School employee’s retaliation claim survives Garcetti

Monday, September 7, 2009


A federal judge has refused to dismiss the lawsuit of a social worker in a New York state public high school who investigated a possible cover-up of teacher-on-student harassment. The case shows that public employees who go outside their line of authority and complain about their superiors may have a better chance with their First Amendment retaliation claims.


Colleen McAvey, a social worker at Flannery High School in Goshen alleged that the Orange-Ulster BOCES school district in Goshen and school officials unlawfully retaliated against her after she investigated the reported harassment and spoke with a newspaper reporter.


In September 2005, two ninth-grade girls at Flannery separately told McAvey and Principal Jake McHale that a female special-education English teacher (known in court papers only as “Ms. A”) made inappropriate comments to a male student (known in court papers as “D”) of a sexual nature. McAvey met with D, who told her that he thought Ms. A wanted to have sex with him.


McAvey spoke with D’s homeroom teacher, who also had learned of the comments. McAvey then reported the problem to McHale, who said he knew about it and would take care of it. She also spoke with the school “resource officer” (a town police officer), David Ramsey, about the situation.


D later told McAvey that the teacher had retaliated against him for complaining about her by not letting him go to the bathroom.


A few days later, a newspaper reporter from the Middletown, N.Y., Times Herald-Record contacted McAvey for comment about a police report the reporter had obtained about an incident between the student and teacher. McAvey, who knew nothing about the police report, asked the reporter to read her what it said. According to court papers, McAvey found inaccuracies in the report. She suspected that McHale and Ramsey had not pursued the investigation diligently enough and had not been truthful in the report.


The next week, McAvey filed a freedom of information request with the Goshen Police Department for the police report and McHale’s deposition. After the request, the police chief met with McHale and Ramsey in the principal’s office.


McAvey also e-mailed then-school Superintendent Robert Hanna about what had happened up to that point.


In October 2005, then-Deputy Superintendent Jeffrey Smith and Marguerite Flood, the executive personnel director, met with McAvey and her union representative. Smith yelled at McAvey and accused her of a lack of professionalism, according to court papers.


Smith thereafter mailed McAvey a reprimand letter saying that although she had done the “correct thing” by reporting her initial concerns, she should not have gone outside the chain of command. “In the future, should these circumstances arise again, I am directing that you stay in process and work directly with your school administrator,” the letter read.


McAvey later claimed she was transferred against her will in the middle of the next school year to another high school, denied a counselor position she desired and suffered other adverse consequences. In December 2007 she sued in federal court, alleging a violation of her First Amendment rights. She sued the school district, Smith, McHale and Flood.


The defendants filed a motion to dismiss, claiming that McAvey’s First Amendment contentions were foreclosed by the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. In Garcetti, the high court ruled that public employees had no free-speech rights for speech “made pursuant to their official job duties.” The defendants argued that McAvey’s complaints all arose out of her job duties as a social worker.


But in his August 2009 opinion in McAvey v. Orange-Ulster BOCES, U.S. District Judge Robert W. Sweet disagreed. The judge did agree that when McAvey made her initial complaints to principal McHale, she spoke as an employee as part of her official job duties. However, Sweet reasoned that her subsequent communications, such as speaking with the newspaper reporter and followup conversations with the police, were not official job-duty speech within the meaning of Garcetti.


The judge said the context of McAvey’s statements were “much more analogous to … Pickering v. Board of Education.” Pickering is the seminal 1968 Supreme Court ruling that a public school teacher had a First Amendment right to write a letter criticizing his school district to the editor in a local newspaper.


“McAvey’s official job duties cannot be said to include scrutinizing her supervisors for fraud … and reporting them to external investigators,” Sweet wrote.


The judge also noted that the “letter of reprimand indicates that it was McAvey’s statements to those outside the school district, not her reporting of the abuse allegations internally, that resulted in Defendants’ alleged retaliation.”


“The court was dead-on in terms of its analysis on the Garcetti defense,” said Christopher D. Watkins, McAvey’s attorney. “Many courts have felt constrained by the official-duty exception created by Garcetti but we had really good facts in this case.”


“She was punished not for her official duties about reporting allegations to her principal,” Watkins said. “Instead she was punished and retaliated against for her contact with the police department and contact with a newspaper reporter.”


The case now proceeds to the discovery process — the term used to describe the period after a lawsuit has been filed and before there is a trial or definitive ruling in which each side triess to learn and obtain more information about the case.


“I think the discovery process will bear out her allegations,” Watkins said.


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