Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), “where public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Following Garcetti, dozens of courts have held unprotected by the First Amendment a variety of forms of job-related speech made by public safety employees.
Zigmund Jendrzejewski, a trooper with the Pennsylvania State Police, is the latest public safety officer to lose a free speech claim under the Garcetti rule. Jendrzejewski alleged that he suffered retaliation from the State Police for issuing citations to a Liquor Enforcement officer for speeding, and for making complaints against Liquor Enforcement officers “for violations of Department regulations and the State Vehicle Code.” The Court found Jendrzejewski’s citation writing and complaints about the conduct of the Liquor Enforcement officers employed by the State Police to be unprotected by the First Amendment under Garcetti. The Court ruled that “while the subject of the alleged unequal application of the law by the State Police to its own members and employees would certainly be a subject of public concern in Pennsylvania, Jendrzejewski’s reporting of violations of the law and regulations by State Police employees was in furtherance of his duty as a member of the State Police. Jendrzejewski alleges that he was not compelled to make these statements as a matter of his official duty, but nevertheless, he did make them in furtherance of his role as a trooper, not as a concerned citizen. Thus, Jendrzejewski has failed to sufficiently allege the facts that establish a claim of violations of his right as a citizen to speak on matter of public concern.”
The Court found on a different footing Jendrzejewski’s allegations that he was retaliated against for objecting to an internal State Police investigation of him that stemmed from his reporting of the traffic violations by Liquor Enforcement officers. As the Court analyzed it, “had Jendrzejewski addressed the matter formally along the chain of command, such a formal complaint of retaliation would appear to be within the scope of employment. Jendrzejewski’s allegations suggest that the investigation was initiated because he reported violations of the law by employees of the State Police. Further objections farther along in the investigation process would also appear to be protected speech unrelated to the fulfillment of his duties as a trooper.” Accordingly, the Court refused the State Police’s request to dismiss the second of Jendrzejewski’s retaliation claims.
Jendrzejewski v. Watson, 2009 WL 789887 (W.D. Pa. 2009).
This article appears in the May 2009 issue