Blog: Custodian finds reporting hazards can be hazardous
Sadly, the most important types of employee speech — about safety issues in the workplace — often no longer receive First Amendment protection.
It used to be the law that employee speech about safety issues could be protected, because it touched on matters of public importance or concern. However, as a result of the Supreme Court’s 2006 decision in Garcetti v. Ceballos, such whistleblower-type speech often receives zero protection. Why? Because it's considered job-related.
In Garcetti, the Court ruled that employees have no First Amendment protection for speech made as part of their official job duties — no matter how important the speech is. The decision has laid waste to many a public employee’s free-speech claim.
Consider the example of Norman Morey, a former longtime custodian at Somers Central High School in Lincolndale, N.Y. Morey had served as head custodian of the school since 1995. In May 2003, he received a phone call that there was a “mess” in the school gymnasium. The mess turned out to be grayish-white chunks of insulation that had fallen from the ceiling to the gymnasium floor.
Morey, who had received training on asbestos, believed that the material might be asbestos. He expressed his concerns to the building superintendent and the assistant superintendent of business for the school district. Result? In September 2003, school district officials suspended Morey from his position. After a hearing, he was fired, purportedly for several charges of misconduct unrelated to the possible asbestos situation. However, Morey had never faced formal disciplinary charges in his long career until after he'd raised his asbestos concerns.
In March 2006, Morey sued the district for retaliating against him for his workplace-safety-related speech. U.S. District Judge William C. Connor refused to dismiss the lawsuit, finding that employee speech about asbestos certainly qualified as a matter of public concern. However, that judge did not consider the impact of Garcetti v. Ceballos. Connor died in July 2009.
The case was reassigned to a new judge — U.S. District Judge Paul G. Gardephe, who applied the Garcetti precedent.
“Because the record demonstrates that Morey’s speech was not made in his role as a citizen but rather pursuant to his role as head custodian at Somers Central High School, his First Amendment retaliation claim fails as a matter of law,” he wrote in his March 19 opinion in Morey v. Somers Central School District.
The ruling doesn't say whether what Morey found was in fact asbestos. What it does say is that a custodian concerned about possible asbestos exposure to students and school staff has no First Amendment protection.
We can only conclude that, as these Garcetti-related decisions pile up, public employees more and more will remain silent about potential hazards and other problems in public workplaces, rather than risk losing their jobs.