Blum v. Schlegel
18 F.3d 1005, 1994 WL 67166 (1994)
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Rule of Law:
To succeed on a First Amendment retaliation claim, a public employee must demonstrate that they suffered an adverse employment action and that there was a causal connection between their protected speech and the adverse action. A professor who voluntarily defers and later formally withdraws from a tenure review process cannot establish that they suffered an adverse employment action.
Facts:
- In 1985, Jeffrey M. Blum joined the State University of New York at Buffalo School of Law as an associate professor on a six-year tenure track, with his review scheduled for the 1990-1991 academic year.
- In 1989 and 1990, Dean David Filvaroff informed Blum that his chances of receiving tenure were poor.
- Following this prognosis, Dean Filvaroff suggested that Blum defer his tenure review for one year to improve his scholarship, an option Blum appeared to accept while negotiating its terms.
- Filvaroff informed Blum that for the extension year, his title would change to "Visiting Associate Professor" to comply with university rules that prevented a fourth consecutive year as an associate professor without tenure.
- During his employment, Blum publicly advocated for the legalization of marijuana and criticized national drug control policy in his classes and campus publications.
- After the university prepared for his deferred tenure review in the fall of 1991, Blum submitted a formal declaration on April 2, 1992, stating he did not want a tenure evaluation to go forward.
- Blum's contract with the university expired on August 31, 1992.
Procedural Posture:
- Jeffrey M. Blum sued the dean and other university officials in the U.S. District Court for the Western District of New York, alleging constitutional violations under 42 U.S.C. § 1983.
- The district court granted the defendants' initial motion to dismiss but allowed Blum to file an amended complaint.
- After filing an amended complaint, Blum moved for a preliminary injunction to prevent his termination while the case proceeded.
- A magistrate judge reviewed the motion and recommended that the preliminary injunction be denied.
- The district court judge adopted the magistrate's recommendation and issued an order denying Blum's motion for a preliminary injunction.
- Blum, as appellant, appealed the district court's denial of the preliminary injunction to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a university professor establish a likelihood of succeeding on a First Amendment retaliation claim when, after engaging in protected speech, he voluntarily agrees to defer his tenure review and later formally declines to be reviewed at all, thus failing to show an adverse employment action?
Opinions:
Majority - Oakes, Senior Circuit Judge
No. A university professor fails to establish a likelihood of succeeding on a First Amendment retaliation claim when he cannot show he suffered an adverse employment action because he voluntarily waived his right to tenure review. To obtain a preliminary injunction, a movant must show a likelihood of success on the merits. Blum failed to do so on both his First and Fourteenth Amendment claims. For his First Amendment claim, while his speech on drug policy was protected as a matter of public concern, he failed to establish the other two prongs of the Mt. Healthy test. He did not suffer an adverse employment action because the record, filled with extensive correspondence, shows he consented to deferring his tenure review and then explicitly withdrew from the process entirely. Furthermore, he failed to establish a causal connection between his speech and his tenure difficulties, as his purported evidence of causation consisted of misinterpreted, out-of-context statements. Regarding his Fourteenth Amendment claim, the court did not need to decide if he had a property interest in tenure procedures because he waived any right he may have had. His liberty interest claim also failed, as an associate dean's disparaging comments did not rise to the level of a constitutional violation.
Analysis:
This case clarifies the application of the 'adverse employment action' prong of the First Amendment retaliation test in an academic setting. It demonstrates that an employee's own actions, such as consenting to a change in employment status or waiving a review, can defeat a claim that the employer took adverse action against them. The decision reinforces that courts will closely scrutinize the factual record, including employee communications, to determine whether an outcome was imposed by the employer or resulted from the employee's voluntary choices. For future retaliation cases, this ruling underscores the difficulty plaintiffs face when their conduct can be construed as waiver or consent, making it harder to establish a key element of their claim.
