Wednesday, February 6, 2008

Public employee's lawsuit cannot support First Amendment retaliation claim

Public employees cannot be retaliated against for speaking out on matters of public concern. That's been the law for nearly 40 years. In 2006, though, the Supreme Court altered the equation by ruling in Garcetti v. Ceballos that it's not "public concern" speech when the government worker speaks pursuant to his official duties. This ruling doomed many First Amendment/whistleblower retaliation lawsuits because the public employees in the best position to speak out on the job are often the ones who did so pursuant to their official responsibilities.

The Court of Appeals has not squarely applied Garcetti's holding. But today it nibbles around the edges in Ruotolo v. City of New York, ruling that a public employee's lawsuit over job conditions cannot predicate a retaliation lawsuit. In the past, it was routine for public employees to bring a First Amendment lawsuit claiming that a prior lawsuit caused management to retaliate against them. The prior lawsuit was considered First Amendment activity which could not motivate any retaliation. In Ruotolo, the Court asks whether the prior lawsuit addressed matters of public or private concern. In Cotarelo v. Village of Sleepy Hollow, 460 F.3d 247 (2d Cir. 2006) (a case that I briefed on appeal), the Court of Appeals held that Cotarelo's prior lawsuit which alleged widespread discrimination in his police agency addressed a matter of public concern because it did not solely address Cotarelo's private grievances.

Ruotolo is not Cotarelo, says the Court of Appeals (Jacobs, Sotomayor and Leval). Ruotolo's lawsuit which prompted the retaliation involved his claim that management altered the terms and conditions of his employment after he drafted a report describing widespread health and safety problems at the police department. The report may have addressed important public matters, but the district court ruled that it was not "public concern" speech because, pursuant to Garcetti, it was drafted pursuant to his official duties, not as a private citizen. Since it further alleged retaliatory acts that were unique to Ruotolo's employment, that lawsuit was not First Amendment activity in that it did not address matters of "public concern," only his private grievances. The Court of Appeals suggests this was the right result, but Ruotolo did not appeal that part of the decision, knowing that he would lose under Garcetti.

So the importance of Ruotolo is that some lawsuits by public employees are protected under the First Amendment and cannot predicate any retaliation by management. But if that lawsuit involves claims unique to the plaintiff and does not address widespread discrimination or other matters of "public concern," the retaliation is non-actionable under Garcetti. Summing up, the Second Circuit writes:

A generalized public interest in the fair or proper treatment of public employees is not enough. Because Ruotolo’s lawsuit concerns essentially personal grievances and the relief he seeks is for himself alone, the lawsuit is not speech on a matter of public concern and cannot sustain a First Amendment retaliation claim.

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