Friday, April 3, 2009

First Amendment does not protect employee's request NOT to perform unsafe work

A man who tells his boss that he is not fit to handle certain public job responsibilities has not engaged in First Amendment speech, the Court of Appeals has ruled.

The case is Mulcahey v. Mulrenan, decided on March 31. The plaintiff was a Fire Department Captain who wrote to his superiors that he lacked the training and experience to serve as an "acting battalion chief" of a fire unit and that he would not "accept any responsibility for actions or decisions that may cause injury or death to civilians or members of" the fire department while serving in that capacity. Defendants retaliated against plaintiff for saying this.

So is this First Amendment speech? I guess the argument could be that he is speaking on a matter of public concern, i.e., public safety. (Only "public concern" speech is protected under the First Amendment). But it's not protected, the Second Circuit (Jacobs, Wesley and Crotty) holds in this summary order, because it was really "calculated to redress personal grievances."

In this case, the Second Circuit nibbles around Garcetti v. Ceballos, 547 U.S 410 (2006), which held that speech that arises from your official job duties is not protected speech under the First Amendment. I'm still waiting for the Court of Appeals to decide a tough case under Garcetti, which has certainly reduced the amount of successful public employee free speech cases. But this case does not add a serious wrinkle to Garcetti because the plaintiff was seeking an exemption from his official job duties. As the Second Circuit sees it, "Under Garcetti, a request for a personal exemption from an official duty is clearly an administrative act made in the course of public employment." That brings this case within Garcetti, which states that "The controlling factor . . . is that his expressions were made pursuant to his [public] duties."

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