Racial discrimination and free speech claim dismissed

The Court of Appeals thought this case was so routine that it did not advance any analysis in affirming the grant of summary judgment on the plaintiff's discrimination and constitutional claims against the New York City Board of Education. The Court (Raggi, Wesley and Lohier) simply said the district court got it right and summarily affirmed the case. Of course, no case is routine for the plaintiff. 

The case is Johnson v. Board of Education Retirement System of City of New York, a summary order issued on November 18. Plaintiff served as the Manager of Infrastructure and Technical Services for the Information Technology (“IT”) Department at the Board of Education Retirement System of the City of New York. He raised concerns that an outside vendor, GJTZ, responsible for implementing an IT project called the Comprehensive Pension Management System, was not doing a good job in this role, i.e., they were not providing him plans or updates on CPMS. He also raised concerns about Vitech, a third-party software vendor engaged by GJTZ, whom Johnson believed was misrepresenting its products to the CPMS team. Plaintiff was eventually terminated. He claims First Amendment retaliation and racial discrimination.

The First Amendment claim is dismissed because plaintiff did not speak as a citizen in blowing the whistle; he did so as an employee. The Supreme Court in 2006 created that distinction, and since plaintiff was speaking pursuant to his official job duties, there is no First Amendment claim. It was basically plaintiff's job to speak out like this. That's the Garcetti case.

While plaintiff also brought a state law whistleblower claim, that claim was also dismissed because he did not bring his concerns "to a governmental body," as the statute requires. Instead, he communicated his internal dissent within the ambit of his employment. The district court noted that "Recent caselaw and legislative history confirm that not every issue raised internally by a public employee qualifies as a disclosure protected" under the state whistleblower law. As the district court reasoned, applying the New York Court of Appeals precedent in Tiplado v. Lynn, 26 N.Y.3d 204 (2015), 

If communication with internal supervisors qualified as a disclosure to a governmental body, then the requirement that a complainant report internally “[p]rior to reporting” a protected complaint would have been superfluous. Any disclosure would have been protected by the Civil Service Law as soon as the complainant raised the issue of wrongdoing to his or her supervisor. The most sensible reading of the text and caselaw is that the crucial inquiry is whether the speaker intended to blow the whistle on wrongdoing or, rather, whether the speech was simply raising issues about matters relating to the complainant's job.

What about the racial discrimination claim? The district court said plaintiff had "only one piece of evidence that could be construed as directly evincing discriminatory intent," a comment from his supervisor that he could grow marijuana in the office. But on the whole record, that is not enough to win the case. The district court held:

Johnson claims that Rich would not have made that statement had he not been in a meeting with two African Americans, Johnson and Miller, one of whom had his hair in dreadlocks. Even if Johnson is correct, however, Rich's comment—though awkward and inappropriate—is not enough to sustain Johnson's discrimination claim over the specific professional criticisms upon which Rich claims to have based his decision to terminate him. Defendant Orlando's objections to Johnson's starting salary also cannot sustain any inference of discrimination, as the record provides ample evidence that his concern was specifically that Johnson's salary was nearly double what he had been earning in the private sector.