Court finds you can be fired for doing your duty

Friday, December 12, 2008

A former police officer in Everman, Texas, who claimed he was fired after alleging in an e-mail to his superior that other officers were corrupt, had his First Amendment retaliation claim thrown out by a federal district court judge who said it was his duty to report such wrongdoing.

Officer Michael Rivera Jr. claimed that he witnessed fellow officers committing several illegal acts, including policy brutality against minorities, overt racism and other forms of racial discrimination. Rivera e-mailed his superior officer, Sgt. Robert Alonso. The department then fired him, saying he was “unqualified and unsuitable to continue in the position of police officer.” Rivera claimed the reason for the termination was his protected speech in which he reported acts of misconduct by fellow officers.

U.S. District Judge Terry R. Means rejected Rivera’s First Amendment lawsuit, finding that his speech was job-related within the guidelines set forth by the U.S. Supreme Court in the 2006 decision, Garcetti v. Ceballos. In Garcetti, the high court ruled that public employees have no First Amendment protection for speech made in the course of their official job duties.

Rivera contended that his exposure of corruption was speech made as a citizen rather than as an employee because he sent the e-mail to Alonso on his personal computer while off duty. Judge Means rejected that argument, finding that the e-mails were made within the “chain of command” and were directly related to Rivera’s job.

The judge noted that several factors must be considered in applying Garcetti to determine whether a public employee engages in protected citizen speech or unprotected employee speech. These include whether the speech was required or related to the employee’s job; to whom the speech was made; and whether the employee made the speech within the chain of command.

Means determined that these factors cut against Rivera because his job required him to report misconduct by other officers, he made the speech internally and he made the speech up the direct chain of command to his superior officer.

Rivera argued that exposing corruption about fellow officers is important speech that touches on matters of great public concern. However, Means wrote that “the fact that speech was on an important public issue such as police corruption is irrelevant to the threshold issue” and that “the societal import of the speech at issue is not relevant under the Garcetti threshold inquiry.”

Rivera also argued that his claim was bolstered by the 5th U.S. Circuit Court of Appeals decision Williams v. Riley, in which the court reinstated a First Amendment retaliation claim by three former jailers who contended they were fired for reporting abuse of inmates by other jail personnel.

Means distinguished the Williams v. Riley ruling by noting that in Williams it was unclear whether the employer’s policy required the jailers to report such abuse. However, Means noted that “in this case, the policy clearly deals with the scenario alleged by Rivera. … Simply put, Plaintiff [Rivera] claims to have witnessed other officers engaged in illegal activity and the City’s policy requires that such activity be reported.” Means concluded that Rivera has no First Amendment claim because under Garcetti he was acting as a public employee pursuant to his job duties. It made no difference to the court that Rivera’s speech was important: “But the societal import of the speech at issue is not relevant under the Garcetti threshold inquiry.”

Calls and e-mails to Rivera’s attorney were not returned.

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