Justice O’Connor and bodily fluids


On July 15, I posted an entry about a decision by a panel including visitor Associated Justice (Ret.) Sandra Day O’Connor.  On August 7, another of the decisions with her on the panel issued, with the opinion written by Chief Judge Lynch.  It’s memorable both for its interesting facts and elegant law:


A fired medical examiner claimed that he was dismissed for protected First Amendment speech.  The First Circuit affirmed a Rule 50(a) judgment for the defendant.

The facts are pretty interesting – lots of bodily fluids involved, including a bloody death certificate and what the decision refers to as  "urinate/fart email."  (I’m so glad we could give Justice O’Connor some cases representing life’s rich pageant).

Even better, however, is the legal analysis.  I mused the other day on when it’s appropriate to grant summary judgment when there’s a subjective element to the cause of action.  Here, even though the plaintiff seems to have been a seriously odd duck and the defendant had a solid basis to fire him, the Court did not affirm on the basis that there was no dispute of fact on the merits.  Given the timing of when he was fired and when he sent a letter about a protected issue, the Court said it could not say that no reasonable jury could have concluded that there was no cause of action and the letter could not have been a motivating factor for his termination.  The Court stressed that the "test is not what the jury is likely to be," and the evidence was strong that it was the plaintiff’s other behavior that caused his dismissal, but there was enough to survive a Rule 50(a) motion.

But when it then comes to looking at whether the defendant had qualified immunity, the test is objective, not subjective, and all that strong evidence against the plaintiff is enough to support a summary-type judgment.  The question on the immunity front is whether a reasonable officer in the defendant’s position could have believed, albeit mistakenly, that he did not violate the First Amendment.  Looking at the evidence at trial, this objective test was met.    

It seems to me that this decision gets it right on all cylinders.