Another First Amendment retaliation case goes down the chute

Public employees continue to lose their First Amendment retaliation cases in the Second Circuit. This time, it's a payroll clerk typist who was fired after she brought financial improprieties to her supervisors' attention.

The case is Ross v. Lichtenfeld, decided on September 10. Ross worked for the Katonah-Lewisboro School District in Westchester County. She processed payroll and verified payroll amounts. If plaintiff found any mistakes or improper payroll payments, she told the Superintendent about it. On one occasion, when Ross told him about some improper payments, the Superintendent said, "Oh, my God. This is worse than the Enron scandal. If taxpayers find out heads will spin." On other occasions, she told the Superintendent that people were improperly receiving overtime payments and that various disbursements were made without School Board approval. She also told the School Board about this stuff.

Ross sounds like a hero, right? Well, she was fired after an arbitrator found that she had a falsified employment application for the position. Still, she did expose some financial improprieties. But her First Amendment retaliation claim fails. The Second Circuit says that Ross did not speak as a citizen in speaking out but instead spoke pursuant to her official job duties. That dooms the case under Garcetti v. Ceballos, 547 U.S. 410 (2006), and its progeny, which makes it harder to win these cases even if the plaintiff exposes a matter of public concern. Ross was just doing her job, but doing you job is not citizen speech; it's work speech.

The Second Circuit (Walker, Leval and Pooler) suggests one way that Ross might have won the case:  "Because Ross never attempted to communicate her complaints to the public, she cannot avail herself of the argument that her duties in no way included public revelation of misconduct of district officials that is generally available to the employee who takes the issue public." So, one way to avoid summary judgment is for the plaintiff to report these matters to the media or some other outlet. Citing Garcetti, the Court also suggests that other whistleblower statutes "or other similar employment codes" might have protected Ross from termination, but she did not assert them in this case. The Court is probably referring to Civil Service Law section 75-b, which says that "A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a  public  employee  regarding the   employee's   employment   because  the  employee  discloses  to  a governmental body information ... which  the employee   reasonably  believes  to  be  true  and  reasonably  believes constitutes an  improper  governmental  action" that violates a law, rule or regulation."