A few years ago, the U.S. Supreme Court came out with a fairly significant decision in Garcetti v. Ceballos which held that an employee’s speech relating to a person’s official job duties was not protected under the First Amendment.

This week, the Second Circuit revisited some of the First Amendment jurisprudence and ended up deciding a case on another ground — that a reasonable jury could not help but find that the employee  would have suffered the same alleged adverse employment actions even in the absence of his allegedly protected activity. 

This ground is found in another Supreme court case, Mt. Healthy City Bd. of Ed. v. Doyle, (from 1977) that is often overlooked.

So what did the Second Circuit decide? Well, in Anemone v. MTA (download here) it held that bad conduct cannot be cleaned up by being associated with "protected" conduct.

The constitutional principle at stake [, i.e., freedom from retaliation for protected speech,] is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the [protected] conduct. …  This principle prevents an employee who engages in unprotected conduct from escaping discipline for that conduct by the fact that it was related to protected conduct … and ensures that an “employee who makes an unprotected statement is not immunized from discipline by the fact that this statement is surrounded by protected statements.

Here, the Court found that the insubordination of the employee and "deception" was enough.  The case is similar in some ways to a recent case out of the Seventh Circuit (Formella v. U.S. Dep’t of Labor, download here) that held that an employee must behave "civilly" while engaging in protected activity.  

Oh, for good measure too, the Second Circuit also held that some of the speech is not protected under Garcetti too because it was part of his job duties.   

What’s the takeaway for employers?

Even "whistleblowers" or employees who claim to engage in protected activity can still be held to the same standards as employees when it comes to behavior.  Insubordination is one area that courts have recognized that employers still must be able to control.