Link to Case
Keywords: First Amendment, “official duties”, Garcetti v. Ceballos
Panel: Jacobs, CJ, Walker, and Calabresi
Opinion by: Walker, Dissent by: Calaberesi
Appeal from: EDNY (Glasser, USDJ)
Result below: SJ Granted
Result: Affirmed
"Official Duties" exemption from First Amendment protection
Plaintiff, a former fifth grade teacher in the New York City public school system, claims that he was subject to “acts of intimidation, harassment, workplace abuse, and deliberate attempts to undermine [his] authority” in retaliation for his union grievance that challenged the school assistant principal’s decision not to discipline a student who had thrown a book at plaintiff during class. The district court dismissed the claim, holding that Weintraub’s grievance was filed “pursuant to official duties” and therefore exempt from First Amendment protection under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), a 5-4 decision by the court’s right-wing block, that held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
The panel majority holds that plaintiff, “by filing a grievance with his union to complain about his supervisor’s failure to discipline a child in his classroom, was speaking pursuant to his official duties and thus not as a citizen. Accordingly, [plaintiff's] speech was not protected by the First Amendment.”
Judge Calabresi dissents, noting that Garcetti “lends itself to multiple interpretations” and that the majority’s decision to construe it broadly is not compelled by the opinion itself. Judge Calabresi would hold that an employee’s speech is “pursuant to official duties” only when the employee “is required to make such speech in the course of fulfilling his job duties.” Here, there is nothing in the record to indicate that plaintiff was required to bring the grievance.
