Employee speech exposing intoxication at the sewage treatment plant is not protected under the First Amendment

The plaintiff alleged he was fired in retaliation for speaking out under the First Amendment. But there are strict requirements in order to prevail on such a claim, and the Court of Appeals finds that plaintiff cannot meet those requirements. The case is dismissed.

 The case is Reynolds v. City of New York, a summary order issued on March 11. Plaintiff was a sewage treatment worker for the Department of Environmental Protection. In 2020, he told management that coworkers were drinking alcohol and were intoxicated on the job, "thereby impeding their ability to adequately perform their job, which is an essential function to maintain public health." Following this speech, plaintiff suffered a series of retaliatory acts, including a transfer to the day shift after working nights for 17 years, which cost him money in overtime hours. Plaintiff was also assaulted on the job in retaliation for his speech and had false accusations lodged against him.

It may look like plaintiff has a case, but he does not, the Court of Appeals (Newman, Lee and Nathan) says, because plaintiff did not speak on a matter of public concern, a necessary requirement for maintaining a First Amendment retaliation claim. Public concern speech has a particular definition, and the Supreme Court once said that something that might be reported in the newspaper could be a matter of public concern. Municipal corruption, public safety, and across-the-board discrimination are matters of public concern, for example. 

While "Reynolds’s primary argument is that reports about misconduct at the DEP must necessarily be connected to the 'health and safety of the public via the she[e]r nature of the work at the [DEP], namely ensuring clean drinking water for the public,” the Court holds that he must do more than allege that the "sheer nature" of this kind of work was connected to the public's safety and was therefore a matter of public concern. The authority for this proposition is Shara v. Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 81 (2d Cir. 2022), which held that although a school bus driver’s complaints about bus-inspection reporting implicated the safety of bus-riding children, it was not a matter of  public concern because “he never alleged . . . that the School District’s preferred reporting policy resulted in unsafe conditions or that his proposal of daily reporting would have improved safety.”

Plaintiff loses because he does not allege in his complaint that the employee misconduct contributed to unsafe drinking water or that it impacted public health and safety. "While we agree that intoxicated employees at a sewage treatment facility certainly could take actions to harm the public’s safety, the sparse allegations in Reynolds’s Amended Complaint do not allege any facts allowing the Court to draw the inferences Reynolds suggests." Plaintiff's arguments are too speculative and conclusory to allow this case to proceed to discovery.