Second Circuit Blocks First Amendment Retaliation Suit

How much leeway do public employees have when criticizing operations within their departments?

Very little, according to a recent First Amendment retaliation ruling from the Second Circuit Court of Appeals.

In 1998, the Lewisboro Union Free School District (District) hired Risa Ross as a payroll clerk typist. Her responsibilities included processing the biweekly payrolls for approximately 800 people, ensuring that pay rates and totals were correct, and raising any mistakes with the appropriate person.

Between May 2003 and July 2006, Ross met with Robert Lichtenfeld, the District Superintendent, on numerous occasions to express concern over payments she thought were improper.

In October 2005, Renee Gargano, an outside consultant who also worked for the Putnam/Northern Westchester BOCES school district, recognized Ross' name on list of District employees. Gargano informed Lichtenfeld that Ross had previously been employed by Putnam. Further investigation revealed that Ross had failed to list her employment with - and termination from - Putnam, as well as two other school districts, on her employment application.

In May 2006, Ross was suspended with pay.

In July of the same year, Ross wrote a letter on her personal stationary to school board members outlining the financial concerns she had raised to Lichtenfeld. The letter began: "Although I am an employee of the School District, I am writing to you ... on a personal note out of complete frustration with the District's administration." Her letter explained her conversations with Lichtenfeld, noted her frustration with his failure to take what she considered to be appropriate action, and stated that her suspension was in retaliation for reporting financial malfeasance.

The Board terminated Ross in December 2006, (after receiving the letter), for knowingly making false statements on her employment application. Ross filed a First Amendment retaliation lawsuit.

The Second Circuit Court of Appeals has previously ruled that speech by a public employee is protected by the First Amendment only when the employee is speaking "as a citizen ... on a matter of public concern." In Garcetti v. Ceballos, the Supreme Court 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 is the case even when the subject of an employee's speech is a matter of public concern.

According to the appellate court, the inquiry into whether a public employee is speaking pursuant to her official duties is not susceptible to a bright line rule.

In this case, Ross alleged three instances of protected speech: her reports to Lichtenfeld about improper payments and promotions, her statements to Gargano about the same issues, and her letter to the Board members. The Second Circuit found that, although Ross's speech was on a matter of public concern, it was made pursuant to her duties as a payroll clerk typist and was not protected by the First Amendment.

Related Resources:

• Ross v. Lichtenfeld (Second Circuit Court of Appeals)
• David Bowie Loses First Amendment Retaliation Claim (FindLaw's DC Circuit Blog)
• First Amendment Rights, the Middle Finger and Police Officers (FindLaw's Legally Weird)