Police officer has a viable retaliation case under the First Amendment

The Court of Appeals holds that a police officer may challenge a promotion denial that he claims was in retaliation for speaking out against possible supervisory misconduct.

The case is Beatty v. Vafeades, a summary order issued on October 26. Plaintiff was was a sergeant with police department in Nassau County. In 2017, he saw his supervisor working behind the counter at a bagel shop and eventually came to believe Vafeades owned and operated the business with two other police officers who were subordinate to Vafeades. Was this a conflict of interest? Maybe. Plaintiff reported this to Inspector Glenn Quinn, the department's second-in-command, who in turn told the Police Commissioner Charles Gennario, about it.

Months later, Vafeades replaced Gennario as Police Commissioner. Beatty says Vafeades retaliated against him for reporting the bagel-shop arrangement. Among other things, Beatty claimed that he was passed over for a promotion.

The district court dismissed the case, holding that plaintiff's speech was unprotected under the First Amendment because he did not speak as a citizen but an employee. That would make this a Garcetti case, named after the Supreme Court's 2006 ruling that public employees who speak as an employee and not as a citizen may be disciplined for their speech. The Second Circuit (Parker, Nathan, and Kaplan [D.J.]) reverses and returns this case to the Eastern District of New York for an exciting trial.

Whether plaintiff spoke as a citizen or employee turns on whether the speech ordinarily falls within the scope of the employee's responsibilities. Courts examine the employee's actual, day-to-day responsibilities rather than simply rely on formal job descriptions. We turn to Matthews v. City of New York, 779 F.3d 167 (2d Cir. 2015), where the court said a police officer who complained to commanding officers about a precinct-wide arrest spoke as a citizen, as reporting supervisory misconduct was not part of his ordinary job duties. That reasoning applies here. 

Beatty's responsibilities as a sergeant involved supervising police officers. He was not responsible for monitoring the conduct of his own supervisors, much less investigating their outside business arrangements. The department's job description confirmed that supervisory officers were accountable for the proper performance of officers under their supervision. The fact that Beatty had a general obligation to report violations of departmental rules did not change the analysis. The Matthews precedent rejected the argument that a general duty to report misconduct determines whether an employee speaks pursuant to his official duties. Otherwise, public employers could undermine First Amendment protections simply by imposing broadly worded reporting obligations on their employees.

Plaintiff also wins the appeal because his speech had a citizen analogue. Plaintiff raised the issue in person with commanding officers at police headquarters. While defendants argued that this was different from an anonymous civilian's written complaint about the same subject to the Village's human resources department, the department manual expressly permitted members of the public to lodge complaints at police headquarters with the ranking supervisory officer on duty. Complaints could be made in person, in writing, or by telephone. Since an ordinary citizen had access to the same or a similar reporting channel, plaintiff spoke as a citizen, as well.