2nd Circuit rejects whistleblowing custodian’s appeal

Monday, February 14, 2011

A former custodian who warned school officials about possible asbestos in a gymnasium lost his appeal before the 2nd U.S. Circuit Court of Appeals.

In 2003, while working as head custodian at Somers Central High School in Lincolndale, N.Y., Norman Morey received a phone call about a mass that had fallen onto the gymnasium floor. Morey feared that it might be asbestos and warned school administrators. The result was that Morey lost his job — supposedly for reasons unrelated to his asbestos report. However, Morey had never been disciplined before voicing his concerns about asbestos.

In March 2010, a federal district court granted the school officials summary judgment, finding that Morey’s speech was job-duty speech within the meaning of the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos.

Under Garcetti, public employees have no First Amendment protection — even for whistleblowing — when they make statements as part of their official job duties.

Morey appealed to the 2nd Circuit, which affirmed the lower court in its Feb. 9 decision in Morey v. Somers Central School District.

“The district court correctly concluded that, on the evidence of record, any reasonable jury would be required to find that Morey’s speech was made pursuant to his official duties,” the appeals court wrote. “As head custodian, Morey was responsible for overseeing the general cleaning and upkeep of the school building.”

Morey had argued that by continuing to warn about possible asbestos, he had removed his speech from the job-duty category. The appeals court was not convinced: “That Morey continued to press his concerns about asbestos communication, even after supervisors told him to leave the matter alone, does not change our analysis.”

The decision continues a trend in the lower courts to apply Garcetti broadly, even to employees who speak out on public-safety issues.


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