A federal appeals court has upheld the dismissal of a claim filed by a fired University of Arizona employee against former UA President Robert C. Robbins and former UA health sciences Senior Vice President Michael Dake.
Anthony DeFrancesco claimed he was fired in 2019 as senior director of operations at UA Health Sciences in retaliation for “whistleblowing speech” by his husband, in violation of the First Amendment.
Dake
The 9th Circuit Court of Appeals writes in its May 7 ruling: “We hold today 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 DeFrancesco’s termination.”
“In so holding, we leave 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.”
The court summarized DeFrancesco’s case as follows:
Robbins
DeFrancesco’s husband, Gregg Goldman, who also held a high position at the UA, as senior vice president and chief financial officer, was co-chairman of Robbins’ search committee to find a senior vice president to run Health Sciences.
Goldman opposed and spoke out against Robbins’ 2018 hiring of Dake, saying some committee members thought he had minimal experience running an academic department and was overconfident, among other concerns. Robbins and Dake, fellow surgeons, had worked together and Robbins called Dake his “longest, best and dearest friend,” the lawsuit said.
After Dake was hired, Goldman voluntarily left his position with the university.
DeFrancesco sued Robbins and Dake in 2020 as individuals, claiming Dake “harassed and subsequently terminated” DeFrancesco “because of his husband’s speech.”
A lower District Court ruled that Robbins and Dake were entitled to qualified immunity “because it was not clearly established at the time of DeFrancesco’s termination in June 2019 that defendants’ adverse treatment of DeFrancesco on account of his husband’s speech violated the First Amendment.”
The 9th Circuit affirmed that lower court conclusion, writing: “At the time of his firing, it was not ‘settled law’ that retaliation against a public employee for his relative’s speech runs afoul of the First Amendment.”
Robbins stepped down as UA president last year. His successor, Suresh Garimella, announced last week that Dake was leaving his $997,319-a-year position and it is being eliminated, as Health Sciences will report instead to the Provost’s Office.
At the time DeFrancesco first went to court, the Arizona Board of Regents, which oversees the UA, told the Arizona Daily Star through then-chair Larry Penley: “We stand firmly behind President Robbins and his process and selections of key university leaders, including Dr. Michael Dake, an outstanding leader of our health sciences.”
