The plaintiffs [Plaintiffs] in the action appealed the dismissed their First Amendment retaliation claim under 42 U.S.C. §1983 against the County of Rockland and additional named defendants [Defendants]. Plaintiffs alleged that Defendants terminated them in retaliation for allegations made concerning the Defendants. The federal district court concluded that Plaintiffs did not engage in speech as a private citizen and thus their First Amendment retaliation claim failed as a matter of law. The United States Circuit Court of Appeals for the Second Circuit agreed.
Citing Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, the Circuit Court opined in order to prevail, a government employee or contractor must establish that "(1) his speech was protected by the First Amendment; (2) he suffered an adverse employment action by the [employer]; and (3) there was a causal connection between the adverse action and his speech."
Further, said the Circuit Court, to determine whether a public employee speaks as a citizen for purposes of a First Amendment retaliation claim, courts ask whether (1) “the speech falls outside of the employee’s official responsibilities,” and (2) “a civilian analogue exists.”
Such a determination requires an examination of “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two”. The speech at issue 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.”*
Here, opined the Circuit Court of Appeals, "the uncontroverted evidence in the record demonstrates that [Plaintiff] engaged in speech as an employee, rather than as a [private] citizen." Accordingly, the Circuit Court held "the district court properly granted summary judgment for [Defendants] on the [Plaintiffs'] First Amendment retaliation claim."
* The Circuit Court noted that in Lane v. Franks, 573 U.S. 228, the Supreme Court had emphasized that “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee -- rather than citizen -- speech .... the critical question ... is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”
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