Thursday, July 5, 2012

Can a public employer fire someone for testifying in court?

A probationary DSS caseworker in upstate New York was fired on the same day that she testified against the County's position on a contested child neglect petition. While the County said the mother was not able to raise her child, the plaintiff (who had worked with the mother as part of her job duties) testified as a County employee that the mother was not neglectful and the child should be returned to her. Is the plaintiff's termination legal?

The case is Kiehle v. County of Cortland, a summary order decided on July 3. I handled the Kiehle appeal. In 2003, the Second Circuit held in Catletti v. Rampe that public employees generally cannot be fired in retaliation for their truthful testimony in federal court. This holding recognized the need for honest and uninhibited trial testimony. However, in 2006, the Supreme Court held in Garcetti v. Ceballos that public employee speech made pursuant to official job duties is not protected speech. Since Kiehle testified on the basis of her work-related knowledge about the mother's suitability to raise her child, this case highlights tension between Catletti (and other similar cases that protect witnesses from retaliation) and Garcetti, which was not a testimony retaliation case. The trial court held that Kiehle's speech was unprotected, and the Court of Appeals (Winter, Chin and Straub) affirms, dismissing the case.

This case is a summary order, so the decision is non-precedential. Still, the holding undercuts Catletti, doesn't it? Here is the reasoning in Kiehle:

As the district court concluded based on the indisputable facts, Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing; rather, she testified as a government employee -- as a DSS caseworker. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, the district court did not err in granting summary judgment to defendants.
So the Constitution allows public employers to fire certain subordinates for testifying in court. There is now a Circuit split on this issue. In 2008, the Third Circuit held in Reilly v. Atlantic City that the reasoning in cases like Catletti survives the reasoning in Garcetti. While Garcetti protects management's right to control the work-related speech of its employees, Reilly said that other values are at stake when those employees testify in court, i.e., unvarnished testimony without fear or favor.


Anonymous said...

The link to the decision is wrong--it currently gives the decision of Freeman v Kadien and not the Kiehl case. So many NELA readers, but no one reads the decision.

The facts are very limited, but I suspect that had she been subpoenaed to testify, it may have turned out differently and potentially even created a Wieder type situation (though that claim would've likely lost too based on the NYS COA decisions, but at least it would've been arguable).

Your postings are always appreciated as the Scotusblog of the 2nd Circuit.

Second Circuit Civil Rights Blog said...

Link is corrected. Thanks for noticing.