She Got Naked for Trump and Got Fired For ItChelsy Zelasko gave an interview and posed for some very suggestive1 photographs which were posted on a website a week before the 2016 election. Although she had previously been a registered democrat, she vigorously advocated for then candidate Trump in the interview, at least partially because she felt he would safeguard her Second Amendment right to bear automatic weapons. Although she clearly wanted Trump to win, she wanted everyone to go out and take advantage of their right to vote, and said this was her motivation for doing this.

On February 1, 2019 (2 years and three months later), Ms. Zelasko was hired as an art teacher and counselor at the Grove School in Madison, Connecticut, which is a private institution. Two months after she was hired, the Executive Director of the school found out about the article and the posted photographs, and suggested that Zelasko resign, which she refused to do, replying that she had only been expressing her constitutional rights. The Executive Director replied that “The issue is about role-modeling for emotionally fragile kids and holding oneself to a higher standard as an educator. Your credibility is now a major concern.” He also noted that some of the photos used assault weapons to cover her private parts, A few days later, she was fired in a letter that conceded that she had been a capable teacher, but said that with a public presence and a community identity, the school could not be associated with this kind of behavior. She sued Grove School in New Haven Superior Court on June 3, 2019.

Don’t We All Have a Protected Right to Free Speech?

Yes and No. Everyone thinks the Constitution gives us all an absolute right of free speech, but it really doesn’t. You can say what you want, but that doesn’t mean your boss can’t fire you for saying it. If you read the First Amendment, it starts by saying that Congress shall make no law…abridging the freedom of speech. This means that the federal government (and, by way of the Fourteenth Amendment, no state or city) can limit free speech. This protects all governmental employees, but gives absolutely no protection to anyone that works for a private employer, like a private school. In most states, like in New York, the employee of a private business is allowed to say anything political that they wish, but their employer is allowed2 to fire them for saying it, whether they say it at work or not.

Don’t We All Have a Protected Right to Free Speech?

However – Ms. Zelasko might be laughing here because she just found out that Connecticut law3 makes any employer liable for firing an employee because she exercised First Amendment free speech rights, for all her damages, punitive damages, and attorney’s fees.

 

 

Does This Connecticut Law Apply Here?

Absolutely. First, Zelasko not only gave an interview in support of a presidential candidate, but the photos were obviously taken in conjunction with the interview. In order to be protected under the First Amendment, the speech must be about a matter of public concern4, but advocating for a presidential candidate, as well as the Second Amendment automatic weapons issue, both clearly involve public concern. While the photographs are not technically speech, these photographs are clearly “expressive conduct” which is entitled to free speech protection for several reasons, not the least of which is that they were part and parcel of the interview, and they also depict firearms5 and the American flag6.  Since her private parts were covered, the photographs were not obscene. There can be no question that this lady engaged in protected speech.

Zelasko was very clearly told that although she was a capable employee, she was being terminated as a direct result of the interview and the photographs. The circumstances of her termination could not be any clearer.

Does That Mean That Ms, Zelasko Will Automatically Win Her Lawsuit?

Does That Mean That Ms, Zelasko Will Automatically Win Her Lawsuit? (She’s thinking)
No. She still has 2 hurdles to clear.

The Connecticut statute requires her to prove:
(1) that the activity would not substantially or materially interfere with her bona fide job performance or
(2) with her relationship with the employer.

 

These issues are not so straightforward here. First, Grove School holds itself out as a haven for troubled high school age students that have had dysfunctional experiences with their families and previous schools, and they boast a 90% success rate at college admission for their graduates. Their website advertises that many mental health professionals who can prescribe medication are kept on staff, and multiple individual therapy sessions are available weekly for each student. The school will have the right to argue that posing semi-nude with automatic weapons is not the right role-model presentation for these particular children. It is true that the Executive Director specifically told Zelasko that she had been a capable teacher up to that point, but it is reasonable to assume that every student would hear about this after her firing and bring up the racy pictures of their counselor on their computers. Is it that clear that this would not hinder her ability to counsel troubled young adolescents? What if some of the students are unstable and might be inclined toward gun violence? Is that setting the best example?

Even if she’s able to get over that first hurdle, that the photos would not substantially interfere with her job performance, wouldn’t it interfere with her relationship with her employer? She has to prove that it would not substantially or materially affect that relationship in order to win under the Connecticut statute. The employer has to appeal to the parents of troubled kids to stay in business, and whether it actually affects their ability to get new students or not, won’t it affect her relationship with her employer?  She’s on the internet holding an assault rifle and the school is only about an hour’s drive from Sandy Hook. Does her employer have a right to be upset about that and the message it sends to the parents and the surrounding community?

If the case isn’t settled, it seems to me that these last 2 questions will have to be decided by a jury. What a fascinating case.

 

[1] Although she was nude, her private parts were covered by an American flag or by firearms in all of the photos.
[2] New York gives very limited protection to employees against discrimination for certain political activities, see, N.Y. Labor Law § 201-d(1)(a).
[3] Conn. Gen. Stat. § 31-51q – Any employer…..who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the First Amendment to the U.S. Constitution…..provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge…….
[4] Aumueller v. Optimus Mgmt. Group, 2012 Conn. Super. LEXIS 3207
[5] Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999).
[6] Tex. v. Johnson, 491 U.S. 397 (1989), Snider v. City of Cape Girardeau, 752 F.3d 1149 (8th Cir. 2014).