As a recent New Jersey case shows, the Garcetti rule marches on and is alive and well. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that if a public employee engages in speech (e.g., writes or says something) as part of the job, the First Amendment gives the employee no protection, and the employer is free to retaliate against the employee even if the speech is completely true. Garcetti has resulted in hundreds of public safety employees losing their free speech claims and many times their jobs.
And so it was with Walter Young, a lieutenant in the Irvington, New Jersey Police Department. Young took issue with Police Chief Michael Chase’s alleged improper sexual relationships with subordinates. Young filed an internal affairs complaint alleging that the reason the Chief subjected him to disciplinary action for false allegations by an Officer Whiting, was because the Chief maintained a romantic relationship with Officer Crawford, Whiting’s sister. Young also complained that a fairly new female police officer took an island vacation with the Chief and upon returning, was promptly promoted to a police detective.
On March 14, 2010, Sergeant Stewart Townsend informed Young, who was the desk supervisor on duty, that he had observed Officer Claude Maxwell sleeping on two occasions while guarding downed electrical lines. Maxwell told Townsend that he had taken a sleep aid shortly before reporting for duty. Young subsequently questioned Maxwell, placed him on sick leave, instructed Townsend to initiate a disciplinary investigation, drafted a memorandum for Oliveira explaining that an investigation had been commenced, and notified Internal Affairs that he had relieved Maxwell “due to him saying that he was tired and that he attributed that fatigue to an over the counter medication.” Young did not believe Officer Maxwell should be subjected to a reasonable suspicion drug test because there was no evidence that Officer Maxwell was using or abusing any drugs (e.g., he did not appear lethargic, agitated, or unsteady, and Townsend likewise indicated that he saw nothing unusual about Maxwell’s behavior).
Young was investigated for eight departmental disciplinary charges regarding the Maxwell incident, and was terminated. He then filed a federal court lawsuit alleging that his termination was retaliation for the internal affairs complaints he filed against the Chief, and that the complaints were protected by the First Amendment.
A federal appeals court dismissed Young’s lawsuit. The Court found that “in order to establish a retaliation claim under the First Amendment, a public employee must show that, among other things, his or her speech is constitutionally protected. A statement is protected by the First Amendment if (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement he made.
“Young did not speak as a private citizen. It was part of Young’s ordinary job duties as a lieutenant in the Irvington Police Department to file an Internal Affairs complaint stating that, inter alia, Chief of Police Chase showed favoritism to another police officer (who evidently had accused Young himself of misconduct and was one of Young’s own subordinates) because of a sexual relationship between the Chief of Police and the officer’s sister. In any event, without more, a complaint about intradepartmental favoritism falls squarely within the realm of personal grievances – as opposed to speech implicating a matter of public concern. In fact, it appears that Young complained about Chase’s relationships as part of his own defense to a disciplinary action brought against Young himself.”
Young v. Township of Irvington, 2015 WL 6123228 (3d Cir. 2015).