Employer can retaliate against employee for reporting payroll fraud to Board of Education

If you are a public employee who intends to speak out on a matter of importance, you should speak with an attorney first. You may think you cannot be fired for "doing the right thing." But the law may not protect you, at least not the First Amendment. Consider this free legal advice.

The case is Williams v. Board of Education, a summary order decided on June 4. The plaintiff worked as a clerk at the Riverside Institute of Technology. The school principal told her to alter the payroll documentation to show that substitute teachers were performing special education duties. Plaintiff objected to this because she thought the principal was misappropriating special education money. She reported this attempted malfeasance to her supervisor, her union, the board of education and the City of Buffalo. As a consequence of this whistleblowing, the principal treated her like garbage in the form of various acts of retaliation. She sues under the First Amendment.

What happens when the clerk reports payroll fraud to proper authorities? Can she sue over the retaliation? You have to ask what were her job duties. The answer to that question tells us whether plaintiff engaged in  protected speech. As the district court noted in granting defendants' motion for summary judgment, "plaintiff was responsible for processing and maintaining the payroll documents at Riverside. She objected to certain payroll reporting practices at the school and made her concerns known through internal channels available to her as an employee of the Buffalo Board of Education."

Plaintiff loses the case. Her speech was not protected under the First Amendment. The Supreme Court held in Garcetti v. Ceballos (2006) that the First Amendment does not protect public employee speech if the speech was part of her official job duties. If the speech grows out of the plaintiff's duties, then she is not speaking as a citizen but as an at-will employee. The Second Circuit (Pooler, Livingston and Goldberg [D.J.]) sums it up: "the speech for which Williams claims she was retaliated against owed its existence to her payroll responsibilities as the school clerk. Regardless of her internal motivations, Williams's speech was clearly undertaken in the course of performing her work completing payroll for the school."