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Column: Garcetti v. Caballos and Public Employee Speech in the Second Circuit (New York Law Journal)

By Christopher Dunn — For litigators and judges, a United States Supreme Court decision that appears to depart from well-established law can present a significant challenge. A current example of this arises from Garcetti v. Cabellos, a May 2006 decision in which the Court seemed to substantially narrow the First Amendment rights of public employees.

The Second Circuit, which often has been supportive of public employees’ free speech rights, is just now confronting the impact of Garcetti. Earlier this month it issued its first published opinion in a case that squarely presented a Garcetti issue, and just one day earlier the court heard oral arguments in an expedited appeal in a second case that arose from a substantial public controversy and that has Garcetti at its core. The court’s actions in these cases suggest it may be in no rush to embrace Garcetti.

Public Employee Speech Rights and Garcetti

Before Garcetti, the law governing the First Amendment protections afforded to public employees was reasonably settled in light of the Supreme Court’s decisions in Pickering v. Board of Education of Township High School District 205, Givhan v. Western Line Consolidated School District, Connick v. Myers, Rankin v. McPherson and Waters v. Churchill.

As a group, these cases established that a public employee enjoyed First Amendment protection for speech that was on any topic of public concern, meaning “any matter of political, social, or other concern to the community.” Whether the speech was undertaken inside or outside the workplace made no difference; indeed, the speech was protected even if made in a private conversation with a fellow employee.

However, speech “upon matters only of personal interest” was not protected. With respect to speech that was on a matter of public concern, the First Amendment protections yielded only if the employer demonstrated it took action against the employee out of a legitimate concern for actual or anticipated disruption and the court concluded that, on balance, that concern outweighed the value of the speech.

Garcetti arose out of actions by an attorney in the Los Angeles District Attorney’s Office who believed a police officer had engaged in misconduct in securing a search warrant. After he wrote a memorandum setting out his concerns and took other actions, he was retaliated against, prompting a lawsuit that ended up in the Supreme Court.

In an opinion by Justice Kennedy, the Court ruled against the employee. As Justice Kennedy noted, the Court long ago had adopted the formulation that Pickering protections encompassed speech by a public employee “as a citizen upon matters of public concern.” The issue presented by Garcetti was whether a public employee who in the course of his or her duties spoke on a matter of public concern was speaking in some capacity other than as a “citizen.”

According to Justice Kennedy, the requirement that speech be in the employee’s capacity as a “citizen” means the employee must not be speaking pursuant to his or her official duties: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

And because it was part of Ceballos’ duties in the District Attorney’s Office to write memoranda like the one he had, Ceballos was not speaking as a “citizen” when he used the memorandum to bring to his supervisor’s attention concerns about police misconduct.

An Initial Encounter with Garcetti

On February 6, the Second Circuit issued its first published opinion in a case that squarely presented an issue about the impact of Garcetti on public-employee speech rights. The plaintiff in Ruotolo v. City of New York was an NYPD sergeant who was assigned to a Bronx precinct when press reports revealed possible health risks at the precinct from underground storage tanks at the facility.

As the precinct’s training and safety officer, Sergeant Ruotolo was assigned the task of surveying employee illnesses and deaths that might have been related to the reported environmental hazards. When he submitted a written report detailing a number of serious health problems at the precinct, supervisors allegedly retaliated against him, and he ultimately filed suit in the Southern District.

Two weeks before trial, the Supreme Court handed down Garcetti, dooming Sergeant Ruotolo’s claim that retaliation for his report violated his First Amendment rights under Pickering and its progeny. As an alternative, he argued that, beyond the retaliation for the report, he also had been retaliated against for having filed his lawsuit (something he had alleged in an amended complaint). Since Sergeant Ruotolo had not been acting in any official capacity when he filed the suit, he argued, this additional claim afforded him a way to circumvent Garcetti.

Judge Sidney Stein rejected the argument, concluding that the lawsuit could not be protected by the First Amendment if the submission of the report that prompted the lawsuit was not protected in light of Garcetti. According to Judge Stein,
after Garcetti, for a lawsuit adequately to charge a First Amendment retaliation claim, the lawsuit must be predicated on speech made by a public employee as a citizen, and not pursuant to his or her official duties. To hold otherwise — that filing a lawsuit alleging retaliation for non-protected speech would give rise to a First Amendment complaint — would defy logic, allowing a plaintiff to bootstrap a non-actionable objection to legitimate employer discipline into a valid First Amendment claim.

Ruotolo then appealed and, oddly, the Second Circuit chose not to take on this analysis. Rather, in an opinion written by Chief Judge Jacobs and joined by Judges Leval and Sotomayor, the court claimed to take a different tack: “We need not decide whether Ruotolo’s lawsuit amounts to speech by a ‘citizen’ rather than a ‘public employee’ within the meaning of Garcetti; a simpler ground is available because in any event that speech is not ‘on a matter of public concern.’”

