2nd Circuit gives short shrift to NYC teacher’s retaliation suit
A federal appeals court rejected the appeal of a New York City art teacher who had alleged that she was retaliated against for complaining about what she termed unsanitary conditions in her classroom. The appeals court rejected her First Amendment claims, reasoning that she simply engaged in unprotected employee speech rather than protected citizen speech.
Yvonne T. Massaro teaches art at Edward R. Murrow High School in New York City. In December 2005, she informed school officials that she had contracted scabies — a contagious skin disease caused by exposure to mites. She told the officials that she believed the cause was unsanitary conditions in her classroom.
She filed an accident report with the city’s department of education and orally complained several times to school administrators. She later sued, contending department of education and school officials had retaliated against her in several ways, including by canceling her TV-production class and placing more special-ed students in her class.
In June 2011, a federal district judge dismissed her lawsuit, finding that her speech was unprotected job-duty speech within the meaning of the U.S. Supreme Court’s decision in Garcetti v. Ceballos (2006). In that decision, the high court ruled 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.”
Massaro appealed to the 2nd U.S. Circuit Court of Appeals. On May 31, a three-judge panel affirmed the lower court in a summary order. The appeals court agreed with the district court that Massaro spoke as an employee instead of as a citizen when she made the complaints about her classroom.
Massaro pointed out that her job duties as a teacher did not require her to report health hazards. But the appeals court was not persuaded, reasoning that a public employee’s speech can be classified as official job-duty speech even if it is not included in a job description.
The appeals court added that the lower court’s conclusion that Massaro spoke as an employee “is supported by the facts that she aired her complaints only to several school administrators rather than to the public, and that most of those complaints were made in the context of internal safety and medical absence-related forms.”
The appeals court seemingly ignored the U.S. Supreme Court’s 1979 public-employee decision Givhan v. Western Line Consolidated School District, in which the Court reinstated a public school teacher’s First Amendment claim when she spoke about racial discrimination solely in her principal’s office.
Furthermore, a teacher’s complaints about alleged unsanitary classroom conditions are a matter of great importance not only to school employees but also to students and parents. If a teacher developed scabies from the classroom, theoretically students could also.
Massaro’s claim deserved a closer look by the 2nd Circuit. Instead, it received short shrift and the result is that public school teachers who complain about health conditions arguably have little to no First Amendment free-speech rights.