LA CAÑADA FLINTRIDGE - A computer administrator at NASA's Jet Propulsion Laboratory who was laid off last week plans to add retaliation charges - and a possible free speech violation claim - to a pending discrimination suit against his former employer, an attorney said Wednesday.
David Coppedge, a specialist and systems administrator who worked on NASA's Cassini mission at the Laboratory since 1997, was terminated on Jan. 24.
A well-known figure among proponents of "intelligent design" - the proto-scientific strain of creationism that attributes life and the universe to the hand of an intelligent being - Coppedge writes the blog "Creation-Evolution Headlines."
He filed suit with the Los Angeles Superior in April of last year, claiming he was demoted at JPL for propagating his beliefs at work, citing protection under the California Fair Employment and Housing Act.
A JPL spokeswoman said Coppedge's "suit is without merit."
But while the original lawsuit rested on claims of discrimination under California's Fair Employment and Housing Act, Coppedge's legal team is now considering a new tactics - including taking a page from the Supreme Court's Jan. 19 in NASA v. Nelson.
Two weeks ago the high court ruled against JPL employees who sought to terminate background checks at the facility. The employees claimed those checks violated their civil rights.
"David was terminated and the NASA v. Nelson decision came down...which changes the case in material ways," said Coppedge's attorney, Bill Becker.
Becker said he would seek to amend the complaint within the next two weeks to include a wrongful termination claim - adding that a First Amendment claim might also be on the table.
"We're also considering a First Amendment violation claim based on language contained in the Supreme Court's (NASA v. Nelson) decision, which characterizes contract employees at JPL as no different from government employees at NASA's other federally funded research centers," Becker said.
According to Becker, the new claims would use some of the Nelson language and/or draw on other Supreme Court decisions that could potentially allow Coppedge to sue JPL as a federal agency.
But UCLA law professor Eugene Volokh says NASA v. Nelson would likely be irrelevant in such a case, unless it can be proven that Coppedge's firing was a government action.
"The real question is who is making the decision - that was clear in (NASA v. Nelson), but not so clear here. Just because a research center is federally funded is not enough to make it a government actor," Volokh said of JPL, which is managed by the California Institute of Technology for NASA.
"If there's no government action here, if it's done by private contractor, the First Amendment doesn't apply."
Rather, Volokh said, state statutes provide some protection for political activity of employees - which as been broadly interpreted to include a variety of expression, and could potentially be extended to include controversial issues like intelligent design.
On the other hand, said Volokh, "If he can show that the reason they fired him was because they inferred something about his religious beliefs... then in that case, he would have a plausible religious discrimination claim."
JPL claims Coppedge was let go in a round of routine layoffs related to Cassini's budget.
"The spacecraft operational workforce on Cassini has gone down 40 percent since its prime mission ended, and it's currently in its second extended mission," said JPL spokeswoman Veronika McGregor. "During that time, this is a natural attrition of that workforce."
Becker rejected JPL's explanation Wednesday, calling the termination retaliation for Coppedge's decision to contest an earlier demotion.
Becker said JPL accused Coppedge of "pushing his religion on people simply by discussing and handling out DVDs on intelligent design," and argued that budget cutbacks should not have affected a 14-year employee with "an outstanding record."
The former JPL employee is currently getting some public relations help from the Discovery Institute, a conservative lobbying organization with right-wing Christian ties best known for their promotion of intelligent design.
"We're assisting in letting people know what's happening to him and stirring public outrage," said Discovery Institute spokeswoman Anika Smith.
Gary Williams, a professor at Loyola Law School, previously pointed out that courts tend to view intelligent design as a religious, not a scientific belief. He said that protections for religious activity have not been read to include speech during work hours.
Even if intelligent design isn't viewed as religious belief, employers still have the right to restrict what their employees discuss in a work context, Williams added.
"JPL does permit its employees to talk about intelligent design," argued Discovery Institute attorney Casey Luskin. "There are numerous examples of employees being encouraged to criticize intelligent design - and only the pro-intelligent-design view point is being shut down."
Becker is currently engaged in a separate lawsuit against the California Science Center in Los Angeles which also claims First Amendment violations related to intelligent design.