It has been over a year since the Supreme Court’s decision in Garcetti v. Ceballos, which held that where a public employee speaks as an employee and not a public citizen, such speech is not protected under the First Amendment.
Courts applying the decision have tried to impart some parameters to the Court’s decision such as whether an employee’s job description is "controlling" as to what those job duties actually are. (One issue not yet resolved– and the subject of a future blog post — is the question of whether Garcetti applies to employees at private companies. A split in authority has been developing in the state courts on that issue, although the majority appears to answer that question "yes".)
One interesting case came down from the U.S. District Court in Connecticut last month. In O’Dea v. Shea, et al, the court granted a state agency’s motion for summary judgment where the employee claimed that she was given a poor performance review in violation of her First Amendment rights.
But the reasoning behind the decision shows that Connecticut courts have begun to apply the Supreme Court’s ruling in Garcetti v. Ceballos. The background of the case is straightforward:
- The Plaintiff became Director of Acute Nursing at Blue Hills Hospital in central Connecticut.
- In the spring of 2004, her supervisor purchased refurbished used furniture for the unit.
- According to the plaintiff, she complained that bringing in used furniture into the facility would lead to more insect infestations.
- In May 2004, the plaintiff received a "satisfactory" rating on her performance review and sued on that basis.
Rather than address the issue of an adverse job action (which would seem to be the "easier" of the questions), the court ruled that Garcetti foreclosed her case. "An Employee may still be performing his job when he speaks, even if that expression is not demanded of him." The court emphasized, thus, that courts should not look at formal job descriptions but rather to the "practical" considerations of an employee’s job. Thus, the court — in essence — found that the job description was not dispositive of the issue.
Because the court concluded that the employee raised her concerns in her "professional capacity" as an employee, and not as a private citizen, her speech was not protected by the First Amendment.
The case reinforces the notion that First Amendment claims (including those brought under comparable state laws) by employees face an uphill battle. For the time being, not even narrowly drafted job position descriptions appear to be able to defeat a defense that the employee’s comments were in the course of his/her duties.
For employers that are considering revising an employee’s job duties or position description, it makes sense to include a reference to reporting safety or other concerns (if that is a legitimate part of the job). Although the employer may believe that this is implicit in particular jobs, it is helpful to have this established at a neutral point in time in writing — rather than as a company policy.