Court holds that speech on bus safety issues does not address a matter of public concern

Over a strong dissent, the Court of Appeals holds that a school bus driver who argued with his employer about the frequency with which bus defects should reported did not speak on a matter of public concern. This means the plaintiff did not engage in protected speech under the First Amendment, and he cannot redress what he calls his retaliatory termination.

The case is Shara v. Maine-Endwell Central School District, issued on August 18. Plaintiff told a transportation mechanic for the district that it was not enough that bus defects were being reported on a single occasion. Plaintiff wanted these defects to be reported on a daily basis until the defect is corrected. The district's Director of Auxiliary Services disagreed with plaintiff about the reporting protocol. Plaintiff was terminated shortly thereafter, and this lawsuit claims he was fired because of his speech. (My write-up about a related holding in this case is at this link).

Public employees cannot be fired if they speak on matters of public concern, defined as any matter of interest to the community. This prevents employees from filing retaliation lawsuits because they complained about matters that were strictly personal to them ("I was unfairly denied a promotion") or matters that the public would not care about ("the air conditioning around here is not working"). While plaintiff spoke up about school bus safety issues, that is not a matter of public concern, the Court of Appeals (Sullivan and Park) says, because plaintiff was not really a whistleblower. Rather, "the allegations in his Complaint were more pedestrian and involved little more than an intramural dispute 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 [the district was] attempting to sweep needed bus repairs under the rug."

Judge Pooler dissents, stating that the majority's interpretation of the Complaint is far too narrow. Noting that the Court has previously held that "the safety of public employees is, indeed, a matter of public concern," as she sees it, "Shara’s comments were clearly on a matter of public concern. Shara was concerned with the frequency of reporting safety issues regarding the School District’s buses used to transport schoolchildren." Moreover, "Common sense dictates that Shara’s speech concerned the safety of the workplace, the safety of the Maine-Endwell community’s schoolchildren, and the safety of other motorists whose lives might be at risk of colliding with a school bus with faulty brakes or other mechanical issues, such as the two buses that had already failed inspection. Surely speech on such a topic is the paradigmatic example of speech on a matter of public concern."