Case updates this week:

Wednesday March 13th: The federal district court for the Southern District of New York granted summary judgment against an employee of the New York State Workers’ Compensation Board (WCB) who claimed he was denied a promotion because of his protected speech against COVID-19 mask mandates. In Cestaro v. Rodriguez, the plaintiff, Cestaro, is a Compensation Claims Referee whose promotion to Senior Compensation Claims Referee/Administrative Law Judge was rescinded after Cestaro was recorded on a New Jersey Transit train verbally harassing a conductor who asked him to pull his mask over his mouth and nose, in compliance with the transit masking requirements at the time. An attorney who frequently argued before Cestaro forwarded the video to defendants, various management level employees of the WCB, after it was posted on TikTok. The defendants revoked the promotion, finding Cestaro’s actions rude, aggressive, and unprofessional. Cestaro argued that the defendants retaliated against the exercise of his First Amendment right to Free Speech by revoking his promotion. The court rejected this argument, holding that the defendants had adequately proved that they fired Cestaro for his dismissive and “unprofessional” actions towards the transit employee. The court emphasized that “an employee who makes an unprotected statement is not immunized from discipline by the fact that this statement is surrounded by protected statements.” The remaining claims were dismissed based on Eleventh Amendment sovereign immunity because the involved officials either were not personally involved in the matter or were no longer employed at the WCB.

Monday March 18th: The federal district court for the Eastern District of Washington dismissed a suit against Washington’s governor regarding COVID-19 vaccine mandates he instituted for healthcare workers in Roberts v. Inslee. The plaintiffs, former healthcare workers at Shriners Hospital for Children, initially brought suit against both their employer as well as Washington Governor Jay Inslee for losing their jobs after refusing to receive the COVID-19 vaccine. While defendant Shriners was dismissed as a defendant in a prior ruling, the plaintiffs continued their suit against Governor Inslee in his official and individual capacity. The plaintiffs alleged that the governor violated their individual rights, locating these rights in numerous federal and state laws, including the Spending Clause, the Public Readiness and Emergency Preparedness (PREP) Act, as well as both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. However, the court held that Inslee was immune to the claims against him in his official capacity because the Eleventh Amendment’s concept of sovereign immunity automatically eliminates claims against States in federal court, unless that immunity is waived by the State. The court also held that the claims against Inslee in his individual capacity must be dismissed because the COVID-19 vaccine mandate for healthcare workers did not violate any clearly established constitutional rights.

Monday March 18th: The Supreme Court heard oral arguments in Murthy v. Missouri, a case alleging that Biden administration officials overreached in encouraging social media companies to remove certain COVID-19 vaccine misinformation from their platforms. The case comes to the Court after the Fifth Circuit upheld a preliminary injunction prohibiting such contact in the future based on First Amendment violations. The majority of Justices appeared to doubt the plaintiffs’ argument that almost all government contact with social media or traditional media companies would count as coercion given the government’s stature. A final ruling is expected by this summer. In the interim, a stay on the injunction that was issued in October remains in place.