Public employee could be fired over her two prior lawsuits

It's been a while since the Court of Appeals addressed when a public employee can sue for retaliation under the First Amendment. The general rule is that public employees have limited rights to speak on matters of public concern if, and only if, they are speaking as a citizen and not pursuant to their official job duties. The courts find that plaintiff in this case did not speak on matters of public concern when she filed two prior lawsuits against her public employer.

The case is Flynn v. Bloomingdale, a summary order issued on July 28. Plaintiff was a parole officer for the Department of Parole. If you file a lawsuit against your public employer, when then retaliates you for filing that lawsuit, the lawsuit is not necessarily a matter of public concern, even though the plaintiff is petitioning the government for grievances. The courts have addressed that anomaly by holding that even lawsuits must address a matter of public concern to be protected under the First Amendment. If the lawsuit only addresses a personal matter, then it is not protected.

The general rule is that "matters implicate the public interest when the plaintiff wanted to debate issues of discrimination, that the plaintiff’s suit sought relief against pervasive or systemic misconduct by a public agency or public officials, or that the plaintiff’s suit was part of an overall effort to correct allegedly unlawful practices or bring them to public attention.” Otherwise, lawsuits that address personal grievances are fair game to fire the plaintiff.

Plaintiff's lawsuits were filed in federal and state court. Both said she had been demoted and suffered other retaliation because she had spoken out about the discharge plan of a serial sexual offender, referred to as John Doe. Defendants let her go because the agency thought Plaintiff had improperly disclosed confidential information about parolees via her personal email to counsel. But the Court does not determine whether this excuse was a lie to cover up a retaliatory motive. The Court reasons instead that plaintiff's lawsuits were not acts of free speech:

"Flynn I and II sought redress for Plaintiff’s demotion and other forms of retaliation and to secure personal relief for Plaintiff through monetary and injunctive relief. For example, in Flynn I, Plaintiff requested damages and “injunctive relief . . . including reinstatement to her Special Assignment in the Sexual Offenders’ Unit and the reinstatement of overtime compensation that comes with that position.” 

In addition, "in Flynn II, Plaintiff requested damages and numerous forms of injunctive relief, all of which were aimed at ameliorating past retaliation against Plaintiff and preventing retaliation against her in the future. Because Flynn I and II addressed Plaintiff’s personal treatment at work, rather than systemic or pervasive misconduct, we conclude that the lawsuits themselves did not constitute speech on a matter of public concern."