From 2015 to 2019, Anthony DeFrancesco served as the Senior Director of Operations at the University of Arizona Health Sciences (UAHS). His husband, Gregg Goldman, was UAHS’s Senior Vice President and Chief Financial Officer. In 2017, UAHS President Robert Robbins initiated a search for a new Senior Vice President and selected Michael Dake as his preferred candidate. Robbins described Dake as his “longest, best and dearest friend.” Goldman co-chaired the search committee and opposed Dake’s candidacy. He reported that Dake performed poorly in interviews, lacked academic administrative experience, exhibited overconfidence, and faced prior allegations of unethical billing and research practices. Goldman told Robbins that he believed the hiring process was compromised and that selecting Dake would be a serious mistake.
After Robbins selected Dake for the position in March 2018, he told Dake that Goldman had opposed his candidacy. Robbins also told Dake that Goldman’s husband, DeFrancesco, held an executive position at UAHS and that Dake had the authority to fire him.
After assuming his role, Dake told DeFrancesco that he was fired and needed to reapply for his position, though no formal termination occurred at that time. Dake later refused to promote DeFrancesco to a role whose duties he was already performing. Dake told DeFrancesco that, now that his husband had left the University, he had a “decision to make.” DeFrancesco alleged that Dake undermined him in meetings with senior staff, ignored him, and bypassed him by communicating directly with his subordinates. Dake formally terminated DeFrancesco effective June 30, 2019.
In January 2020, DeFrancesco filed a lawsuit in the U.S. District Court for the District of Arizona against the Arizona Board of Regents and Robbins and Dake in their individual capacities. DeFrancesco alleged that Robbins and Dake retaliated against him in violation of the First Amendment based on his husband’s protected speech. He also alleged that they harassed and fired him because of his sexual orientation, in violation of the Equal Protection Clause and Title VII.
Robbins and Dake filed a motion to dismiss the case. They argued that DeFrancesco failed to state a First Amendment claim and that qualified immunity shielded them from liability. The district court granted the motion. It found that the First Amendment did not clearly prohibit retaliation against a public employee based on a relative’s speech and that Goldman’s statements were not protected because he spoke in his official capacity. The district court dismissed all claims, including the equal protection and Title VII claims. DeFrancesco appealed.
In January 2023, the Ninth Circuit affirmed the dismissal of the equal protection and Title VII claims. It held that DeFrancesco had not plausibly linked his sexual orientation to his termination. However, the Ninth Circuit reversed the denial of leave to amend the First Amendment claim and remanded the case for further proceedings.
In March 2023, DeFrancesco filed a Second Amended Complaint. He alleged that Goldman, in his personal capacity, reported corruption and cronyism in the hiring process for the UAHS Senior Vice President role. He claimed that Robbins and Dake retaliated against him because of that speech.
Robbins and Dake again moved to dismiss the case. The district court granted the motion. It held that Goldman’s speech qualified as citizen speech on a matter of public concern. However, it found no clearly established law, that recognized a First Amendment retaliation claim based on a spouse’s protected speech. The district court ruled that Robbins and Dake were entitled to qualified immunity. DeFrancesco appealed.
The Ninth Circuit affirmed the district court’s dismissal. It applied the two-step qualified immunity test, which asks: (1) whether the plaintiff alleged facts that make out a violation of a constitutional right, and (2) whether the right was clearly established at the time of the challenged conduct. The Ninth Circuit concluded that Robbins and Dake were entitled to qualified immunity because the law in June 2019 did not clearly prohibit the type of retaliation DeFrancesco alleged. It declined to decide whether the First Amendment protects public employees from retaliation based on a relative’s speech.
The Ninth Circuit recognized that the Second, Sixth, and Eighth Circuits had acknowledged or assumed that the First Amendment could bar retaliation based on a family member’s speech. It also noted that several district courts in the Ninth Circuit had allowed similar claims to proceed. However, it found no binding precedent or robust consensus sufficient to put the constitutional question “beyond debate.”
The Ninth Circuit affirmed the dismissal of DeFrancesco’s First Amendment claim.
DeFrancesco v. Robbins (9th Cir. May 7, 2025, No. 23-16147) 2025 U.S. App. LEXIS 10985.