United States District Court, D. Connecticut
LUKE WEINSTEIN, Plaintiff.
P. CHRISTOPHER EARLEY, Defendants.
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR
W. Eginton Senior U.S. District Judge.
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.
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.
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.
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.
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.,
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
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
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.
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."
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.
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.
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.
same day, plaintiff signed the 2010-11 appointment letter for
the Assistant Professor in Residence.
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."
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 ...