What happened. Carol Konits was a tenured music teacher in the Valley Stream Central High School District when, in 1996, she helped custodian Marie Kenny file and pursue a gender bias lawsuit. Konits herself sued the district later that year. The federal district court found she had a legitimate retaliation claim, and her case was sent to trial, where it was settled.

From 1999 to 2001, Konits alleged, the school district rejected her applications for several band and orchestra positions and subjected her to other hostile acts. When her second suit for retaliation reached the same federal district court, a judge dismissed her complaint, siding with the school district on the basis that her 1996 activities on behalf of her co-worker had been an expression of personal, not public, concern. She appealed to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said. Appellate judges found the district court’s second decision puzzling: If Konits’s first suit, related to helping her co-worker with a discrimination complaint, was ruled a matter of public concern, why would her second suit, related to the same complaint, be ruled a personal concern? The judges were quite firm in their opinion: "We … hold that any use of state authority to retaliate against those who speak out against discrimination suffered by others, including witnesses or potential witnesses in proceedings addressing discrimination claims, can give rise to a cause of action [or lawsuit]." Noting that they had resolved a split among federal district courts in the circuit, judges sent Konits’s case back to the lower court for reconsideration. Konits v. Valley Stream Central High School District, U.S. Court of Appeals for the 2nd Circuit, No. 04-2106-cv (1/7/05).

Point to remember: Public employees like Konits can charge that retaliation has violated their First Amendment right to free speech and other constitutional rights, in addition to state civil rights laws.