Public worker wins a round vs. college that fired her

Friday, May 20, 2011

At least for now, Laura Vera has avoided being Garcetti-ized. Whether she ultimately can prevail on her First Amendment claim, however, remains to be seen.

Vera is one of a long line of public employees who have asserted that their employers violated the First Amendment when they fired or disciplined them for criticizing the employers. These cases have proven especially difficult for public employees to win since 2006, when the U.S. Supreme Court held in Garcetti v. Ceballos that speech made as part of a public employee’s official duties is not constitutionally protected.

In Vera v. Zuccarelli, Vera, a former employee of South Suburban College in South Holland, Ill., alleges that she was fired as publications director after she complained that the college was forcing employees to perform political work. On May 10, Senior U.S. District Judge George Lindberg denied the college’s motion to dismiss the lawsuit, saying it was at least “plausible” that Vera could prove her speech was protected by the First Amendment.

Such protection, Lindberg noted, depends in part on whether the speech addresses a matter of public concern. If so, the First Amendment protects the speech – assuming that the employee spoke as a private citizen rather than as a public employee. If the speech addresses only a matter of private interest, however, the public body, acting in its capacity as employer, can terminate or discipline the employee.

Vera’s speech, Lindberg held, could be deemed to concern corruption or unethical conduct. If it were, the speech would address a matter of public concern and would be protected if she could also show that the political work (or exposing it) was not part of her job duties.

“It is certainly plausible that this alleged speech involved a matter of public concern,” Lindberg wrote in his opinion. “Thus, while it is impossible at this stage of the proceedings to determine whether the speech was indeed constitutionally protected, plaintiff’s complaint contains sufficient factual matter to state a plausible claim for relief, and so will not be dismissed.”

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