11th Circuit panel divides over application of Garcetti

Wednesday, June 3, 2009

 

In a recent panel ruling by the 11th U.S. Circuit Court of Appeals rejecting retaliation claims by two former Georgia county sewer inspectors, the majority opinion and the dissent interpreted the Supreme Court’s public-employee speech decision Garcetti v. Ceballos (2006) in fundamentally different ways.

 

With Garcetti, the high court changed the legal landscape with respect to public-employee First Amendment jurisprudence by ruling that “when public employees make statements pursuant to their official job duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

 

This holding in Garcetti means that many public employees who blow the whistle on problems in their jobs have no First Amendment claim — if their speech is deemed to be “pursuant to their official job duties.” Before Garcetti, the courts applied the so-called Pickering-Connick test named after Supreme Court decisions Pickering v. Board of Education (1968) and Connick v. Myers (1983). Under this test, courts first determined whether an employee’s speech touched on a matter of public concern or importance. If it did not touch on matters of public concern, the employee lost. If it did address matters of public concern, the courts would then balance an employee’s free-speech rights against employers’ right to an efficient workplace, free of disruptions.

 

Garcetti now forces employees to clear an initial hurdle before proceeding to the Pickering-Connick analysis. The employees must show that their speech was not made pursuant to their official job duties. It was this difference in interpretation that determined the legal outcome for Daisy Abdur-Rahman and John Walker, two former inspectors with the water and sewer department in DeKalb County.

 

In August 2004, Abdur-Rahman and Petty began working as inspectors in the department’s compliance unit. Their immediate supervisor, Chester Gudewicz Jr., asked the two inspectors to write ordinances for the county about the disposal of fat, oil and grease. The specific job duties at that time did not include reviewing data about sanitary-sewer overflows (SSO).

 

However, Abdur-Rahman and Petty asked for the overflows data. Their supervisors then told the two inspectors that they were “ruffling too many feathers.” In early 2005, the department expanded the job duties of the inspectors and asked them to determine whether grease might be the cause of the sanitary-sewer overflows. During their investigation, the inspectors expressed concerns that overflows were not being reported to state authorities.

 

Meanwhile in January 2005, Gudewicz recommended that both inspectors be terminated for poor job performance. John Walker, a higher-level supervisor, approved the recommendation and the employees were terminated in March 2005. The employees filed an administrative complaint with the Department of Labor the next month, alleging a violation of a whistleblower provision of the Clean Water Act.

 

In January 2007, the former inspectors sued the two supervisors in federal court, alleging a statutory violation under the Clean Water Act and a constitutional claim under the First Amendment. The inspectors contended that they were terminated in retaliation for their protected speech, including the reporting of sewer overflows.

 

A federal district court rejected both claims. On appeal, the 11th Circuit affirmed the lower court’s ruling on May 11 and rejected the inspectors’ claims in Abdur-Rahman v. Walker.

 

The majority denied the First Amendment claim squarely because of Garcetti, writing: “The inspectors’ reports about sewer overflows concerned information they performed for the purpose of fulfilling their assigned job duties.”

 

“Although researching sanitary sewer overflows initially was not part of the job duties of the inspectors, the inspectors requested and reviewed data on sanitary sewer overflows as part of their efforts to discharge their enumerated job responsibilities related to the fat, oil and grease ordinances of DeKalb County,” Judge William H. Pryor Jr. wrote for the majority.

 

Pryor also seized on language from the Garcetti decision when the high court described official job-duty as “speech that owes its existence to a public employee’s professional responsibilities.” Pryor reasoned that even if the inspectors were not required to go as far as they did in reporting about sanitary-sewer overflows, the speech “owed its existence” to their job duties.

 

Pryor rejected the inspectors’ claims that at least parts of their reports about overflows and bioremediation were outside of their official job duties. “We cannot separate the statements the inspectors made from the official responsibilities to which those expressions were made,” the court wrote.

 

However, Judge Rosemary Barkett had a much different Garcetti analysis in her dissent. She first noted that even the Supreme Court in Garcetti said that the First Amendment protects some job-related expression and that public employees are often in the best position to report on issues related to their employment.

 

She also emphasized that much of the inspectors’ speech went beyond their official job duties. She wrote that “the employees in this case had no official professional duty to report SSOs to state or federal environmental authorities, to post or remediate SSO sites, or to complain about the failure to do any of these things, but did so anyway out of concern for the health and safety of the community.”

 

Barkett also criticized what she termed the majority’s overly broad application of the “owes its existence to” language in Garcetti describing official job-duty speech: “The essence of the majority opinion, with its emphasis on Garcetti’s phrase ‘owes its existence to’ appears to be that speech about anything a public employee learns about in the course of performing his job … is unprotected, because the speech would not exist without the job activity,” she wrote.

 

Barkett explains that the “owes its existence” language appears in one paragraph in the Garcetti opinion alongside a sentence that provides that employers can control employee speech that it has “commissioned or created.” Read in context, according to Barkett, “speech owes its existence to an employee’s professional responsibilities when the employer has ‘commissioned or created it.’”

 

Barkett reasoned that the county and the county supervisors did not commission the inspectors to complain about the failure of county officials to properly report sewer overflows to the Georgia Environmental Protection Division and similar complaints.

 

“I believe the record is clear that the employees were not speaking pursuant to their official job duties, but rather as concerned citizens, when they complained about the reporting, posting and remediation of the jobs,” she wrote.

 

Barkett’s dissenting opinion could increase the chances that the full 11th Circuit may review the three-judge panel decision. Her dissenting opinion also may signify — along with Judge J. Harvie Wilkinson’s concurring opinion in Andrew v. Clark — that more federal appellate judges are disagreeing with very broad applications of Garcetti.

 

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