School Clerk’s Complaints About Payroll Fraud Not Protected Under the First Amendment

Last week in Williams v. Board of Education-City of Buffalo, the Second Circuit affirmed the summary judgment dismissal of plaintiff’s First Amendment retaliation claims.  The district court’s decision is here, and the Second Circuit’s decision is here.

Plaintiff, a clerk at the Riverside Institute of Technology, claimed that the principal instructed her to “alter payroll documentation to reflect that certain substitute teachers were performing special education duties.”  She objected to this, based on her belief that the principal was “misappropriating federal special education funds” and, in sum, “taking away money from the special ed kids”.

She claimed that her objections resulted in retaliation, and asserted – via 42 U.S.C. § 1983 – that this amounted to a violation of her First Amendment rights.

Relying on the Supreme Court’s decision in Garcetti v. Ceballos and the Second Circuit’s decision in Weintraub v. Bd. of Educ., the court held that her speech was not protected under the First Amendment.

Specifically, according to the trial court:

[P]laintiff’s complaints to her union, her supervisor, and to representatives of the Board of Education which resulted in an investigation of the payroll practices of defendant Mogavero, were made pursuant to her official duties as a school clerk [such that her] speech was “part-and-parcel of [her] concerns about [her] ability to properly execute [her] duties.” … Additionally … plaintiff did not speak publicly as a citizen, for example to a news outlet or by way of a letter to the editor, regarding her concerns of impropriety. Her speech had no relevant citizen analogue and “owe[d] its existence to [her] professional responsibilities.”

The court reached its decision despite plaintiff’s “internal motivations” that she was redressing wrongdoing and her argument that her job description did not specifically include reviewing payroll records for fraud or reporting fraudulent conduct.  As to the latter point, the trial court specifically declined to “construe plaintiff’s job description so narrowly.”

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