Thursday, October 7, 2021

Fireman may bring First Amendment case over fire-origin cover-up

The Court of Appeals holds that a New York City firefighter states a claim for free speech retaliation against the fire department for refusing to alter a report about the origins of a fire that seriously damaged a building and led to the death of a firefighter. This is one of the rare cases where the plaintiff survives a motion to dismiss a free speech retaliation claim in the Second Circuit.

The case is Specht v. City of New York, issued on October 6. Pursuant to his duties as a fire investigator, plaintiff determined that the fire was caused by an outside film crew. Worried about offending the lucrative movie industry which often films throughout New York City, plaintiff's supervisors wanted plaintiff to find that a faulty boiler caused the fire. Plaintiff would not alter the report, and after he was removed from the investigation, his superiors issued a report that blamed the boiler. Plaintiff went on to tell the Department of Investigation and the fire marshals about this cover-up, and his notice of claim against the supervisors was covered in the Daily News.

Is there a speech retaliation claim? The Court of Appeals (Parker, Newman and Cabranes), says Yes. In 2010, the Second Circuit held in Weintraub v. Board of Education that a government employee does not engage in protected citizen speech when his speech is "part and parcel" of his job duties. That standard scaled back these claims, on authority of the Supreme Court's 2006 ruling in Garcetti v. Ceballos. Since many government employees who speak out about corruption learn about this misconduct through their job duties, the Weintraub/Garcetti language his killed off many speech retaliation claims. But not this one.

Plaintiff pleads a plausible claim because (1) government misconduct is almost always a matter of public concern and (2), on the Garcetti issue, while plaintiff learned about the cover-up through his usual job duties, "this case involves the refusal to file a false report, which is different than simply filing a report. We have been clear that a refusal to file a false report may receive First Amendment protection. In Jackler [v. Byrne], we concluded that the appellant’s refusals to obey demands to file false statements constituted speech activity that was significantly different from the mere filing of a report." Moreover, plaintiff's speech to outside government agencies also was not pursuant to his job duties because it was not his job to report misconduct in this manner; he was only responsible for preparing internal reports, not blowing the whistle outside the chain of command. The main event in this ruling is the Garcetti holding.

I argued Jackler in 2011. I did not think I would see another First Amendment case involving a governmental employee's refusal to falsify a report, which meant the complex holding in Jackler was unique on its facts, maybe the reason the Supreme Court did not grant the certiorari petition filed by the defendants in Jackler. That holding has now been applied in this case, confirming that the Court of Appeals will not tolerate governmental cover-ups like this, and that these facts will get around the broad Garcetti holding.

The Court further holds that plaintiff makes out a retaliation case because the adverse actions (being placed on modified duty, being forced to turn in his gun, badge and ID card), took place within five months after plaintiff spoke out. That brings this case within the legitimate time-frame for retaliation claims. I have seen recent district court cases that have tried to narrow the temporal proximity for retaliation cases, but this case deems the five-month analysis a noncontroversial time period.

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