I have repeatedly reported on the legal challenges facing whistleblowers in New York. Too often, public employees who experience retaliation for exercising their “free-speech” rights are afforded no remedy.

New York State’s whistleblower statute (Civil Service Law §75-b) is weak and essentially without any utility. Consequently, whistleblowers in the public sector typically rely on their First Amendment rights when their mere utterances result in retaliation. Unfortunately, these very same Constitutional workplace rights have been eroded in recent years.

This month, a Federal appeals court decision, Anemone v. Metropolitan Transportation Authority, underscores that the odds are stacked high against whistleblowers who claim Constitutional protection. The decision offers a useful overview of the elements which must be satisfied to successfully claim whistleblower status.

Corruption Uncovered

In Anemone, the plaintiff was the Director of Security and a Deputy Executive Director of the Metropolitan Transportation Authority (“MTA”). Plaintiff investigated various billing practices and uncovered evidence of fraud committed by contractors. The investigations resulted in criminal prosecutions and guilty pleas by MTA employees. In addition, contractors were compelled to make substantial restitution to the MTA.

Plaintiff (together with a coworker) reported his findings of corruption to the Queens District Attorney. Soon thereafter, plaintiff disclosed to the New York Times that MTA officials were frustrating the corruption investigations. Plaintiff also testified before a New York State Assembly Committee about his findings. Within three days of when the New York Times reported the story, plaintiff was suspended from his MTA job; less than one month later, plaintiff’s employment was terminated.

Plaintiff filed a lawsuit in Federal district court alleging, in part, that the MTA retaliated against him in violation of his First Amendment rights. The district court dismissed the lawsuit citing the MTA’s “adequate justification” for terminating plaintiff’s employment including his “long and intensifying history of insubordination.” Plaintiff then filed an appeal with the Second Circuit Court of Appeals.

Second Circuit Affirms

On appeal, the Second Circuit affirmed the dismissal of plaintiff’s lawsuit. In so doing, the appeals court offered a useful description of the challenges facing public employees claiming whistleblower status.

First, a whistleblower must establish that his or her “speech” is of public concern. Complaints regarding personal grievances will not confer whistleblower protection on public employees. Second, whistleblowers will not gain protection if they expose government wrongdoing in the exercise of their official duties.

Assuming that the public employee uncovers and reports a matter of public concern as a “citizen” and not as a part of his or her official duties, the legal analysis then addresses the adverse actions taken against the whistleblower. Here, the Second Circuit in Anemone reminds us of an employer’s so-called Pickering defense. Pursuant to said defense, an employer may take an adverse action based on the “potential for disruption” caused by the whistleblower’s speech (provided the harm of disruption outweighs the value of the plaintiff’s expression).

Another defense available to public  employers is referred to as the Mt. Healthy defense. This defense allows an employer to escape liability even if evidence exists that the retaliation was motivated, in part, by protected speech. A public employer uses the Mt. Healthy defense by demonstrating that it would have taken the same adverse action in the absence of the improper motive. In other words, the employer must show that independent, legitimate grounds existed, separate and apart from the protected speech, for the disciplinary action taken against the whistleblower.

The Second Circuit narrowly ruled against plaintiff’s First Amendment claim based on the employer’s successful Mt. Healthy defense. The appeals court found sufficient evidence of the MTA’s general dissatisfaction with plaintiff’s work performance as well as evidence of his insubordination and deception. Citing Mt. Healthy, the court concluded that no reasonable jury could have found that plaintiff’s suspension and subsequent termination were based on any improper motivation.

In its decision, the Second Circuit also addressed the “official duties” doctrine in a way that may curb future whistleblower claims. The court found that plaintiff’s official duties, as Director of Security, involved “cooperating” with law-enforcement officials. Therefore, plaintiff’s communications with the District Attorney’s office were made in the exercise of those official duties and were thus deemed unprotected speech.

James A. Brown is a partner in the law firm Brown amp; Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

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