January 27, 2021

Offensive statements made by an employee concerning personal matters are not protected speech within the meaning of the First Amendment

A Job Opportunity Specialist [Specialist] employed by a New York City Department [Agency] was served with disciplinary charges* alleging that he made "discourteous and threatening statements towards staff members both at the workplace and on social media."

After Specialist's stated “I’m going to shoot up this place” he was placed on pre-trial suspension without pay for 30 days. Specialist, however, continued to post  statements targeting an administrative superior and his co-workers on his non-private personal Instagram account that were deemed discourteous by the Agency . In addition, the Agency alleged that these statements included racial epithets.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia ruled that the offending statements were not protected speech within the meaning of the First Amendment as they were not expressed by Specialist "acting in the role of a private citizen regarding a matter of public concern." 

In the words of the ALJ, "Here, the four discourteous statements made on [Specialist's] Instagram videos related to his personal grievances with his supervisor and co-workers, and not tomatters of public concern. Accordingly, such statements are not protected speech."

In addition, the ALJ found that Specialist did not take any responsibility for his actions or express any regret.

Judge Garcia recommended the termination of Specialist's employment in consideration of the fact that Specialist had a significant prior disciplinary record.

* The decision notes that the Agency alleged that Specialist also violated other provisions of the Agency's Code of Conduct, including rules prohibiting an employee from conduct detrimental to the agency, or activity that would compromise the effectiveness of an employee in the performance of the employee’s duties. The decision notes that these violations were "never specified in [the Agency's charges] or at trial how Specialist violated these rules" and were not considered by the Administrative Law Judge in arriving at his decision.

Click HERE to access the text of the ALJ's decision.

 

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