It's been a few years since we got a comprehensive ruling from the Second Circuit on what constitutes protected speech for government employees who claim retaliation for speaking out. This case involves various categories of speech from New York City school teacher who challenged his school principal. The Court of Appeals says that none of the plaintiff's speech is First Amendment speech and that the principal was therefore allowed to take action against him. This is a tough loss for the plaintiff.
The case is Agosto v. New York City Dept. of Education, issued on December 4. Under Supreme Court case law, public employees do have speech rights, but they are only protected from retaliation if they speak on matters of public concern. Private grievances do not count. Only speech that would interest the public. That means a good deal of speech among government workers, including teachers, is not protected.
One grievance said the principal had altered the way that teachers would be evaluated without showing the proposed changes to the union chapter as a whole in violation of the union contract. This is not free speech on a matter of public concern, the Court of Appeals (Lohier, Menashi and Cabranes) says, because the form of this speech -- internal union ad PERB grievances -- "suggests the absence of a matter of public concern" under Borough v. Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011). Plaintiff does not explain how his grievance would be of any interest to the New York City community. Another union grievance challenged the principal's refusal to give plaintiff copies of the school budgets for 2011-14, as plaintiff wanted to "know where that money went, what happened with those budgets" because a prior principal had given too much budgetary influence to an assistant principal without enough input from the union. Rather than reflect plaintiff's desire to protect the public welfare, this grievance "appears to have been prompted by his personal grievance against the school's leadership for denying input of the chapter in financial decisions relating to the school." It is therefore not free speech.
Yet another grievance accused the principal "of attempting to enlist another teacher to attend a union meeting and report back because [the principal] hoped to have Agosto replaced as the union’s chapter leader." Not only does the fact that this comprised a internal grievance suggest it is not First Amendment speech, but "Agosto’s concern appears to have been the protection of his own union leadership position rather than to address a matter of general public interest."
The final speech act involved plaintiff's grievance with PERB accusing the principal of retaliating against him for representing other teachers during union activity. But, the Court says, "Filing a grievance raising his own alleged injuries is a paradigmatic example of an action that 'principally focuses on an issue that is personal in nature and generally related to the speaker’s own situation or that is calculated to redress personal grievances' and that we have therefore held 'does not qualify for First Amendment protection” from retaliation.'" Moreover, "this court has rejected the notion that 'all activities undertaken through a union necessarily become matters of public concern merely by virtue of their collateral connection to the union,' and Agosto does not explain how his advocacy regarding other employees’ internal employment disputes would transform those disputes into matters of public concern."
For good measure, the Court says that even if plaintiff's speech were protected under the First Amendment, he would lose on qualified immunity, as the law is not clearly-established that at the time the events unfolded in this case, "our caselaw was unclear about whether filing employment grievances was an act undertaken as a private citizen, though that issue was subsequently clarified" in Lynch v. Ackley, 811 F.3d 569, 582 n.13 (2d Cir. 2016).
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