Garcetti still laying waste to public-employee speech

Wednesday, August 11, 2010

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The U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos denying First Amendment protection for public employees’ job-related speech continues to have an indelible impact in the law. Increasingly, public employers are able to defend themselves against allegations of retaliation by claiming that employees' criticisms of government operations were made as part of their official duties.

Consider the recent cases of Deborah Andrews, an employee with a state psychiatric hospital in Middletown, Conn., and Christopher D. Aubrecht, a Pennsylvania state trooper. Both employees alleged that their employers retaliated against them after they complained about allegedly unsafe or unlawful conduct.

Andrews contended that she was punished after she reported unsafe conditions for staff, particularly after her hospital became home to many potentially violent teen girls from the juvenile court system. Andrews spoke out about the unsafe working conditions at a labor-management meeting, where she was a union delegate.

U.S. District Judge Christopher F. Droney ruled July 21 in Andrews v. Peet that Andrews' complaints even as a union delegate were unprotected job-related speech. Citing Garcetti, Droney wrote that Andrews’ “positions as a CSW (child services worker) and union delegate involved the duty to report on and raise awareness about safety issues in the hospital that affected staff and patients.”  He added that “[r]aising a complaint about a physical attack on a staff member by a patient falls within this duty.”

Also because of Garcetti, Aubrecht fared no better in his lawsuit. He contended that he was subjected to a series of retaliatory actions — denial of transfer requests, denial of overtime, denial of training and other things — after he complained that his supervisor violated a state law by saying that he must issue a certain number of traffic citations a month.

A Pennsylvania law, 71 P.S. § 2001, prohibits the use of quotas in enforcing traffic laws. It provides:

“No political subdivision or agency of the Commonwealth shall have the power or authority to order, mandate, require or in any other manner, directly or indirectly, suggest to any police officer, State Police Officer … that said police officer, state police officer … shall issue a certain number of traffic citations, tickets or any other type of citation on any daily, weekly, monthly, quarterly or yearly basis.”

A federal district court rejected Aubrecht's First Amendment claim and a three-judge panel of the 3rd U.S. Circuit Court of Appeals affirmed the dismissal in its Aug. 5 opinion in Aubrecht v. Pennsylvania State Police.

Part of the 3rd Circuit panel's decision rested on Garcetti. “Here, it is undisputed that Aubrecht confined all of his comments to the workplace and that all of his complaints dealt with aspects of his official duties as a police officer,” the panel wrote. “Therefore, his speech regarding the alleged ‘quota’ is not afforded constitutional protection.”

Whatever the merits of these two specific cases, a pattern has emerged in this post-Garcetti world. It has become much more difficult for plaintiffs’ attorneys to mount effective First Amendment lawsuits based on any speech that relates to the workplace.

“These rulings come down with depressing regularity,” said John R. Williams, a New Haven-based attorney who represented Deborah Andrews.

It is indeed depressing that many public employees have no First Amendment right to complain or speak out against corruption, illegality or unsafe working conditions.

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