First Amendment Retaliation Claim: "Free Speech" Doesn’t Mean "Free Speech" for Public Sector Employees

Originally appeared in Labor Law Newsletter - January 2002

A public sector employee cannot simply claim "free speech" when allegedly terminated in retaliation for whistle-blowing. In order to prevail on a First Amendment retaliation claim, a plaintiff’s speech must be constitutionally protected and have been a motivating factor in the employer’s actions. Speech by a public employee is "protected" if: (1) it addresses an issue of public concern and (2) the employee’s interest in speaking outweighs the interest of the state in efficiently providing services. To determine whether the speech implicates a public concern, courts examine content, form, context, and motivation - with content being the most important.

The United States Court of Appeals for the Seventh Circuit recently applied this analysis in Wallscetti v. Fox, Lagges et al., 258 F.3d 662 (7th Cir. 2001). Plaintiff Stephanie Wallscetti worked for the Cook County Department of Environmental Control. After noticing that two of her supervisors were sometimes absent from their offices in the afternoons, she hired a private investigator to tail one of them. She concluded that the two supervisors often stayed on the clock while engaging in personal business away from the office and informed the Cook County Comptroller of her suspicions. She thereafter complained to the County’s EEO officer that the same two supervisors were harassing her for her whistle-blowing.

Shortly after Wallscetti reported her complaints to the Comptroller, the Director of her Department met with Wallscetti about her failing to follow the chain of command. At the meeting Wallscetti refused to reveal to whom she made her reports and would not provide documentation to substantiate her allegations.

Wallscetti later participated in a predisciplinary hearing to address charges that she: (1) had harassed one of the two supervisors at issue; (2) was insubordinate; (3) failed to properly perform her duties; (4) lied to supervisors; and (5) submitted false documents in her work. After the hearing, Wallscetti was terminated.

Wallscetti filed suit against the two supervisors and the Department Director in their individual and official capacities, alleging retaliation in the form of harassment, false reprimands and her eventual termination because she exercised her First Amendment rights. The U.S. District Court found that the only protected speech was the information about her supervisors’ failure to work. Wallscetti unsuccessfully argued that all of her speech was protected, including her complaints of harassment.

On appeal, the Seventh Circuit found that Wallscetti’s allegations of harassment were more in the nature of a private personnel dispute than a matter of public interest. The content of her complaints involved personal matters, rather than issues involving her department as a whole. The Court noted that, "[g]enerally, speech relating to only the effect an employer’s action had on the speaker is not shielded by the First Amendment, since it rarely involves a matter of public concern." Further, the fact that Wallscetti contacted internal superiors rather than bringing the alleged harassment into view of those outside the County supported the finding that her complaints were not a matter of public concern and therefore not protected.

This case reassures public employers that employee use of the First Amendment as a defense to pending discipline is not automatic - when the speech at issue is not one of public concern. But, public employers must be aware of employee speech that does involve a public concern. For example, in Meyers v. Hasara, 226 F.3d 821 (7th Cir. 2000), a city health inspector brought an action against the city’s mayor and health director, alleging that the issuance of a 5-day suspension for her comments about an unlawfully operating food market violated her First Amendment rights. The Seventh Circuit found a legitimate claim, observing that the city turned a "blind eye" to a known permit violation that posed a potential health risk, and that the employee’s comments involved a matter of public concern. Moreover, the mayor and director were not entitled to qualified immunity in this case, because they could not "claim not to have known that disciplining Myers under these circumstances would not implicate her right to free speech."