In support of this, the court asserted that Ruotolo’s lawsuit sought only to redress personal grievances relating to the terms and conditions of his employment with the following explanation:

As to the personal nature of Ruotolo’s grievances, the Complaint alleges that Ruotolo wrote the October 1999 Report because he was assigned to do so as part of his job, and that the Report led to the retaliatory acts affecting Ruotolo alone. The acts of retaliation against Ruotolo bear upon the circumstances and perquisites of his employment, such as reassignment, transfer, time off, and discipline… The relief sought is almost entirely personal to Ruotolo, including compensatory damages and an injunction relating to Ruotolo’s employment records.

Despite the court’s suggestion to the contrary, it is difficult to understand this analysis as being anything other than one accepting that Garcetti forecloses Ruotolo’s argument that the filing of his lawsuit could be separated from his filing of the report about the precinct’s health risks. This is so because virtually all public-employee speech cases under Pickering and its progeny — including every one of the Supreme Court’s cases — involve claims by employees about retaliation affecting only the terms and conditions of their individual employment.

That the retaliatory acts alleged in the complaint were suffered by Sergeant Ruotolo alone cannot itself be the basis for concluding his lawsuit was not speech on a matter of public concern, as the Supreme Court has never suggested that the “public concern” prong of the Pickering analysis looks at the specific forms of retaliation suffered by the employee or at the specific relief sought by the employee. Rather, the inquiry has always focused on the employee’s speech.

The more plausible interpretation that excludes Garcetti from the court’s analysis would view the court as holding that in the unusual instance in which a public employee claims retaliation for filing a lawsuit, any alleged pre-filing retaliation is irrelevant for purposes of the post-filing free-speech claim. Thus, for Sergeant Ruotolo, the submission of his report – regardless of its status in light of Garcetti — simply had no bearing on his surviving claim for post-filing retaliation. Unfortunately, the court’s language and analysis are not very clear on this point.

What is clear, however, is that the court did not want to take on the Garcetti issue directly. It may not be able to avoid that in a case now pending before it.

Garcetti and the Muslim School Controversy

On February 5, the day before Ruotolo was released, the Second Circuit heard oral arguments in an expedited appeal arising out of the New York City Department of Education’s February 2007 announcement that it would open a school specializing in the study of Arabic language and culture. This prompted a public outcry amongst certain advocates and conservative press outlets that engulfed Debbie Almontaser, whom the Education Department had named as the school’s interim principal.

In early August 2007 an advocacy group that had formed to stop the school accused Almontaser of being connected to a group that had distributed t-shirts printed with “Intifada NYC”. When the New York Post submitted written questions to the Education Department for Ms. Almontaser to answer about the school and the group to which she was allegedly connected, Department officials directed that she participate in a telephone interview, which took place with Department officials on the line. During the interview she was asked about the meaning of the word “intifada,” and the paper used portions of her answer in a story headlined, “City Principal Is Revolting.” This prompted a series of events that resulted in Almontaser’s forced resignation as the interim principal, her application for appointment as the permanent principal, the Department’s rejection of that application, and her filing suit in the Southern District.

This case also went to Judge Stein, who, after expedited discovery and an evidentiary hearing, issued an oral decision on December 5 denying Ms. Almontaser’s request for a preliminary injunction barring the City from filling the principal’s position. The central issue for Judge Stein was the impact of Garcetti on her claim, and he concluded that it foreclosed it. As he explained, “… I conclude that Ms. Almontaser was speaking to the New York Post in her capacity as interim acting principal of [the school] and not as a private citizen and that she was giving that interview to the Post pursuant to her official duties.”

For him, this was dispositive: [T]he key issue in Garcetti is not whether an employee’s speech was internal to the place of employment or even whether that speech was directed to the media or the public, nor that the speech may address a matter of public concern. The focal point of any inquiry in regard to Garcetti is whether that speech was made pursuant to an employee’s official duties within the rule of Garcetti. And here, the plaintiff’s comments to the Post were manifestly made in her official capacity.

Ms. Almontaser appealed, and this Judge Stein’s view of Garcetti’s scope may not be embraced by the Second Circuit if the oral arguments earlier this month are any indication. In those arguments, the panel members reportedly were quite aggressive in challenging the City’s defense of its actions in the case, particularly resisting the notion that the City could insist that Ms. Almontaser speak to the press and then punish her for what she said.

How this fits into the Garcetti analysis is not clear. One way in which the court could distinguish Garcetti would be to limit the case to those situations in which not only is the relevant speech undertaken as part of the employee’s duties but also in which the speech in question pertains to those duties. Thus, a public employee engaging in speech as part of his or her job would fall outside Garcetti in those instances where the speech in question addressed matters beyond the employee’s job. Under this approach, Garcetti might not foreclose Ms. Almontaser’s claim since it was her statements about the t-shirt and not about the school that prompted the retaliation, and those comments had nothing to do with her job responsibilities.

Looking Forward

The Almontaser case may provide a strong signal about how the Second Circuit will approach Garcetti. Given the large number of employee free-speech cases in the court, however, one can expect many more of these cases in the coming years.

Christopher Dunn is associate legal director of the New York Civil Liberties Union

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