Monday, August 24, 2009

First Amendment may protect public worker who complained about workplace bullying

Public workers have the right under the First Amendment to speak out on matters of public importance without retaliation. There are more nuances under this theory of liability than you can imagine. The Court of Appeals has to iron out those nuances from time to time, as the case law is often unclear or contradictory. Another nuance has been ironed out.

The case is Sousa v. Roque, decided on August 21. A public employee in Connecticut began complaining about workplace violence in the Department of Environmental Protection. It all started when the plaintiff, Sousa, got into an altercation with a co-worker, but his complaints went beyond that fracas as he spoke up about a form of group harassment called “mobbing,” “which is a process of abusive behavior over time,” according to the Second Circuit.

Sousa spoke out in a variety of ways, and his complaints culminated in an email in which he referenced a book on “mobbing” to members of the DEP’s Workplace Violence Threat Assessment Team. He wrote, “When you read the book you will recognize that mobbing can often result in the death of the victim, either due to illness, accident or suicide. Another reference suggested that, in light of such ramifications, workplace mobbing should be viewed as the last remaining legal means of committing homicide. I personally see it as a form of group vigilantism.” That did it. Management sent Sousa to a fitness examination to see if he was mentally fit to work. After a series of absences from work, an independent examiner found that Sousa was able to work again, but he did not show up, and he was fired for unauthorized absences.

The question on appeal is whether Sousa’s speech touched upon a matter of public concern. The district court ruled that Sousa’s speech only addressed a personal grievance, which is not protected under the First Amendment. One of the factors in making this determination is the plaintiff’s motive for speaking out, i.e., if the worker was motivated by his own grievances, the speech is generally not protected under the First Amendment. But it’s not so simple. Over the last decade or so, the Second Circuit has been kicking around this concept, holding in Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) that the speaker’s motive is not dispositive, i.e., he can still win the case even if the “public concern” speech was calculated in part to address a personal grievance. But a few years later, in Ruotolo v. City of New York, 514 F.3d 184 (2d Cir. 2008), the Second Circuit seemed to emphasize the speaker’s motive in speaking out in determining whether the speech was calculated to address her personal grievance. In other words, Ruotolo could be interpreted to mean that the speaker’s personal motive in speaking out is dispositive and that the speech is not protected under the First Amendment if it addressed in some way his own grievances.

So which is it? Reuland or Ruotolo? The Second Circuit (Cabranes, Hall and Gleeson), clears it up, stating, “To the extent that our precedents have been less than clear, we reaffirm today our holding in Reuland: a speaker’s motive is not dispositive in determining whether his or her speech addresses a matter of public concern.” The Supreme Court wants it that way, the Second Circuit notes. The Justices held in the seminal public employee free speech case, Connick v. Myers, 461 U.S. 138 (1983), that an assistant district attorney was found to have engaged in public concern speech in speaking out on matters which mirrored her personal grievances.

The Second Circuit cautions that “this holding does not negate the fact that ... 'speech on a purely private matter, such as an employee’s dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern.’ An employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking ‘upon matters only of personal interest.’ We make clear today, however, that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern.” The case is sent back to the district court for reconsideration in light of this clarification.

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