Tuesday, March 20, 2012

District court finds a way around Garcetti

A district court case from Connecticut shows how public employees can maintain First Amendment retaliation claims against municipalities despite Garcetti v. Ceballos, a 2006 Supreme Court ruling that has nearly wiped out these cases under its holding that speech is not protected if the plaintiff makes it pursuant to his official job duties.

The case is Ricciuti v. Gyzenis, 2011 U.S. Dist. LEXIS 148748 (D. Conn. Dec. 28, 2011). The Second Circuit has sustained very few First Amendment retaliation claims since Garcetti altered the landscape six years ago. In this case, the plaintiff worked for the Madison Police Department. I love how Judge Kravitz opens up the decision:

To read the parties' statements of facts in this case is already to suspect that summary judgment is not to be. As the Plaintiff would have it, this case is about an experienced officer who was disgusted by the misuse of public funds at the Madison Police Department ("MPD"), and who decided to speak up as a town resident and taxpayer. According to the Defendants, this case was brought by a complaining, often insubordinate probationary officer who thought she knew better than her superiors how to run the Department.

The department had a budget shortfall, so Ricciuti on her own created a revised shift schedule that would save the department money. Then, the interim Police Chief asked her to research ways to modify the department schedule to please more officers and cut overtime costs. Six months later, plaintiff created an "Overtime Matrix" that focused on supervisors' schedules and matters relating to overtime pay. She shared the Matrix with people both inside and outside the department, including friends and family, local public officials and the local gadfly. The Chief then investigated Ricciuti for alleged misconduct and she was eventually fired.

Garcetti junkies might say this case will be dismissed because the Chief initially asked plaintiff to look into ways to save money on overtime. That would make her speech work-related and therefore unprotected. But the district court does not see it that way.

First, while Chief Nolan "commissioned" Ms. Ricciuti's initial research into MPD scheduling, the matrix had a different focus—supervisors and their schedules—and was made almost entirely on Ms. Ricciuti's own time and on her  own initiative. Second, Ms. Ricciuti discussed the matrix with co-workers at the MPD as well as with her family, a family friend, local officials, and even a concerned citizen who was preparing to appear at a Police Commission hearing. Talking politics with co-workers and preparing questions to be asked at a town meeting undeniably count as the kinds of activities engaged in by "regular citizens." Finally, the parties here sharply dispute the issue of whether Ms. Ricciuti spoke pursuant to her employment duties.
The district court does not want to broadly apply Garcetti. In Weintraub v. Board of Education, 2010, the Second Circuit said that speech is pursuant to the employee's job duties if it is "part and parcel" of his ability to perform his job. Judge Kravitz limits that holding: "Were 'part-and-parcel' to encompass all speech that aims to improve a government employee's workplace—thereby helping the employee carry out her core duties there—everything that employees say relating to their work would end up falling outside the First Amendment's protections. This would fly in the face of the Supreme Court's repeated reminders that government employees' speech is often most valuable when it concerns a subject they know best: their jobs." Scheduling was not Ricciuti's job, and in any event she went outside the workplace with her speech, one of the few ways people can distinguish Garcetti these days.

This case is a good primer not only on Garcetti but Mt. Healthy causation, Pickering balancing and qualified immunity. These concepts are well-known to lawyers who handle cases like this. On Mt. Healthy causation, the court says that plaintiff might not have been insubordinate in refusing to sign a counseling memo since the memo itself may have been a retaliatory act:

If the MPD's investigation of Ms. Ricciuti and the resulting Performance Plan were forms of retaliation against Ms. Ricciuti's protected speech -- as hotly disputed evidence in the current record suggests—then Ms. Ricciuti's refusal to sign the Performance Plan could not have constituted an independent, non-retaliatory justification for her termination. The proposed Performance Plan itself required Ms. Ricciuti to cease engaging in the speech at issue here. A government employer that fires someone for refusing to acquiesce in her own silencing cannot then go on to say that the cause of the termination was insubordination, not speech.
A reasonable jury could conclude on the evidence currently before the Court that had the MPD never learned of Ms. Ricciuti's protected speech, the whole chain of events that led to her insubordination would have never occurred. Similarly, a jury might find that the legitimate concerns about Ms. Ricciuti offered by the Defendants were pretextual, or were not weighty enough to have led the MPD to fire her. In the end, too much is disputed or unknown at this point about what went on at the meeting on May 7 and at the Police Commission meeting that followed.
The qualified immunity discussion is also interesting, because the district court notes there is a split among Second Circuit judges about how to determine if the defendants' actions were objectively reasonable sufficient to make them immune from suit. The Supreme Court says the law has to be clearly-established for the plaintiff to get around qualified immunity, but some Second Circuit cases (and not others) say that the defendant also gets immunity if his actions were objectively reasonable. Most recently, the Second Circuit said in Nagle v. Marron, 663 F.3d 100 (2d Cir. 2011), that "an official who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful." While this language conflicts with other Second Circuit pronouncements on qualified immunity (and is more favorable to plaintiffs), the district court here follows it as the most recent case on qualified immunity. The case thus goes to trial.

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