A screen grab from the Twitter account of Juli Briskman, who is suing her former employer. Briskman claims she was fired over her expression of disapproval as Trump's motorcade passed her.

The Virginia-based company that fired an employee who was captured in a viral photo flipping her middle finger at President Donald Trump's motorcade is rebuffing her claims in a lawsuit that says she was unlawfully terminated.

Akima LLC, a federal government contractor, fired Juli Briskman in October 2017, only days after she was photographed giving a middle finger to the Trump motorcade as it passed by her on a Saturday cycling outing. A journalist traveling with the motorcade shot the image, and the photo quickly rocketed across the web and national television. Briskman posted the photo on her Twitter and Facebook pages.

Akima claimed Briskman's gesture violated the company's social media policy. Briskman, formerly a marketing analyst at Akima in charge of social media, sued the company in Virginia state court in April. Her complaint, filed by the Geller Law Group and Protect Democracy, said Akima fired her because it feared any U.S. government retaliation would cost the company lost contracts.

Briskman's fleeting moment of protest along a Virginia roadway tees up legal questions over the scope of protections for employee speech. A hearing is scheduled for June 29 in Fairfax circuit court.

Edward Lee Isler of the Virginia firm IslerDare, representing Akima, declined to comment.

“Akima is not a governmental entity—it is a private company,” the company's lawyers wrote in court papers asking a judge to dismiss Briskman's claims. “Therefore, Akima's termination of plaintiff's employment cannot possibly violate free speech clauses in the U.S. or Virginia Constitution.”

The Virginia Supreme Court has never identified the U.S. or Virginia constitutions as a basis for a wrongful-discharge claim, Akima's lawyers said in a court filing Friday. They further argue there is no Virginia statute supporting Briskman's wrongful termination claim. Briskman, according to Akima, has not alleged a violation of public policy that was expressly articulated in state statutes.

Briskman's lawyers contend she was forced to resign for her off-duty and “peaceful” middle-finger protest not for any violation of company policy but instead out of Akima's fear the U.S. government could retaliate against the company. Akima and affiliated companies hold multimillion-dollar contracts for defense, cyber and health work, among other areas.

“The legal question here is just the same as it would be if Ms. Briskman had been photographed attending the Women's March with a funny sign or taking a knee with military veterans as the president's motorcade passed by: Can a Virginia employer terminate an employee because the employer is afraid that the government might unconstitutionally retaliate against the employer?” Briskman's lawyers wrote in court papers.

Lawyers for Briskman, including Maria Simon and Rebecca Geller, both of the Geller Law Group, are urging the Virginia court to apply a public-policy exception to Virginia's at-will employment doctrine.

That exception “serves as a safeguard to ensure that the at-will employment doctrine is not used to undermine core Virginia public policies,” Briskman's attorneys said in a court filing. “Both federal and state constitutions give government contractors the right to engage in off-duty political speech without the fear of retaliation.”

Briskman's lawyers acknowledge employees do not have a constitutional right not to be fired by an employer for engaging in protected speech. But, they argue, “an employee does have a constitutional right not to be fired by an employer because of unlawful government retaliation for constitutionally protected speech.”

 

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