Garcetti in Action - No Bite for Dog Trainer
Posted
6:03 PM
by Michael Fox
In 2006, the Supreme Court limited the circumstances in which a government employee could bring a 1st Amendment retaliation suit against his or her employer by holding that comments made in the course of their regular duties were not protected speech. See The Private Sector Implications of Garcetti v. Ceballos.
Last week, the police officer primarily responsible for establishing the canine handling unit for Circleville, Ohio, found out just what those restrictions were about. Although he had successfully prevailed against defendants' motion for summary judgment in the district court, he had that victory taken away at the appellate level based in part on Garcetti.
What Officer Haynes viewed as public speech — his memorandum to the Chief of Police complaining of restrictions on the canine unit's training schedule:
Now we are about to change boats mid-stream and I expect that there will be serious negative consequences for doing so. Words like “deliberate indifference,” “negligence” and “failure to train” will someday be brought up with respect to the Circleville Police Department’s Canine Program. My response will be, “I told them so.”
to the 6th Circuit was nothing more than the “the quintessential employee beef: management has acted incompetently.” Haynes v. City of Circleville, Ohio (6th Cir. 1/25/07)[pdf]. And employee beefs, legitimate or not, are no longer (if they ever were) the grist of successful 1st amendment claims.. . . You know, or should know, that any deviation from the old training regime will probably result in an expensive learning experience. But I will not be paying the bill. You have received my last words of caution. ...
Author's note:Although I could justify this post for the legal point, candor requires me to note that I mainly did it because Circleville, Ohio (the Pumpkin Capitol of the world) was the scene of the first formal legal hearing where I appeared as an "employer's lawyer." Actually, appear might not be technically correct, since in the summer of 1974, Richard Nixon was being forced out of the White House in disgrace, and I was a summer clerk at the (still) wonderful Columbus based law firm, Vorys, Sater, Seymour and Pease having finished only my first two years of law school at the University of Texas School of Law. Although I may not have been "on the record" as appearing, I did do the background investigation, sat at counsel table and I think helped write the post-hearing brief in an NLRB unfair labor practice hearing conducted by an NLRB administrative law judge.
What would have made this an even better post was if Judge R. Guy Cole, Jr. had been on the panel (he wasn't) since he was one of my fellow clerks at Vorys, Sater in the summer of '74.
Labels: constitutional rights
D.C.Cir. Ducks A Constitutional Bullet
Veitch would have us confront a rather troubling constitutional question: whether chaplains in the armed services can be required to endorse “pluralism” in their religious practices. The services are understandably concerned about unit morale. And those of us old enough to remember World War II movies will recall scenes of chaplains at the front line performing services for soldiers of different religions. On the other hand, Veitch’s argument that a chaplain cannot be obliged to preach counter to his or her religious beliefs consistent with the First Amendment is hardly a frivolous claim. Fortunately for us—and unfortunately for Veitch—we need not decide this difficult question. We agree with the district court that Veitch may not raise this issue because his resignation was voluntary and because the Navy did not act unreasonably in refusing to permit Veitch to withdraw his resignation. Labels: constitutional rights, religion
"Untucked Shirts" Not A Constitutional Right
A closer question according to the Court was that of one of the plaintiffs who in addition to not wanting to tuck his shirt in, also claimed a constitutional right to show his tattoo — USN —which he said showed his “support, loyalty and affection for the U.S. Navy.” Though closer, still not a winner. First, with respect to the question of qualified immunity of the Park Commissioner, the Court held that it was not a sufficiently clear right to defeat the claim of qualified immunity. But the district court had also granted summary judgment for the state on substantive grounds, including no first amendment right to show the tattoo. On appeal, the 6th Circuit found the tattooed plaintiff's refusal "to comply with the dress code provided an independent basis for his dismissal, " sparing the Court the need to address the closer question of the First Amendment protection of his tattoo. Labels: appearance, constitutional rights
Quick, Judge Owen Where Are You? 5th Circuit Affirms Summary Judgment for Plaintiff
Labels: constitutional rights
Posted
5:38 PM
by Michael Fox
It was not just the 6th Circuit which was happy to avoid a tough constitutional call, see the discussion of the first amendment status of a USN tattoo here, but the same was also true in today's decision in Veitch v. England (D.C. Cir. 11/28/06) [pdf]. The issue in Veitch arises out of a well documented fight within the military chaplain corps between evanagelical chaplains and those from more traditional faiths. See the Washington Post story from last year, Military Wrestles With Disharmony Among Chaplains.
The Court explained it this way:
Although ducking the constitutional question, the Court does spend the rest of its opinion, including a concurrence, dispatching the resigned chaplain's argument that he was constructively discharged because of religious harassment. This is certainly not the last word on this issue.
Posted
4:46 PM
by Michael Fox
At least according to the 6th Circuit. Roberts v. Ward (6th Cir. 11/27/06) [pdf]. The question got posed after the Kentucky parks department decided to clean up their image by implementing a new dress code which included:hair length for men above the collar, no visible body piercings with exception of in the ear lobes for women only, no visible tattoos (long sleeves, pants, bandages, or wrist bands are approved ways to cover), and the proper wearing of the prescribed uniform in each department, which in most cases includes tucking in shirts and blouses.
Surprisingly it was the tucked-in rule that seemed to cause the most controversy.
When four workers pushed the issue to the point of losing their jobs, they sued claiming their constitutional rights had been violated.
The tucked-in plaintiffs did not fare well. The Court found that the policy:
Posted
2:01 PM
by Michael Fox
More to the point on the Salge case, it is somewhat unusual for a plaintiff to win summary judgment in any employment case as there are usually factual questions which clearly preclude it. So much so in fact that such motions are rarely filed. Here though there was no dispute that a school secretary was fired for answering a reporter's question about the contract status of the principal that she worked for. Whether that involved public or personal speech and how it fared in the balancing between the employer's interests and the constitutional right of Ms. Salge, was under the circumstances a legal question. The 35 page decision is a good overview in the legal aspects that are relevant in 1st amendment retaliation cases.
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