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”).
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.htmThe 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/.