Tuesday, May 27, 2014

Public employee speech retaliation against DOCS fails

In this public employee whistleblower case, the plaintiff claimed to suffer retaliation after complaining about various workplace problems. The district court granted the defendants summary judgment, and the Court of Appeals affirms.

The case is Norton v. New York State Department of Correctional Services, a summary order decided on May 9. This decision is a relatively short one, but it provides a good summary on the state of the law in this area. The general rule is that you cannot suffer retaliation for speaking out on matters of public concern. But these cases provided limited avenues for relief. "Public concern" speech has a specific definition. Here are plaintiff's grievances, and why she loses the case:

1. "Norton, who is African-American, complained that she was denied advancement in favor of a white employee with less seniority, and that specific white employees were treated better than she was." But this is not First Amendment speech. The Second Circuit (Sack, Raggi and Chin) says, "[t]his is a quintessential employee grievance." The Court adds, "Norton’s complaints of personal discrimination are not connected to any broader policy or practice and, thus, do not raise a public concern of systemic discrimination." Society does not really care about personal workplace grievances, at least for purposes of deciding whether the plaintiff engaged in protected activity.

2.Plaintiff also complained about HIPAA violations. This does not qualify as First Amendment speech, either. "[S]he [simply] alleges that she reminded defendants of HIPAA disclosure protections when they asked her to give information concerning her own off-duty provision of health care to her mother and other patients. Nothing in this alleged statement reached beyond a 'generalized public interest in the fair or proper treatment of public employees,' which we have said is 'not enough' to trigger First Amendment protection.  Indeed, Norton admits that she was complaining of 'personal violations of her and/or her mother’s medical and health information.'" So, while HIPAA protects medical privacy, HIPAA-related complaints are not necessarily First Amendment complaints.

3. "[W]hile Norton’s alleged complaints of forced overtime and under-staffing might implicate concerns for staff and patient safety, read in context, it is apparent that their primary focus is Norton’s own work situation. Specifically, Norton complained of being forced to work overtime during, and immediately after, nine 16-hour days over a two-week period. Similarly, she complained of understaffing within days of informing her employer that she intended to file grievances related to her schedule." Again, personal grievances are not First Amendment grievances.

It also hurts plaintiff's case that she aired her complains internally, not publicly. "Nothing in the complaint suggests that [she] made a single public statement or ever intended to make such a statement.” For this proposition, the Court of Appeals cites Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289, 291 (2d Cir. 2013) (noting form of speech was “exclusively nonpublic” where plaintiff “availed itself of a dispute resolution mechanism entirely internal to [the Department of Transportation]”).

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