In Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), the United States Supreme Court held that the First Amendment provides no protections to an employee who is disciplined for speech that occurred as part of the employee’s job. The dozens of cases since Garcetti have made it abundantly clear how far the lower courts are construing the Garcetti decision. What follows is a summary of public employee free speech cases where the Garcetti decision was applied to bar employees from bringing free speech claims.
Speech Made In The Internal Affairs Process. In Bradley v. James, 2007 WL 623563 (8th Cir. 2007), a federal appeals court held that statements made by a police officer in the internal affairs process were unprotected by the First Amendment. In the internal affairs investigation, the officer reported that his police chief had been intoxicated when responding to a call. In dismissing the officer’s lawsuit alleging retaliation for participating in the investigation, the Court found that “as a police officer, the employee had an official responsibility to cooperate with the investigation being conducted into the response to the incident. The officer’s allegations of intoxication against the Chief were made at no other time during this investigation, and thus his speech was pursuant to his official and professional duties. We cannot find that the officer spoke as a citizen, and thus he has no First Amendment cause of action based on his employer’s reaction to the speech.”
Complaints About Policies. In Goddard v. City of Albany, Georgia, 2007 WL 527991 (M.D.Ga. 2007), the director of a civic center lost her First Amendment lawsuit challenging her termination when the Court determined that the statements she was allegedly terminated for – statements about the employer’s policy concerning tickets to certain events – were made as part of her job.
Handling Of Public Funds. In Williams v. Dallas Independent School District, 2007 WL 614212 (5th Cir. 2007), the athletic director and head football coach of a public high school in Texas lost his First Amendment free speech lawsuit in which he alleged he was retaliated against for sending a memorandum to the school’s office manager and principal questioning the handling of school athletic funds. The Court reasoned that “under Garcetti, we must shift our focus from the content of the speech to the role the speaker occupied when he said it. We hold that the memoranda to the office manager and principal were written in the course of the coach’s performance of his job as athletic director; thus, the speech contained therein is not protected by the First Amendment.”
Complaints About Safety. In Posey v. Lake Pend Oreille School District No. 84, 2007 WL 420256 (D.Idaho 2007), a security specialist for the School District claimed he was retaliated against for writing a memorandum to the School District concerning the safety and security of students and staff. The Court found that the First Amendment offered no protections to the employee, reasoning that the employee “did not communicate his concerns regarding school security and safety issues to the newspapers or his legislators. The Court concludes, then, that the employee did not speak or act in his capacity as a citizen when informing School District officials of his student-related safety and security concerns, but as an employee of the School District. Therefore, pursuant to Garcetti, summary judgment is appropriate in favor of the School District.”
Internal Memoranda On Operation Issues. In Jaworski v. New Jersey Turnpike Authority, 2007 WL 275720 (D.N.J. 2007), an engineer lost his First Amendment lawsuit when a court found that a memorandum he wrote concerning the award of a bid on a contract was unprotected by the First Amendment. The Court concluded that the engineer “was not speaking as a citizen when he authored the memorandum, but rather was acting pursuant to his official duties. In accordance with the Supreme Court’s ruling in Garcetti, this activity is not protected by the First Amendment.”
Complaints About Misuse Of Funds. In Richards v. City of Lowell, 2007 WL 293583 (D.Mass. 2007), the fiscal manager for a workforce investment board lost his free speech lawsuit when the Court concluded that complaints he made about the allegedly wrongful deposit and use of funds were unprotected by the First Amendment. The Court found that all of the complaints made by the employee were pursuant to his job, and thus were unprotected under Garcetti.
Charges Of Sexual Harassment. In Chambliss v. Illinois Department of Corrections, 2007 WL 518774 (S.D.Ill. 2007), a lawsuit was filed before the Garcetti decision by a female corrections officer alleging that she had been retaliated against for reporting sexual harassment. In the wake of Garcetti, the corrections officer simply gave up on the claim, stipulating that because the sexual harassment complaints were made in the course of her employment, they were unprotected by the First Amendment.
The article appears in our April 2007 issue.