Earley's nepotism; that prior to expiration of his 2009-10 annual term as Director, Weinstein expressed to Earley and other officials his concerns about changes to the program and expressed reservations about being "captain" of a ship that was "going to sink;" and that Earley "consistently conditioned reappointment on Weinstein's sincere acceptance of changes to the IA program." id., at 44-45. The Second Circuit explained:

Weinstein does not contest the district court's ruling that his speech regarding the IA program was not protected by the First Amendment. Thus, we easily conclude that the record evidence convincingly demonstrates a determinative link between this "nonprotected" speech and the challenged adverse action that would compel a jury to make a preponderance finding that Weinstein would not have been reappointed Director even without his nepotism complaint.

id., at 44. The Second Circuit remanded to the district consideration of plaintiffs retaliation claim based on the failure to be reappointed as an Assistant Professor in May 2011. The Second Circuit noted that Weinstein had "identified as protected speech not only his nepotism comments, but also the September 2010 grievance that he filed after the adverse Director decision but before the adverse Assistant Professor decision, " and that "the district court did not expressly address this retaliation claim in its January 21, 2016 decision." id., at 45.

         Defendant Earley has submitted a motion for summary judgment on the claims based upon plaintiffs failure to be renewed as an Assistant Professor due to his May 2010 and September 2010 communications.


         The parties have submitted statements of fact with supporting exhibits attached. The statements of fact, exhibits and pleadings reveal the following factual background. The Court incorporates herein the background from its prior rulings and includes additional material relevant to the grievance procedure and the non-renewal of plaintiffs Assistant Professor position.

         Plaintiff was employed at UConn from January 2007 until August 22, 2011. Until August 22, 2010, he was employed as the Director of the IA, an experiential learning center, and as an Assistant Professor in Residence in the Management Department of the School of Business Management. From August 23, 2010, through August 22, 2011, plaintiff was employed solely as an Assistant Professor in Residence.

         The appointment letter for the 2010-2011 position of Assistant Professor in Residence provided: "This position does not lead to permanent academic tenure but it may be renewed annually depending upon performance, funding and relevance to the academic mission."

         On May 25, 2010, to Director of Compliance Rachel Rubin, plaintiff voiced his concerns regarding Institutional Review Board Approvals for summer interns working on certain IA projects and the insurance/worker's compensation implication of a new fellowship model. During his discussions with Rubin, plaintiff communicated his concern about Dean Earley's appointment of Earley's wife as Director of SCOPE, which plaintiff has stated presented a potential violation of state ethics rules due to nepotism.

         According to his deposition testimony, Provost Peter Nicholls had discussions with Dean Earley relevant to implementing a search procedure to fill all director positions going forward in May and June 2010.

         On June 8, 2010, defendant Dean Earley sent an email to all School of Business faculty that requested nominations and invited applications for five administrative positions, including the Director of the IA.

         That same day, plaintiff signed the 2010-11 appointment letter for the Assistant Professor in Residence.

         On June 22, 2010, plaintiff sent an email replying to the emails sent by Dean Earley and Vice Provost Nancy Bull regarding the search procedure for the director position. He wrote: "Now with all due respect, my situation appears to have gone from a planned meeting with the Provost's office (June 9 email), then a meeting with the Provost together with the Dean (June 10 email) - now to the Provost's office having a meeting with the Dean's office and presenting me with a dictate (June 21, 22 emails). I still expect to have the offered meeting before I made any decisions. But that is your call to make." Without attaching his curriculum vitae, plaintiff concluded this email with: "I have signed an in-residence contract to teach in the department of management for the 2010-2011 year. I would love to find a way to continue as Director of IA."

         On July 19, 2010, plaintiff, Dean Earley, Vice Provost Bull and others participated in a meeting to discuss the future of the IA and the requirement that plaintiff apply for the director position. At that meeting, Dean Earley indicated that it was important for plaintiff to be supportive of the redesigned MBA program if he were to become Director. Relevant to submission of an application, Dean Earley stated: "The issue is whether or not you want to continue. Now one of the things that's a bit - complicates this even further is you were nominated and contacted about sending in materials for this position. You chose not to. And that's problematic from our process perspective because now if we appoint you to this position, well we've done so without having followed the same procedure we used for all of the other directors ...

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