Speech about an abusive boss in a public workplace is not protected under the First Amendment

The Court of Appeals has summarily rejected a free speech retaliation claim brought by a public employee who complained about an abusive boss.

The case is Dellatte v. Great Neck Union Free School District, decided on January 20. The Court of Appeals (Cabranes, Pooler and Wesley) says that the plaintiff's speech did not touch upon a matter of public concern.The summary order tells us nothing about plaintiff's speech, but the district court's ruling does. The magistrate judge who dismissed the Complaint says:

Here, Plaintiff’s speech concerned (1) his treatment by his supervisor, Rufus, and (2) the contents of his personnel folder. Regarding his supervisor, Plaintiff alleges that Rufus is “corrupt[]” and an alcoholic, and that he “steals supplies, alters time cards, steals overtime and
otherwise engages in theft of services,” and “becomes very abusive when intoxicated.” Plaintiff further asserts that “Defendant Rufus repeatedly berates plaintiff, talks down to him and falsely criticizes his job performance.” With the above-stated principles in mind, the Court finds that the speech described by Plaintiff in the Complaint represents Plaintiff’s personal grievances regarding his treatment by his supervisor. Such expression may have pertained to Plaintiff’s attempts to redress his personal grievances, but there are no allegations whatsoever to show that Plaintiff engaged in that speech to advance a broader public purpose.

So that's the speech. The hurdle is Garcetti v. Ceballos (2006), a Supreme Court case that says that speech pursuant to your official job duties is not free speech, but work speech for which you can be disciplined. Plaintiff does not even get that far, because the speech does not even address a matter of public concern, though he did speak up about an abusive boss who was on the public payroll.

Plaintiff argued in the district court that he spoke as a private citizen and that his "speech concerned general problems that he perceived and was not limited to instances affecting only him[,]” and that such “speech, about what he perceived to be the improper conduct of his supervisor[,] was not clearly one of his job duties.” The district court said that "courts have frequently stated that '[a] public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run.' Furthermore, '[a] generalized public interest in the fair or proper  treatment of public employees is not enough.' ... Accordingly, where, as here, Plaintiff’s speech is 'calculated to redress personal grievances[,]' Plaintiff cannot state a First Amendment retaliation claim simply by adding conclusory statements regarding his intentions in making that speech."