Labor & Employment Law Daily Wrap Up, RETALIATION—9th Cir.: University officials who fired director for husband’s whistleblowing speech were entitled to qualified immunity, (May 8, 2025)

By Kathleen Kapusta, J.D.

Speech-based retaliation against a non-speaking third-party implicate “a different species of constitutional protection, the contours of which must be independently delineated.”

Because it was not clearly established in June 2019 when a senior director at the University of Arizona Health Sciences (UAHS) was terminated, purportedly as a result of the whistleblowing speech of his husband and colleague, that the First Amendment protects public employees from retaliation for a family member’s speech, the Ninth Circuit affirmed the dismissal of his First Amendment claim on qualified immunity grounds. The court left for another day “the merits of the underlying constitutional question—whether a public employee has constitutional protection from retaliation based on a close family member’s speech, in this case a family member who is also a public employee.” Judge Berzon, concurring, argued that “where the opportunity presents itself to provide much-needed clarity to the legal community on a general legal question—that is, one not mired in the facts of a particular dispute—we should seize the chance to do so, especially when it comes to a constitutional interest as critical as free speech” (DeFrancesco v. Robbins, No. 23-16147 (9th Cir. May 7, 2025)).

As Senior Director of Operations at UAHS from 2015 to 2019, the director ultimately oversaw a budget exceeding $1 billion and served as the functional head of HR for a staff of over 500 people. During much of this time, his husband was also employed by the university as a Senior Vice President (SVP) and Chief Financial Officer.

Search committee. In 2017, the university president established a search committee for a new SVP to run UAHS and requested that a particular search firm, which employed several of his friends, assist the committee. The director’s husband volunteered to co-chair the committee.

The president then encouraged a close friend and surgeon to apply for the position. Although his initial interview did not go well, the president told the director’s husband that he was not concerned because it was “taken care of.” And while committee members also expressed concerns about the friend, they were worried that voting him down might hurt their careers. At the search firm’s suggestion, they conducted an anonymous vote. The firm tallied the vote and announced that the friend was a finalist. When asked, the firm refused to disclose the vote counts, stating that the “vote had turned out” the way the president wanted.

Mistake. After the friend did poorly on his second interview, the director’s husband discussed his concerns, and the concerns of the committee, with the president who subsequently announced at a meeting with other university officials that his friend would receive an offer. The director’s husband, protesting, asserted that the entire process had been pre-planned by the president and that hiring his friend would be a serious mistake. Angry, the president stormed out. The husband ultimately left the university in October 2018.

Targeted. After hiring his friend in March 2018, the president told him that the director’s husband had advocated against him, that the director was a UAHS executive, and that the friend had the authority to fire him. After that, according to the director, the president began targeting and harassing him, refused to promote him, and ultimately fired him in June 2019.

Prior proceedings. The director sued the president and his friend, alleging that they infringed upon his First Amendment right to be free from retaliation for his husband’s allegedly protected whistleblowing speech. Dismissing his lawsuit, the district court held that he failed to show he had a clearly established First Amendment associational right to be free from retaliation for the protected speech of his spouse. It also found the president and his friend were entitled to qualified immunity.

On appeal, the Ninth Circuit found that the district court abused its discretion by denying the director leave to amend his First Amendment claim to clarify whether the husband was engaged in protected whistleblowing speech. The director filed a second amended complaint, which the district court again dismissed based on qualified immunity, finding “no persuasive law that clearly establishes that a First Amendment retaliation claim may be made by one person for the protected speech of another person based on a close personal relationship between the two.”

No binding precedent. Addressing the director’s claims for a second time, the appeals court noted that there was no binding precedent in the Ninth Circuit governing whether the First Amendment protects public employees from retaliation for a family member’s speech. Further, the court observed, the few relevant decisions from the circuit and the Supreme Court did not clearly establish the unlawfulness of the president’s and friend’s conduct.

And while the director cited several Supreme Court and Ninth Circuit decisions for the proposition that the First Amendment prohibits government officials from retaliating against their employees for speaking out, the court pointed out that the law is “settled that as a general matter,” public employees enjoy protection from retaliation based on their own protected speech. Applying this First Amendment principle to retaliation for speech by a family member, however, “does not represent the ‘mere application of settled law to a new factual permutation,’” said the court, explaining that “First Amendment retaliation cases in which the plaintiff, a protected speaker, was injured by the employer’s actions do not clearly establish that a speaker’s family member may not be retaliated against.” Rather, the court reasoned, “speech-based retaliation against a non-speaking third-party implicates a different species of constitutional protection, the contours of which must be independently delineated.

Out of circuit. Turning to out-of-circuit and district court cases to determine whether there was, by June 2019, a “robust consensus of persuasive authority” establishing this constitutional protection, the court noted that some circuits have recognized that the First Amendment prohibits retaliation against a public employee for a family member’s conduct or speech. In addition, several district courts have acknowledged that the First Amendment’s antiretaliation protection for public employees may cover the relatives of those engaged in First Amendment-protected activity.

As to cases cited by the president and his friend to support their contention that the claimed First Amendment protection was not clearly established at the time of the director’s termination, the court found one to be of mixed relevance and another inapposite. “Still,” said the court, “there was enough uncertainty among appellate and district courts by June 2019 that the First Amendment protection from retaliation for a family member’s speech was not ‘beyond debate.’”

Indeed, said the court, although there was, by June 2019, some authority favoring the recognition of the protection the director asserted, it was not “settled law” that retaliation against a public employee for his relative’s speech violates the First Amendment. Accordingly, the court held that “whether or not the First Amendment protects public employees from retaliation for a family member’s speech, this principle was not clearly established at the time of [the director’s] termination.” It declined, however, to address the merits of the underlying constitutional question.

Concurrence. In a separate concurring opinion, Judge Berzon explained that while the familial antiretaliation protection under the First Amendment was not clearly established at the time of the director’s termination, she would have reached the first prong of the qualified immunity analysis and held that protection is well-grounded in Supreme Court and Ninth Circuit precedent. She would also have found that the president and his friend violated the director’s constitutional protection against retaliation for his husband’s speech. “When our court unnecessarily skirts pressing constitutional questions in qualified immunity appeals,” she asserted, “our jurisprudence becomes stagnant and unresponsive to litigants’ concerns.”

The case is No. 23-16147.

Judge: Per curiam.

Attorneys: Lauren M. Brody (Miller Barondess) and Jonathan A Dessaules (Dessaules Law Group) for Anthony T. DeFrancesco. Daniel G. Dowd (Cohen Dowd Quigley) for Robert C. Robbins and Michael D. Dake.

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