Public employee wins First Amendment retaliation case

The news here is that a public employee won a First Amendment retaliation case at trial and was not run off the road by the Supreme Court's Garcetti ruling, which makes it difficult but not impossible to win cases like this.

The case is Spencer v. Philemy, a summary order decided on December 19. Spencer was a substitute teacher in New York City. One of her students was a punk who sexually harassed her and basically drove everyone up the wall with his criminal behavior. Spencer complained to the police and the New York City Law Department about this, and afterward she received negative performance evaluations and was denied a full time teaching position. Her supervisors feared these complaints would hurt the school's reputation and lead the public to think it was crime school. The jury awarded Spencer $25,000 for lost wages (but nothing for pain and suffering).

Garcetti junkies may know that the Second Circuit usually rules against the plaintiff in these cases in finding that the speech was not uttered as a citizen but instead grew out of their job duties. Job-duty speech is not protected. In the Second Circuit's most important Garcetti precedent in this area, Weintraub v. Board of Education, the Court of Appeals said that a teacher spoke pursuant to his official duties in filing a grievance about the weak discipline meted out to a belligerent student. The Circuit's formulation in Weintraub as to what constitutes job-related speech is broad, and that's why many of these cases are kicked to the side on motions for summary judgment.

I don't know if the City asked the Court of Appeals to throw out the verdict on authority of Weintraub, but the Second Circuit (Pooler, Lynch and Lohier) does not apply a Garcetti analysis. The City does argue that Spencer's speech was not a matter of public concern. The Second Circuit disagrees, reasoning:

the content and context of Spencer’s communications with the police, New York City Law Department, and Family Court, along with her motivations for speaking, establish that her speech was on a matter of public concern. The content of Spencer’s speech to the police related to the Student’s disruptive behavior and his holding onto Spencer’s driver’s license after he apparently had stolen Spencer’s wallet. In addition, Spencer spoke to the New York City Law Department concerning the Student’s behavior, which led to the Family Court concluding that the Student was guilty of harassment and sexual abuse. Because Spencer’s speech concerned seriously disruptive and criminal behavior on the grounds of a public school, the content of her speech supports a determination that she was speaking on a matter of public concern.

The context of Spencer's speech also shows she engaged in free speech. "Other teachers at the Student’s school, and even Philemy and Mandell themselves, expressed concerns about how the Student’s behavior was negatively affecting the school. Thus, this is not a case in which the plaintiff’s speech related to an individual employment matter that was of little public concern, such as a payroll issue, promotion, or
discipline."

No qualified immunity for the defendants. Qualified immunity junkies will find the analysis interesting, in that it relies in part on precedents from other circuits. The law was clearly established in 2004 (when all of this went down) that public employers cannot retaliate for "public concern" speech, and that the welfare and safety of young students addresses a matter of public concern. Cases that articulate the student welfare angle in this context actually hail from other circuits, but they pre-date the events giving rise to this case and were favorably cited by a Second Circuit case in 2006. And, in 2002, the Second Circuit said that safety in the public workplace constitutes speech on a matter of public concern. All these cases are close enough to Spencer's case to fend off a qualified immunity challenge.