Teacher’s filing of union grievance did not constitute protected First Amendment speech
In a 2-1 split, a three judge panel of the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) has ruled that a former teacher failed to state a valid claim for First Amendment retaliation based on his filing of union grievance because his grievance was filed pursuant to official duties and, therefore, was not protected speech. David Weintraub was employed by the New York City school system as a elementary school teacher. He was assigned to P.S. 274. After a student threw a book at him, Weintraub sent the student to the assistant principal, who returned the student to Weintraub’s classroom. The next day the student repeated his behavior. Weintraub again sent him to the assistant principal, who again returned the student to the classroom. Concerned about the failure of the school administration to discipline the student, Weintraub filed a formal grievance with the union. He also informed other teachers about the incidents and his plan to file a union grievance. Weintraub alleged that because of his complaints, including filing the grievance, school officials retaliated against him. Specifically, Weintraub claims that he received unfounded negative classroom evaluations, performance reviews, and disciplinary reports; was wrongfully accused of sexually abusing a student and abandoning his class; was arrested for misdemeanor attempted assault of another teacher on allegedly false grounds; and was ultimately terminated. He filed suit in federal district court against the school district, raising several claims, including a First Amendment retaliation claim. The court denied the school district’s motion for summary judgment on the retaliation claim. It concluded that complaints regarding a school administration’s failure to address discipline problems in the classroom related to a matter of public concern “regardless of whether that speech comes from a[n] elected official, citizen, or teacher.” The district court, therefore, held that Weintraub’s complaints to the assistant principal and the subsequent grievance were speech entitled to First Amendment protection.
After the U.S. Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the school district requested the district court reconsider its ruling denying summary judgment on the retaliation claim. In Garcetti, the Supreme Court ruled that a public employee’s speech made pursuant to his/her official duties is protected by the First Amendment. Upon reconsideration, the court granted in part and denied in part the school district’s motion for summary judgment on the First Amendment retaliation claim. It determined, based on Garcetti and cases from other federal circuits applying Garcetti in similar situations, that Weintraub’s private conversation with the vice principal and the formal grievance itself were not protected speech because Weintraub was speaking as an employee pursuing his complaint about unsatisfactory working conditions through official channels. However, it expressed the opinion that the law might be unsettled in regard to the specific issue “whether a public employee acts as an ‘employee,’ and not as a ‘citizen,’ when he notifies his supervisors, either formally or informally, of an issue regarding the safety of his workplace that touches upon a matter of public concern, as well as on the employee’s own private interests.” It also noted that the issue was one of first impression in the Second Circuit. The district court then dismissed Weintraub’s retaliation claims based on his conversation with the assistant principal and the filing of the union grievance.
The Second Circuit affirmed the district court’s decision. The appeals court pointed out that Supreme Court employee-speech jurisprudence strives to balance the interests of the public employee, as a citizen, to comment on matters of public concern and the interest of the government, as an employer, to promote the efficiency of the public services it performs through its employees. In keeping with those principles it found that Garcetti had further restricted the universe of protected employee speech by holding “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” It stated: “If [we] determine[] that [Weintraub] either did not speak as a citizen or did not speak on a matter of public concern, ‘[he] has no First Amendment cause of action based on his . . . employer’s reaction to the speech.’” Because the appeals court found that when Weintraub filed his union grievance regarding the assistant principal’s failure to discipline the student in his classroom, Weintraub was speaking pursuant to his official duties and not as a citizen, his speech was not protected per Garcetti. It was, therefore, unnecessary to address whether the speech related to a matter of public concern.
The appeals court stated: “We join [the Fifth, Seventh, Ninth, Tenth and Eleventh] circuits and conclude that, under the First Amendment, speech can be ‘pursuant to’ a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.” Based on this conclusion, it found Weintraub’s grievance was “pursuant to” his official duties “because it was ‘part-and-parcel of his concerns’ about his ability to ‘properly execute his duties’ … as a public school teacher -- namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.”
The court found support for its conclusion that Weintraub spoke pursuant to job duties in the fact that there is “no relevant citizen analogue for the employee grievance.” While acknowledging that the “lack of a citizen analogue is not dispositive in this case, it stressed that the “lodging of a union grievance is not a form or channel of discourse available to non-employee citizens.” It concluded the “grievance filing, therefore, lacked a relevant analogue to citizen speech and retain[ed no] possibility of constitutional protection.”
The dissent took issue with the majority’s decision to construe Garcetti broadly and, public employees’ First Amendment protections narrowly. It read the majority opinion as holding that “a public employee’s speech is “pursuant to official duties” and accordingly unprotected when it both (a) is in furtherance of the employee’s core duties,” and (b) ha[s] no relevant analogue to citizen speech.” It concluded that the majority’s two prong test “would allow retaliation against much speech that seems to me to require protection and to remain protected after Garcetti.”
Weintraub v. Board of Educ., No. 07-2376 (2d Cir. Jan. 27, 2010)
[Editor’s Note: In August 2009, a federal district court in New York state ruled that a school social worker stated a valid cause of action for First Amendment retaliation under § 1983 based on statements she had made to a newspaper reporter and the police about the possible sexual abuse of a student by a teacher. The district court concluded that the social worker’s speech was protected by the First Amendment’s Free Speech Clause because the statements were made as a private citizen on a matter of public concern, rather than as part of her official duties. A summary of the opinion is available below.]
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