Court denies public employee speech case

This First Amendment retaliation case holds that a computer specialist at an update NY school district cannot bring a claim because his speech was not protected under the First Amendment.

The case is Holmes v. Schoharie Central School District, a summary order decided on December 13. Plaintiff's job title was computer support technician. A school principal, Gillis had a legal dispute with the district. Plaintiff agreed to speak up on Gillis's behalf and agreed to testify as a character witness on her behalf. When the school district received an e-discovery request from Gillis's attorney, the district did not tell Holmes about this. Holmes then agreed to testify as a character witness for Gillis. He also complied with a subpoena from Gillis's attorney requesting an email archive from the former superintendent. After all this happened, the district retaliated against Holmes.

So what's it all mean? Holmes cannot proceed with a First Amendment lawsuit unless he spoke on a matter of public importance. He must also speak as a citizen and not as an employee. Employee speech is not protected if the plaintiff speaks pursuant to his job duties. So that the comptroller's speech about wasted money is not free speech. The comptroller's speech about corruption in some other part of the district is free speech.

At oral argument in this case, Holmes's lawyer said his speech was protected because he turned over the materials on his own, not pursuant to his job duties. He also argued that his actions were contrary to the district's interests, further taking the speech away from his job duties. The Court of Appeals (Livingston, Cabranes and Goldberg (visiting judge)) disagrees, treating this as a traditional speech case where the plaintiff merely spoke pursuant to his duties. "As the computer support technician, it was well within the scope of Holmes's ordinary duties to respond to a subpoena for electronic documentation." (The Court does not deal with plaintiff's other speech acts). That makes plaintiff's speech work speech, not citizen speech. The case is dismissed.