Tuesday, April 7, 2009

Threatening to politically "assassinate" someone's "ass" can get you fired

The Court of Appeals has granted summary judgment to a former New York City Council employee who engaged in disruptive behavior over a proposal to name a city street after controversial black leader Sonny Carson.

The case is Plummer v. Quinn, decided by summary order on April 7. There were two incidents that got plaintiff in trouble. First, when the City Council debated the issue, while seated in the staff section, Plummer yelled out “that’s a lie” and “liar” when two councilmembers made what she believed were false comments about Carson. Then, at a press conference outside, Plummer threatened to derail the political career of a councilmember, Comrie, who had abstained from voting on the street-naming measure. The Second Circuit summarizes what happened: "Unfortunately, particularly given that Plummer was aware of the 2003 murder of a councilmember in City Hall, she did so using more colorful language, stating that she would seek to politically 'assassinate' Comrie’s 'ass.' Plummer acknowledges that these comments were the subject of negative press."

Can language like this get you fired? Under the First Amendment, you can't be fired for expressing matters of public concern. As the Court of Appeals reminds us, "[T]he First Amendment protects the eloquent and insolent alike.” But public employees are not protected if their comments have potential to unduly disrupt the workplace. We call that the Pickering balancing rule, named after a Supreme Court ruling from 1968.

Pickering balancing requires the Court to consider not only the statements at issue but the “context in which the dispute arose” and “the nature of the employee’s responsibilities” since “[t]he level of protection afforded to an employee’s activities will vary with the amount of authority and public accountability the employee’s position entails.” Melzer v. Bd. of Educ., 336 F.3d 185, 197 (2d Cir. 2003). Plummer's position as a City Council staffer and the Council Speaker's concern for the public safety of a councilmember justifies Plummer's termination under Pickering balancing. Also, under Piscottano v. Murphy, 511 F.3d 247, 271 (2d Cir. 2007), the City has an easier time in firing Plummer because she held a "public contact" position.

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