Whistleblower Law Blog

Topic: U.S. Constitution

Connecticut Supreme Court Grants Constitutional Protection to Whistleblowers in the Public and Private Sectors

In a recent opinion from the Supreme Court of the State of Connecticut, Trusz v. UBS Realty Investors, LLC, __ A.3d __, 319 Conn. 175 (Conn. 2015), the Court held that First Amendment protection “applies to speech in a public workplace under the state constitution and that [the state’s whistleblower protection law] extends the same protection to employee speech in a private workplace for claims involving the state constitution.” This ruling from Connecticut’s highest court comes a little more than a year after the U.S. Supreme Court’s ruling in Lane v. Franks, 134 S. Ct. 2369 (2014), which narrowed the strict holding of Garcetti v. Ceballos, 547 U.S. 410 (2006), and allows for First Amendment protection for government employees who testify truthfully under oath about matters related to their employment. This expansion of constitutional protection to public employees by the Connecticut Supreme Court is a hopeful sign for enhancing the protection of whistleblowers nationwide.

In Garcetti v. Ceballos, the U.S. Supreme Court held that First Amendment protection applied to the speech of government employees only when those employees spoke about non-job related duties. But last year, in Lane v. Franks, the Supreme Court opened the door to First Amendment protection for public employees’ speech related to job duties by considering both the employee’s “obligation to the court and society at large [to tell the truth in testimony]” and whether an absence of such protection “would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.” Ultimately, in Lane, the Supreme Court held that the First Amendment affords protection to public employees who testify truthfully about job-related duties.

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Appeals Court Rules that First Amendment Protects NYPD Officer from Retaliation for Opposing Stop-and-Frisk Quotas

In Matthews v. City of New York, the Second Circuit Court of Appeals overturned a holding by the U.S. District Court for the Southern District of New York (SDNY) that retaliation for a police officer’s concerns about stop-and-frisk policy was not barred because the officer had expressed his concerns in his role as a public employee. The Second Circuit held that the officer’s public role was to execute the policy, but he had expressed his concerns about the legality of the policy in the role of a private citizen.

The officer, Craig Matthews, alleged that his supervisors in the 42nd precinct developed an illegal quota system and that any officers failing to meet the quotas were identified and subject to retaliation. After Officer Matthews began reporting the allegedly illegal nature of the quota system, the NYPD retaliated against him by giving him punitive assignments and poor performance evaluations, denying him overtime and leave, separating him from his longtime partner, and subjecting him to constant harassment and threats.

Matthews asked the SDNY to find that the NYPD’s retaliatory actions violated his free speech rights under both the First Amendment and the New York State Constitution. But the Southern District granted the City’s Motion for Summary Judgment, finding that Matthews made his complaints as a public employee, and not as a private citizen.

On appeal, the Second Circuit disagreed with the SDNY, and remanded the case for further proceedings. The Second Circuit reasoned that Matthews’ opinions about the quota system and any corresponding complaints were not related to his actual or functional job responsibilities. Therefore, Matthews made these complaints in his capacity as a private citizen. The Second Circuit reasoned that, if a public employee’s job responsibilities do not entail creating, implementing, or providing feedback on a policy, any complaints made by the employee about the policy are made as a private citizen and are protected speech.

This decision further chips away at the United States Supreme Court decision in Lane v. Franks, which held that the First Amendment can protect government workers from punishment if they are testifying under oath about job-related matters.

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First Amendment Protection: The Start of a Comeback?

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

With Lane v. Franks, the U.S. Supreme Court has backed off slightly from the absolutism of a 2006 decision that limited the free-speech rights of public employees — and, in the process, has created a framework that may allow more moderation in future cases.

At one level the Court’s holding yesterday — that the First Amendment can protect government workers from punishment for testifying under oath about job-related matters — was unremarkable, even obvious.

But while Justice Sonia Sotomayor offered her 9-0 opinion mainly as a clarification of Garcetti v. Ceballos, which denies government employees constitutional protection for “speech made pursuant to [their] official duties,” she also added two new considerations that promise to bring more workplace speech under the First Amendment’s shield:

  • Whether an employee is acting on a civic obligation to “society at large”
  • Whether allowing retaliation would discourage important types of whistleblowing

In so doing, Lane hearkened back to the more employee-centric balancing test of 1968’s Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., which had stood mostly undisturbed until the 5-4 ruling in Garcetti.

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Fourth Circuit: Facebook “Like” Is Protected Speech in Retaliation Case

Clicking “Like” on Facebook can be a protected activity in a workplace retaliation case, a federal appeals court said, confirming that employers must treat workers’ online behavior with the same respect as its offline equivalent.

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Tenth Circuit Rejects “Duty Speech” Defense in s. 1983 Case

In Thomas v. City of Blanchard, the Tenth Circuit held that the district court erred in concluding that Thomas’s speech was outside the scope of First Amendment protections under Garcetti v. Ceballos, 547 U.S. 410 (2006).  Thomas, a former building code inspector for the City of Blanchard, alleged that he was terminated for blowing the whistle about what he perceived to be false certifications of home inspections.  The district court granted the City’s motion for summary judgment, concluding that Thomas’s speech was not protected under the First Amendment because his report to the Oklahoma State Bureau Investigation (“OSBI”) was made pursuant to his professional duties. 

The Tenth Circuit reversed, concluding that Thomas’s official duties did not include a duty to report perceived criminal violations to the OSBI and thus, his disclosure was protected under the First Amendment.  Finding genuine issues of material fact as to whether Thomas was fired for exercising his First Amendment rights, the Tenth Circuit remanded the case to the district court. 

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Ninth Circuit Strengthens Public Employee Whistleblower Protection

In Garcetti v. Ceballos, the Supreme Court held that whistleblowing by public employees in the course of performing their official job duties is not protected under the First Amendment as a matter of law.  As a result of the Garcetti decision, many public employee whistleblower retaliation claims have been dismissed on summary judgment.  In a recent decision, Posey v. Lake Pend, the Ninth Circuit held that the question of whether a public employee is speaking on matters of public concern pursuant to her official duties is a mixed question of fact and law, and therefore should be decided by the jury.  This decision is significant because it increases the odds of public employee whistleblower retaliation claims surviving summary judgment where they can prove that:  (1) they spoke on a matter of public concern; (2) the state lacks adequate justification for treating the plaintiff differently from other members of the general public; and (3) there is a genuine issue of material fact as to whether the employee blew the whistle outside the scope of their job responsibilities. 

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