Tuesday, July 3, 2012

Nasty and disgusting, but not free speech

A public school teacher in New York City alleges that she was retaliated against for "complaining that she had contracted scabies from the 'unsanitary' conditions in her classroom." Ugh! Can you stand it? Disgusting, yes. Free speech, no.

The case is Massaro v. New York City Department of Education, a summary order decided on May 31. Public employee speech is protected under the First Amendment if it addresses a matter of public concern. The plaintiff also has to speak as a citizen; speech pursuant to the employee's official duties are not protected. That's job-speech, not free speech. Also, private complaints are not free speech, and management can discipline or otherwise retaliate against the employee for this.

Summary judgment against plaintiff is affirmed. She did not speak as a citizen but as an employee. The Court of Appeals (Kearse, Carney and Wallace [9th Cir.]) says that plaintiff "aired her complaints only to several school administrators rather than to the public, and that most of those complaints were made in the context of internal safety and medical absence-related forms (at least one of which was marked 'confidential'), 'for which there is no relevant citizen analogue.'"

The Second Circuit has said in the past that public employee speech is not protected under the First Amendment if it is "part-and-parcel" of her ability to perform her job duties. This open-ended language has the potential to kill off a lot of retaliation claims, because the most important speech is usually related to the public employee's position, and the speech will likely concern a matter related to everyday responsibilities.

Ever since the Court of Appeals adopted the "part-and-parcel" language in Weintraub v. Board of Education, 593 F.3d 196 (2d Cir. 2010), I have been intrigued by this rationale. Weintraub interprets a Supreme Court ruling, Garcetti v. Ceballos, 547 U.S. 410 (2006)). The district court said,

Plaintiff's complaints regarding the sanitary conditions in her classroom and the health conditions that arose from them were made pursuant to her duties as an employee. Classroom safety, the practical availability of proper teaching space and the teacher's ability to perform her duties in the space are, like classroom discipline, "indispensable prerequisite[s] to effective teaching and classroom learning."

 Here's how the Court of Appeals sees it:

Massaro’s complaints concerned her ability “to properly execute [her] duties” as a public school teacher, because they were aimed at resolving her health issues so that she could continue to teach, and ensuring that she had a safe and clean environment in which to work and that her use of sick days was appropriately credited. Accordingly, the undisputed evidence demonstrates that Massaro’s statements to defendant were made pursuant to her official duties.

I guess there was another way for the Court to resolve this case: by holding that the speech was not a matter of public concern, but was instead a private grievance. The district court held as such. Certainly the health issue was unique to plaintiff; it was she who got the scabies. But the Supreme Court has said that speech touches upon a matter of "public concern" if it would be of interest to the community at large. I suppose the community -- and the parents of plaintiff's students -- would be interested to know that there were mites in her classroom.

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