2.112 - B. Employee Versus Citizen

• Jurisdiction: New York

b. Employee Versus Citizen

In Garcetti v. Ceballos,¹³⁶⁸ the Court held that a speech made by a public employee pursuant to her or his official duties is unprotected under the First Amendment, regardless of the subject matter of the communication. The Court majority reasoned that, as a matter of law, when an employee communicates as part of her or his official job duties, such communications are made as an employee and not as a citizen and, therefore, the speech is unprotected under the First Amendment. In dicta, the Court left open the possibility that a different standard may be applicable in a public academic setting.

In Garcetti, the plaintiff, a supervising deputy district attorney, claimed that after he had advised his superiors, in a memorandum and during a meeting, of his conclusion that a policy affidavit in support of a warrant contained substantial misrepresentations, he was the subject of retaliation. During the litigation, the plaintiff conceded that his communications were a part of his official duties.

An important issue left open by the Garcetti decision is whether the issue of an employee’s official duties is a factual issue to be determined by a jury or a legal issue to be determined by the court. The decision states that the inquiry about what constitutes official duties is a “practical one” and emphasized that a job description is not conclusive evidence on the issue.

In 2014, a unanimous Court in Lane v. Franks¹³⁶⁹ narrowed, to a limited degree, the breadth of Garcetti’s per se exclusionary rule when it ruled that the “First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities.”¹³⁷⁰ The Court reached its holding even though the administrator testified to facts he learned as part of his official duties. The Lane Court refused to decide whether the plaintiff would have enjoyed such protection if testifying in Court fell within the scope of his normal duties. It grounded its decision in part on the unique nature of compelled testimony under oath. As the Court explained, “[w]hen the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.”¹³⁷¹

Garcetti and Lane impact the viability of many earlier decisions by the Second Circuit and other circuits concerning the scope of First Amendment protections for public employees. All pre-Garcetti First Amendment precedent must be analyzed in the context of the bright-line standard enunciated in Garcetti.

In Weintraub v. Board of Education of the City School District of New York,¹³⁷² the Second Circuit dismissed a First Amendment complaint by a fifth-grade schoolteacher who alleged that he had been the subject of retaliation for filing a contract grievance with his union about the refusal of the district to discipline a student who twice threw a book during class. The court reasoned that under Garcetti, the teacher’s grievance was not protected by the First Amendment because it was in furtherance of one of his core duties as a teacher. In reaching its decision, the Second Circuit joined other circuits that have interpreted Garcetti “pursuant to” standard to include job duties that are not required by a job description or in response to an employer’s request.¹³⁷³ Notably, the plaintiff in Weintraub did not plead a pendant state law claim under Labor Law § 201-d(2)(d) premised upon a claim that the filing of a grievance with his union constituted the exercise of rights guaranteed by the Taylor Law.

However, speech can relate to subjects that touch upon an employee’s duties without falling afoul of Garcetti; indeed, the Court in Lane...