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October 30, 2019Client Alert

Seventh Circuit Again Rejects Whistleblower Carve-out for Unprotected Public Employee Speech

The Seventh Circuit has issued a clear reminder to public sector employees that speech made in their capacity as an employee, and not as private citizens, is unprotected under the First Amendment and does not qualify for any sort of whistleblower protection. Public sector employees who report misconduct must rely on specific legislative enactments, such as whistleblower and anti-retaliations statutes, for job protection.

In Ulrey v. Reichhart, Ulrey complained to the president of the school board after learning the superintendent granted an adult student permission to possess cigarettes on school grounds. The school board president then emailed the superintendent to admonish his judgment. The superintendent, angered by what he viewed as insubordination, allegedly forced Ulrey to resign three months later in retaliation for her complaint to the board. After resigning, Ulrey sued, alleging among other things, that the school district’s superintendent violated her First Amendment rights by retaliating against her for her speech about a student discipline issue.

A unified three-judge panel affirmed the district court’s grant of summary judgment, holding the First Amendment did not protect Ulrey’s speech because the undisputed facts showed she spoke about the discipline issue in her capacity as an employee, i.e., “pursuant to her official duties.” In so holding, the court pointed to the Supreme Court case Garcetti v. Ceballos, which held there is no whistleblower carve-out in the First Amendment for employees who report governmental misconduct. Reports of governmental misconduct contrast with situations in which employees speak as private citizens, such as when giving sworn testimony before a court or grand jury in a case involving employer wrongdoing. The critical question is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, and not whether it merely concerns those duties. “Legislative enactments” such as “whistle-blower protection laws and labor codes,” rather than the First Amendment, protect employees obliged to report official misconduct as part of their job.

The Ulrey decision offers an important reminder about the division between protected First Amendment speech as a private citizen and unprotected speech as an employee. Before terminating an employee for speech, public employers should carefully analyze whether the employee’s statements were made as employees or private citizens. Employers should also assess whether the employee’s speech is protected by other relevant legislative enactments.

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