Chilling Appelate decison limits protection for whistleblowing

Couple's retaliation claims fail to gain traction with 2nd Circuit

By David L. Hudson Jr.
First Amendment scholar
10.09.09 

 

A former New York prison guard, who alleged retaliation for reporting abuse of inmates by guards to his superiors, has lost his First Amendment case in the 2nd U.S. Circuit Court of Appeals.

On Oct. 2, an appeals panel also affirmed the dismissal of a claim brought by the officer’s wife, who had alleged she was not hired for a clerk position because of his report.

Paul Wesolowski made a report of inmate abuse in October 2004 while he was a guard at the Ulster County Jail. Wesolowski gave his report to his immediate supervising sergeant. His sergeant told Wesolowski to take the report to another sergeant, who then told him to deliver it to a lieutenant. Wesolowski did so.

In December 2004, Wesolowski was accused of leaving his post on an unspecified matter without obtaining a replacement and for insubordination. He was suspended for 30 days without pay. Wesolowski contended that the charges were a form of retaliation for his protected speech in making the report. Wesolowski admitted that the report was part of his job duties but claimed that he went outside the chain of command in that he eventually delivered the report to someone other than his direct supervisor.

Meanwhile, his wife, Laura Wesolowski, had applied for a position as stock clerk with the county sheriff’s department. Even though she attained a high score on the civil service exam, she was not hired; the person who was hired scored 10 points lower than Laura Wesolowski. She alleged that the failure to hire her was in retaliation for her husband’s report and for her association with her husband. 

The Wesolowskis sued in federal court in March 2005. In August 2007, U.S. District Judge Lawrence E. Kahn dismissed the plaintiffs’ lawsuit because of the U.S. Supreme Court’s decision in Garcetti v. Ceballos (2006). In Garcetti, the Court ruled that public employees do not have First Amendment rights for speech made in accordance with their “official job duties.”

“Plaintiff’s own description of the chain of events makes clear that he was acting at the direction of his superior when he reported the inmate complaint to the other officers,” Kahn wrote. “Because this speech is not protected under the first amendment, Plaintiff’s employer is not prohibited by the first amendment from disciplining him because of the report.”

Kahn reasoned that Laura Wesolowski’s claim based on her husband’s report must fail for the same reason: “Since it has been determined that the speech at issue, her husband’s report of the inmate complaint, was not protected and there was no constitutional violation, no claims derived from that alleged violation can succeed,” Kahn wrote.

Regarding her intimate-association claim, Kahn found that she had “not pointed to any evidence of a nexus” between the failure to hire and her association with her husband.

The Wesolowskis appealed to the 2nd Circuit, and on Oct. 2, a three-judge panel unanimously affirmed the lower court in a summary order in Wesolowski v. Bockelmann, rejecting the Wesolowskis’ claims. 

On appeal, Paul Wesolowski argued again that what he characterized as ultimately going outside his chain of command was protected private speech — rather than unprotected employee speech under Garcetti — because the lieutenant asked him why he had written a report that was not expected of him. However, the 2nd Circuit was not persuaded by this contention, and called the report “job-related” speech.

“Since he was following the orders of his direct superiors in bringing the report to [the lieutenant’s] attention and the lieutenant himself pursued the complaint, his actions were consistent with the duties these superiors expected him to perform, even if various statements they made at the time showed they were displeased by the report itself,” the 2nd Circuit wrote.

The 2nd Circuit also upheld the dismissal of Laura Wesolowski’s claim, finding that she failed to show that she was not hired because of her marriage to her husband. 

Last year the 5th Circuit in Williams v. Riley reinstated several Mississippi jailers’ First Amendment retaliation claims on the basis of similar reporting of inmate abuse.

Related

5th Circuit reinstates Miss. jailers' job-retaliation lawsuit
By David L. Hudson Jr. Decision could affect other cases involving when employee speech is made as part of official job duties, how such determinations are made. 05.14.08

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