Circuit rules against bus driver who objected to infrequent school bus safety reporting

This is the most important public employee free speech retaliation case in years, at least from the Second Circuit. The Court holds that a school bus driver cannot sue for retaliation after he spoke out about the school district's protocol for dealing with defective school buses. The Court says that plaintiff did not speak out as a citizen and that, even if he did, his speech was not on a matter of public concern.

The case is Shara v. Maine-Endicott Central School District, issued on August 18. Plaintiff was a bus driver who also vice president of the union. On behalf of other union members, plaintiff began arguing with a transportation mechanic over the frequency with which bus safety issues should be reported. Plaintiff said these safety issues should be reported daily until the safety issue is corrected. The mechanic said it's enough to raise the issue once. While another district official agreed that the issue only needs to be reported once, plaintiff continued to press this issue in his capacity as union vice president. Plaintiff was ultimately fired over his insistence that the district handle bus safety issues his way.

We have several issues here. In this blog post, I will cover the citizen-speech angle. In 2006, the Supreme Court said in the Garcetti decision if your speech is among your job duties. The Second Circuit interpreted Garcetti in 2010 to mean that the speech is unprotected if it is part and parcel of your ability to perform your duties. That's the Weintraub decision. The "part and parcel" language is a broad test, but it remains the law in the Second Circuit, which has frequently rejected public employee speech cases ever since. However, in the Second Circuit's Montero ruling (2018), the Court said that certain union speech is protected under the First Amendment. 

What it means for plaintiff is that the 2-1 Second Circuit majority (Sullivan and Park) says that plaintiff's speech was not citizen speech but unprotected work speech because it falls within the scope of plaintiff's duties as a bus driver and "constituted an indispensable prerequisite to the successful completion of his role as a bus driver." The Court finds in this Rule 12 posture that the Complaint does not allege that plaintiff 's discussions with school officials "concerned policy decisions that affected the School District's mission or the local community." Rather, plaintiff "merely asserted that he spoke in his union capacity. But his position as an officer of the union does not transform his employment-related conversations into speech as a citizen." And, the Court says, "the discussions detailed in Shara's Complaint simply reflected workplace disagreements about technical protocols for reporting bus inspection results." Put another way, this case simply highlights an "intermural dispute among school employees about the best way to report maintenance issues involving the School District's buses. Nowhere in his Complaint did Shara allege that the School District's reporting practice permitted unsafe buses to be out on the road" or that district officials "were attempting to sweep needed bus repairs under the rug."

Judge Pooler dissents, stating that plaintiff engaged in citizen speech "because [his comments] went beyond the scope of his job duties as a bus driver" as he "believed that the frequency of reporting school bus mechanical issues was too low and that such issues should have been reported more often." While plaintiff's duties included reporting whether his bus had a safety issue, "his comments went to the frequency of reporting by all bus drivers," thereby criticizing a district-wide policy regarding how often mechanical issues are reported. Since plaintiff's job was as a bus driver and complaining about the frequency of bus safety reporting was "not what he was employed to do" nor "was it part and parcel of his regular job," this is citizen speech, not unprotected work speech.

In the next blog post, I will cover the Circuit's holding in this case that plaintiff's speech did not address a matter of public concern, another requirement for a successful public employee speech case. In her dissent, Judge Pooler characterizes that holding as "the majority's gravest error."