DiCesare v. Town of Stonington

Summary

**Key Legal Topics:** First Amendment retaliation (public employee speech, matter of public concern), Fourteenth Amendment due process (pre-termination notice), FMLA retaliation, stigma-plus claim. **Holdings:** The Second Circuit affirmed summary judgment for the Town, holding that the plaintiff's emails were made pursuant to his official duties and thus not protected speech under *Garcetti*; that pre-termination notice was constitutionally adequate under *Loudermill* given prior discussions and post-termination arbitration; and that the FMLA retaliation claim failed due to insufficient temporal proximity and lack of pretext evidence. The stigma-plus claim was also defeated by adequate process.

Holdings

1. The emails were made pursuant to DiCesare's official duties as a highway supervisor, not as a private citizen, and therefore are not protected by the First Amendment. Additionally, DiCesare failed to raise a genuine issue of fact as to whether the emails were a substantial motivating factor in the termination.
2. The pre-termination process provided to DiCesare was constitutionally adequate under Loudermill because he had notice of the charges and an opportunity to respond, and the post-termination arbitration through the CBA provided additional process.
3. DiCesare failed to make a prima facie showing of retaliatory intent because temporal proximity alone was insufficient where adverse actions began before he took FMLA leave, and he failed to produce evidence that the Town's legitimate reasons were pretextual.

Questions Presented

1. Whether the District Court erred in dismissing the First Amendment retaliation claim because the emails were not protected speech.
2. Whether the District Court erred in dismissing the due process claim because the pre-termination process was constitutionally adequate.
3. Whether the District Court erred in dismissing the FMLA retaliation claim for lack of evidence of retaliatory intent and pretext.

Disposition

affirmed