Workers can be punished for speaking up

The following article appeared in the August 9, 2010 edition of the Connecticut Law Tribune.

Ruling limits First Amendment protections for public sector employees
By Mark Dumas

Public sector employees are often bold in their criticism of superiors, particularly where unions provide an inflated sense of job security. But when criticism becomes disruptive, supervisors often want to “throw the book” at cantankerous employees. Although disciplining an employee who is critical to the point of disruption may result in better government, such actions have historically risked violating state and federal law that protects government employees from retaliation for speech protected by the First Amendment. After all, wasn’t the First Amendment created to allow criticism of public officials?

Two relatively recent cases, Garcetti v. Ceballos, 547 U.S. 410 (2006), and Weintraub v. Board of Education, 593 F. 3d 196 (2d Cir. 2010), help answer that question in way that has made it easier for government employers to defend First Amendment retaliation cases. Ironically, one of the decisions involves an employee who literally had a book thrown at him.

Matters of Public Concern

Government employees’ First Amendment rights are protected in Connecticut by a line of federal cases reaching back to the 1960s and by Connecticut General Statutes § 31-51q. Because interpretation of the state statute relies heavily on federal case law, federal standards often dictate how a court will decide a First Amendment retaliation case even if the claims are based on the state statute.

For nearly forty years, federal courts decided government employees’ First Amendment retaliation claims by weighing the interest of the employee in speaking on “matters of public concern” against the employer’s interest in operating the workplace efficiently and effectively. The problem for public sector employers was that the first part of this balancing test — whether the speech was on a matter of public concern — could easily be answered yes for almost any critical speech related to a government employer.

Courts continued to add layers and exceptions to what became known as the Pickering-Connick test, but balancing tests can be frustrating because they can result in arbitrary and unpredictable decisions. Although the Pickering-Connick test was engaging for attorneys, it was maddening for employers. The U.S. Supreme Court partially resolved this problem in Garcetti v. Ceballos.

The “Official Duties” Test

In Garcetti, the Supreme Court sharply narrowed the scope of the Pickering-Connick test by creating a bright line rule that avoids any First Amendment scrutiny in most employee discipline cases. As a result, courts will not even reach the issue of whether employee speech is a matter of public concern if the speech at issue was pursuant to an employee’s “official duties.”

The plaintiff in Garcetti, Richard Ceballos, was a Deputy Assistant District Attorney in Los Angeles assigned to a case where the defendant planned to challenge a critical search warrant. Ceballos conducted his own investigation and concluded that the warrant contained serious misrepresentations. He reported his concerns to his supervisors and was subsequently reassigned to a different courthouse and denied a promotion. Ceballos then filed a lawsuit claiming that he was retaliated against because of the critical report in violation of his First Amendment rights.

In a 5-4 decision, the Supreme Court ruled that the Los Angeles County District Attorney’s Office did not violate Ceballos’ First Amendment rights. The court held that, since it was part of Ceballos’ job to report concerns about the validity of search warrants, he was speaking as an employee and not as a citizen for First Amendment purposes. Because of this, he was still subject to employer discipline regarding the report. As the court noted, “When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.”

One prominent whistleblower attorney described this decision as “the single biggest setback for whistleblowers in the courts in the past 25 years,” but it was unclear how the new “official duties” test would be applied in the Second Circuit, which includes Connecticut, until earlier this year.

Garcetti in the Second Circuit

While several courts of appeal addressed Garcetti in depth shortly after the opinion was issued, the Second Circuit was a relative late comer to the Garcetti debate. Although the case was cited in passing in dozens of decisions, the circuit’s first significant analysis of Garcetti came earlier this year in Weintraub v. Board of Education, a case involving a public school teacher in Brooklyn, New York.

David Weintraub was a fifth grade teacher in New York’s P.S. 274. Three months into his first year, a student threw a book at him. Weintraub reported the incident to his immediate supervisor, but the assistant principal returned the student to the classroom without any punishment. The next day, the student threw more books at the first year teacher. Weintraub threatened to file a grievance if the student was not disciplined. The student was not punished and Weintraub filed a grievance. He subsequently received negative classroom evaluations, was eventually terminated, and then filed a lawsuit alleging that he was retaliated against for criticizing his assistant principal and for pursuing the grievance.

Before the Second Circuit, Weintraub argued that Garcetti’s “official duties” test should be limited to speech that was required of an employee. Since the board of education’s policies, handbooks, and his job description did not include any mandate that he file a grievance about how the assistant principal administered student discipline, he argued that his criticism of his supervisor should be protected.

In a 2-1 decision, the Second Circuit rejected his argument, relying in part on language from Garcetti stating that “an employee’s written job description is neither necessary nor sufficient” to determine the scope of an employee’s official duties for First Amendment purposes. The Second Circuit then created what is arguably an even broader standard than required by Garcetti by holding that a government employee’s speech that is “in furtherance of” his core duties is not protected by the First Amendment. Apparently “the book” didn’t even matter.

Play it Safe

Although Garcetti and Weintraub signal an important shift in First Amendment retaliation cases that favors public sector employers, local governments should still proceed with caution in cases involving employee speech. Both cases were decided by the smallest possible majorities — a single judge — which suggests that future cases will create exceptions and limitations on the broad defense that Garcetti and Weintraub have created. Although bright line rules like the “official duties” test may provide more clarity and peace of mind for disciplinary decisions, they also tend to fade over time. Regardless of how bright the line is, you are best served by avoiding it.

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