Wednesday, June 23, 2010

Garcetti snags another whistleblower claim

To put it mildly, things changed after the Supreme Court issued Garcetti v. Ceballos, 547 U.S. 410 (2006), holding that the First Amendment does not protect public employee speech or whistleblowing if the speech is made pursuant to the plaintiff's "official duties." The lower courts are now grappling with the meaning of "official duties speech," and cases that would have gone to trial only a few years ago are now being dismissed.

The case is Drolett v. DeMarco, a summary order decided on June 16. Drolett was a police officer in Town of East Windsor, Connecticut. Management had in place a "chain of command" dictating how the officers were to raise their concerns about the department. Drolett did not follow that chain of command when he sent an anonymous letter to the local police commission criticizing the department's personnel and other practices. An example of Drolett's criticisms is the following statement: "Many shifts are without supervisors or even experienced officers because some people are not required to work their scheduled shifts. They are even handed the opportunity to get off them." Management eventually figured out that Drolett had written the letter and it disciplined him for this speech, triggering this First Amendment lawsuit.

Pre-Garcetti, Drolett's letter raised matters of public concern. The district court certainly thought so, denying the summary judgment motion on that ground. The district court also held that Garcetti did not compel dismissal of this case because it was not clear whether Drolett's speech was pursuant to his official duties. The district court reasoned, "there is no evidence that Drolett's official duties included complaining about all kinds of workplace mismanagement, whatever the context in which those complaints were made." In particular, the in-house speech rules did not compel Drolett to make complaints; he was only permitted to do so. For plaintiffs' lawyers in the Second Circuit, this was not a bad ruling from the district court in that it provided language that would allow them to get around Garcetti's holding. The district court's ruling on this issue is now a nullity.

Unhappy with this ruling, the Town filed an interlocutory appeal on qualified immunity grounds. You can take up an early appeal if the law was not clearly-established and defendant therefore did not know for sure that it was violating plaintiff's constitutional liberties.

In a summary order, the Court of Appeals rejects the district court's analysis and dismisses the complaint, at least as to the individual defendants who asserted qualified immunity. The Court (Cabranes, Hall and Raggi) reasons as follows:

[T]hough Drolett had a duty to raise his concerns about the management of the police department within the chain of command, he did not do so. Instead, he raised his concerns outside the chain of command. Had Drolett raised his concerns within the chain of command, that speech likely would have been made 'pursuant to his official duties,' and therefore not protected by the First Amendment. The courts have yet to consider whether speech that would not enjoy First Amendment protection if made pursuant to an official duty can claim such protection when made in violation of that duty. We therefore conclude that even if the actions of defendants did violate Drolett's First Amendment rights, those rights were not clearly established at the time of the discipline. Accordingly, we conclude that defendants are entitled to qualified immunity.

The ruling by the Court of Appeals is short and does not tell us the underlying facts. For that you have to read the district court opinion, which places this case in context. The takeaway is that the First Amendment may not protect you from discipline if you speak out of turn at work on important public matters. Based on language in the Garcetti decision, there was a view among Garcetti litigators that speech outside the workplace that related to official duties may get around Garcetti. That argument seems to be impliedly rejected by the Second Circuit. The Circuit further rejects the district court's view that factual disputes exist as to whether Drolett blew the whistle pursuant to his official duties. In reaching this finding, the Court of Appeals impliedly rejects another court ruling (cited in the district court's analysis) that plaintiff's lawyers cite from time to time, Kodrea v. City of Kokomo, 458 F. Supp. 2d 857 (S.D. Ind. 2007). The Second Circuit also treats as a unique issue (sufficient to confer immunity among defendants) whether speaking outside the chain-of-command constitutes a clearly defined act of free speech.

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