No First Amendment Protection For Safety Complaint Made Through Chain Of Command

As far as the public sector workplace is concerned, Garcetti v. Ceballos, 547 U.S. 410 (2006) is without doubt the most impactful constitutional law case in the last several decades. In Garcetti, the Supreme Court changed years of jurisprudence by holding that if a public employee engages in speech arising out of his/her job, the speech has no free speech protections.

Hundreds of lower court opinions have followed in the wake of Garcetti, and almost all find a wide variety of speech unprotected. Courts have held, for example, that there are no free speech protections for cooperating in a criminal investigation related to the job, testifying truthfully in an internal affairs investigation, and raising concerns about operational issues. While employees in a union environment might have the right to challenge discipline for such speech through the filing of a grievance or a civil service appeal, Garcetti eliminated what often was the most meaningful remedy – a civil rights lawsuit.

And so it was in the case of Enid Santiago, a probationary police officer with the Port Authority of New York and New Jersey. On October 6, 2009, Santiago was assigned to work outside the Lincoln Tunnel at Post 24, where she was responsible for directing vehicles too tall for the tunnel to turn around in a nearby parking lot. Prior to that date, she had successfully extricated at least ten over-height vehicles from the Tunnel’s entrance.

Shortly after midnight, Santiago responded to an alarm that an over-height truck was heading toward the entrance of the Tunnel. While Santiago attempted to assist the truck driver in turning around the truck, a “bridge agent” for the Authority appeared and began to interfere by giving instructions to the driver. Santiago told the bridge agent to stop interfering. She then went to stop incoming traffic so that the truck could complete the turnaround with her further guidance.

At that time, she saw the bridge agent gesturing to the driver in a manner that suggested the driver continue moving. Before she could give her instructions, the truck struck a parked vehicle. Santiago and the bridge agent then got into an argument and Santiago called for additional police officers.

Santiago completed a motor vehicle accident report and another document described simply as a “handwritten report,” a type of filing that officers can use to report anything out of the ordinary. Santiago’s handwritten report complained of the bridge agent’s interference with police operations, behavior which Santiago called “unacceptable and harmful to the public.”

The ensuing investigation concluded that Santiago was responsible for the accident. It was further determined that Santiago had been dishonest during the investigation, and her probationary job was terminated. That firing occurred one day before her probationary period was set to end.

The federal Third Circuit Court of Appeals rejected Santiago’s claim that the completion of the handwritten report was constitutionally protected. The Court found that because of Garcetti, even if Santiago were fired in retaliation for completing the report, her constitutional rights would not have been violated as the completion of the report was part of her job duties.

The Court observed that “by the very nature of her position, Santiago was expected to report public safety problems. It is, of course, expected that a police officer will report risks to public safety up the chain of command. That would be particularly true when the risk is caused by another employee of the government agency.

“Santiago repeatedly argues that filing the handwritten report was protected speech because it was not required. But the filing of the report is still properly seen as being within her ordinary duties, even if it was not mandatory. In Garcetti itself, the plaintiff sent an internal memorandum to his supervisors that was pursuant to his job responsibilities, but not strictly required. Similarly, here, Santiago had a responsibility to ensure public safety, especially regarding traffic in and around the Lincoln Tunnel, even if she was not strictly required to file a handwritten report as part of carrying out that responsibility. Therefore, her attempt to have this case turn on whether the handwritten report was required by a formal rule is, on these facts, unsupportable.

“Also, Santiago did not speak to the public, but directed her speech up the chain of command. While the audience is certainly not a dispositive factor, it is an important one. Third, the report was prepared while Santiago was on duty. Fourth, and finally, in deciding whether preparing and submitting the handwritten report was part of Santiago’s ordinary job responsibilities, we consider the fact that nearly every Port Authority employee who witnessed or responded to the accident ultimately filed a handwritten report.”

Santiago v. New York & New Jersey Port Authority, 2017 WL 1437196 (3d Cir. 2017).