New York Labor and Employment Law Report
Second Circuit Court of Appeals Rejects Employee's First Amendment Retaliation Claim Against School District
September 23, 2012
On September 10, 2012, the U.S. Court of Appeals for the Second Circuit reversed a 2010 District Court decision and rejected a claim by a terminated public school district employee that she was subjected to retaliation for engaging in protected speech under the First Amendment to the U.S. Constitution. In Ross v. Lichtenfeld, the Second Circuit held that the employee's complaints upon which she based her retaliation claim were not protected by the First Amendment, and determined that the school district's superintendent was entitled to summary judgment.
Risa Ross was a payroll clerk typist for the Katonah-Lewisboro Union Free School District. Her duties included processing the school district's payroll, transmitting direct deposits, mailing checks, and notifying appropriate personnel of payroll mistakes. Between 2003 and 2006, Ross met with the school district's superintendent numerous times to express concern about payments that she believed to be improper.
In 2006, Ross was suspended with pay by the school district after it was discovered that Ross had failed to disclose on her employment application that she had been employed by three other school districts and had been discharged from her employment at each of those three school districts. During her suspension, Ross wrote to members of the board of education regarding the concerns she had previously expressed to the school district's superintendent about financial malfeasance, and her belief that she had been suspended in retaliation for raising those concerns. In those letters, Ross stated that, although she was an employee of the school district, she was writing on a "personal note" to express her frustration with the school district's administration.
The board initiated a disciplinary hearing. The hearing officer found that Ross had knowingly made false statements on her employment application, and recommended that her employment be terminated. The board then voted unanimously to terminate Ross' employment.
Ross filed four claims against the superintendent, including a claim that she was discharged in retaliation for exercising her First Amendment rights. The District Court granted the superintendent's motion for summary judgment on every claim except the First Amendment retaliation claim, which it determined should proceed to trial.
The superintendent subsequently appealed the District Court's denial of summary judgment with respect to the First Amendment retaliation claim. In its decision, the Second Circuit cited well-established precedent that a public employee speaking "as a citizen . . . on a matter of public concern" is entitled to First Amendment protection for that speech. However, a public employee speaking pursuant to his or her official duties -- and not as a private citizen -- is not entitled to First Amendment protection for that speech, even if the employee's speech is a matter of public concern. In determining whether a public employee's speech is pursuant to his or her official duties, courts examine the nature of the employee's job responsibilities, the nature of the speech, and the relationship between the two.
Ross argued, among other things, that her letters to board of education members were sent as a private citizen because she specifically stated in those letters that she was writing on a "personal note" rather than as an employee of the school district. The Second Circuit rejected this argument, holding that "an employee's characterization of her own speech is not dispositive." The Second Circuit also rejected Ross' other arguments, and held that Ross' concerns about improper payments and/or financial malfeasance were raised pursuant to her job duties as a payroll clerk typist.
Accordingly, the Second Circuit reversed the District Court's decision and determined that the superintendent was entitled to summary judgment on Ross' First Amendment retaliation claim. In so holding, the Second Circuit reinforced well-established principles of what constitutes protected free speech by public employees.
