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May 03, 2011

Infringing on constitutionally protected speech

Infringing on constitutionally protected speech
Timothy M. Wrobel v County of Erie, CA2, 2007 WL. 186264

In reviewing Wrobel’s claim that Erie County had violated his right to free speech and association, the U.S. Court of Appeals for the Second Circuit said:

1. Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.

2. Conditioning public employment on the provision of support for the favored political party “unquestionably inhibits protected belief and association”.*

The court concluded, “When reasonable inferences are drawn in Wrobel’s favor, the amended complaint sufficiently alleges that Wrobel was retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration.”

The Circuit Court also noted that in Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006), it explained that “actionable retaliation” in the context of the First Amendment was employer actions that “well might have dissuaded a reasonable worker [from asserting First Amendment-protected rights]”.**

As to Wrobel’s claim that the County had violated his First Amendment free speech rights, the Circuit Court said that "While we agree with the District Court that Wrobel’s pre-transfer speech was not on a matter of public concern, and was therefore not constitutionally protected we do not agree with its conclusion that Wrobel had not sufficiently alleged actionable retaliation following his expression of protected speech.”

Wrobel alleged that “defendant Douglas Naylon implicated him as the perpetrator of a theft of government property shortly after Wrobel discussed the corruption and politicization of his place of employment with an FBI agent.” Wrobel also alleged that other county officials had bribed others to testify against him at an arbitration hearing shortly after he engaged in protected speech.

In Conrick v Myers, 461 US 1l38, the United States Supreme Court established a two-prong test with respect to claims of dismissal in retaliation for "whistle blowing." To win, the individual must prove that (1) his or her speech is protected, i.e., the speech was a matter of public concern, and (2) that the protected speech was a substantial factor in motivating the termination

These adverse actions, said the court, “are sufficient to support a First Amendment retaliation claim,” because Wrobel’s petition “sets forth the necessary nexus between [Wrobel’s] statements concerning a matter of public concern and the defendant[s’] subsequent alleged retaliatory acts.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution.***

The decision is posted on the Internet at:  


* See also §107 of the Civil Service Law setting out certain prohibitions against certain political activities and improper influence.

** The court commented that monitoring of Wrobel’s phone calls, transfer of Wrobel to a faraway location, initiation of a criminal investigation against Wrobel, and other adverse actions alleged in the amended complaint—if proven true—would be sufficient to dissuade a reasonable worker from asserting his First Amendment rights. Wrobel, said the court, adequately alleges that the adverse actions were taken in retaliation for his protected associational activity.

*** See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, where the court held that a public employee’s speech was not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

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