Jottings By An Employer's Lawyer

Monday, January 29, 2007

Garcetti in Action - No Bite for Dog Trainer

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.”

. . . 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. ...

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.

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.


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