Cromley v. Bd. of Educ. - 17 F.3d 1059 (7th Cir. 1994)

Rule:

The test for when determining when conduct is protected by the First Amendment is one which protects against the invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights. It is a burden-shifting formula. The plaintiff who alleges retaliation for the exercise of his constitutionally protected rights thus has the burden of showing that the protected conduct was a substantial or motivating factor in the defendant's action. If plaintiff meets this burden, the burden then shifts to defendant to prove by a preponderance of the evidence that plaintiff would not have attained the position he sought even without the protected speech considerations. 

Facts:

Marcella Ann Cromley, a high school teacher, brought an action under 42 U.S.C. § 1983. She claimed that she had been denied various administrative positions because she had exercised her right to free speech as guaranteed by the First Amendment and made applicable to the states by the Fourteenth Amendment. The district court granted summary judgment to the defendants Board of Education of Lockport Township High School District 205 and its superintendent, assistant superintendent, principal, and one teacher (the "defendants"). It also denied Cromley's motion to disqualify defendants' attorneys. She appealed the judgment of the district court.

Issue:

Was there sufficient evidence for a trier of fact to reasonably conclude that the protected speech was a substantial and motivating cause of the merger and of Cromley's failure to attain leadership positions?

Answer:

No

Conclusion:

The reviewing court's analysis under the three-prong substantial relationship test, which led to the conclusion that disqualification was not required, likewise led to the conclusion that the attorney had not breached the Code of Professional Ethics in his representation of Cromley. The attorney had successfully rebutted the presumption of shared confidences by proving that appropriate screening procedures were timely employed and fully implemented. The complaint alleged that defendants had retaliated against Cromley because she had complained about the sexual misconduct of another employee, a complaint that she asserted was protected speech. Cromley could not, under Fed. R. Civ. P. 12(m), ignore defendants' assertions that her protected speech was not a substantial factor in the decision not to reappoint her, and that, even if such speech had been a factor, defendant's decision would have been the same. Because Cromley did not present evidence, direct or circumstantial, to refute the stated, legitimate reasons for not reappointing her, reversal of the summary judgment was not warranted.