TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

October 28, 2014

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment
2014 NY Slip Op 07270, Appellate Division, First Department

Among the issues considered in this appeal was the teacher’s [Teacher] claim that she had suffered retaliation as a result of her having sued the New York City Department of Education [NYCDE] and having made statements to the media.

The Appellate Division held that neither Teacher's lawsuit nor her statements to the media constituted protected speech under the First Amendment or Article I, §§8 and 9 of the New York Constitution “as they primarily concern personal grievances, rather than matters of public concern.”

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

As to Teacher’s claim that she had suffered age discrimination within the meaning of the State and City Human Rights Laws, respectively Executive Law §290 et seq. and the Administrative Code of City of NY §8-101 et seq., the Appellate Division said that her allegations that she was 51 years old and was treated less well than younger teachers were insufficient to support her claims.

Addressing Teacher’s hostile work environment allegations, the court said that these claims also fail “because [NYCDE’s] alleged behavior amounts to "no more than petty slights or trivial inconveniences."

In Clauberg v State of New York, 95 AD3d 1385, the Appellate Division explained that “To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animusAll of the circumstances must be considered, including "the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”

In a case involving similar “free speech - retaliation” issues, Golodner v Berliner, USCA, 2nd Circuit, Docket #12-1173, Golodner filed a 42 USSC 1983 action against the City of New London  and two City officials, alleging the defendants retaliated against him for exercising his rights under the First Amendment when he filed an earlier lawsuit against the City and several of its police officers (“Golodner I”).

The United States District Court for the District of Connecticut held that the speech in Golodner I constituted speech on a matter of public concern protected under the First Amendment, and that Golodner’s right to engage in this form of speech was clearly established at the time of the alleged retaliation. The Circuit Court of Appeals affirmed the district court’s denial of the City's motion for summary judgment and remanded the case for further proceedings.

The "Teacher" decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_07270.htm


The Golodner decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/doc/12-1173_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/hilite/
.

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

http://booklocker.com/books/7401.html


The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html


General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on

http://booklocker.com/books/3916.html


Please Note:

Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.

THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.