Thursday, December 27, 2012

Police officer survives Garcetti objection in free speech retaliation claim

A New York City police officer sued his employer because he suffered retaliation after he complained internally about a quota system within the department, "causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers" and that the quotas were hurting the precinct's relationship with the community." Is this free speech? It might be.

The case is Matthews v. City of  New York, a summary order decided on November 28. Public employee speech claims have been difficult to win ever since the Supreme Court in 2006 held that speech arising from the plaintiff's official job responsibilities is not protected. This was the Garcetti case. Under Garcetti, the public employee has no First Amendment protection from retaliation even if his speech raises a matter of public concern.

The district court threw out the case, holding that the quota objections arose from Matthews' job duties. Technically, that was true. But dismissal was premature. Discovery is needed to see if plaintiff's speaking pursuant to his job duties. The Court of Appeals (Raggi, Hall and Carney) says:

The record in this case is not yet sufficiently developed, however, to determine as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos, 547 U.S. at 424–26 (distinguishing between giving employees an internal forum for their speech and making certain speech a duty of employment). As we have recently observed, “whether a public employee is speaking pursuant to h[is] official duties is not susceptible to a brightline rule.” ... The matter may require some inquiry into “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Here, some discovery as to these matters is necessary before it can be decided whether Matthews can or cannot pursue a First Amendment retaliation claim in this case.

This case is a summary order and therefore it carries little precedential value. But it has its moments for plaintiffs.Garcetti cases have fared poorly in the Second Circuit over the last six years. Matthews certainly spoke out on matters of which he was aware from his daily responsibilities. But was his speech part-and-parcel of his ability to do his job? That's the legal standard in the Second Circuit. Matthews' speech was certainly important. The Second Circuit is reluctant to dismiss the case completely and thinks some discovery and document review may shed further light on all of this.

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