Second Circuit Dismisses First Amendment Retaliation Claim

Yesterday, in Ross v. Lichtenfeld et al., the Second Circuit (WALKER, Leval, Pooler) held that a government clerk’s claim of First Amendment retaliation should have been dismissed, because she was speaking pursuant to her official duties.  The Court applied the rule of Garcetti v. Ceballos, 547 U.S. 410 (2006), 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 speech that prompted Ross’s retaliation claim owed its existence to her job duties and was made in furtherance of those duties. As a payroll clerk, she was tasked with reporting pay irregularities to her supervisors, and that is what she did here. Accordingly, her complaints to Lichtenfeld and the Board were not protected by the First Amendment.

Because plaintiff’s complaint did not allege a violation of a constitutional right, it was “clear a fortiori that the right was not clearly established at the time of the incident”, and defendant was thus entitled to qualified immunity.

The Court distinguished this case from the Second Circuit’s recent opinion in Jackler v. Byrne (which I wrote about here), where a police officer stated a retaliation claim after he was fired for refusing to make a false statement.  Thus, plaintiff here “alleges that she suffered retaliation for making affirmative statements of misconduct to her supervisors” as opposed to “refusing to make false statements that no misconduct had occurred.”

It was not relevant that plaintiff went “outside the chain of command” to report the irregularities, nor that she did so “on a personal note”.

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