Blog: Garcetti derails another public-employee lawsuit

Wednesday, March 10, 2010

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Public employees take note: How you describe your job duties in a deposition could lead to your case’s dismissal. That appears to be a lesson from a federal appeals court ruling this week involving a nurse at a state-run hospital who reported abuses by co-workers.

If an employee says in her deposition that she reported abuses in the workplace because it was her duty and job, she runs the risk of running headlong into the legal juggernaut known as Garcetti v. Ceballos, the 2006 decision by the U.S. Supreme Court that held 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.”

This unfortunate fate befell Deborah Barclay, who worked as a nurse in the psychiatric department at Connecticut Valley Hospital. She reported to two nurse supervisors that some of her colleagues were mistreating patients and were sleeping on the job. She alleged that after her complaints, her supervisors treated her poorly, placed her on administrative leave and eventually caused her to be transferred to another hospital.

A nurse speaking about abuse of patients is exactly the type of speech the First Amendment should protect. The Supreme Court in its seminal public employee decision in Pickering v. Board of Education (1968) wrote that employees are often in the best position to provide insight to society on key issues.

Barclay stated in her deposition: “I did my duty. I did my job. … And I wasn’t a whistleblower. I did my job.” That admission proved costly before a federal district court, which granted summary judgment to the defendants in a June 2007 ruling. On March 8, a three-judge panel of the 2nd U.S. Circuit Court of Appeals unanimously affirmed the lower court.

According to the 2nd Circuit in Barclay v. Michalsky, the nurse’s admission proved that her speech was job-related within the meaning of Garcetti. The appeals court wrote that “plaintiff herself conceded at her deposition that it was her responsibility to report patient abuse and nurses sleeping on the job.”

Garcetti puts public employees in the terrible position of having to carry out their duties as required, then be punished for it. And if they sue, in many cases they may have no recourse but to say their speech was job-related.

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