Public Employee Retaliation Claims Take Another Hit

The United States Supreme Court decision in Garcetti v. Ceballos, significantly restricted a public employee’s ability to claim that a disciplinary action was taken in retaliation for the exercise of free speech rights.  Under Garcetti, the employee must show that he was speaking as a private citizen.  Otherwise, the speech activity is not protected by the First Amendment.

The Eleventh Circuit has now extended that rationale to allegations of discipline as retaliation for freedom of association and petition for redress of grievances.  In D’Angelo v. School Board, a high school principal argued that he had been fired because of his efforts to convert his school to a charter school.  The Eleventh Circuit rejected the argument that these efforts were undertaken as a “private citizen” since one of the statutory means for conversion to a charter school under Florida law is through an application made by the principal.

The court noted that First Amendment claims are “cut from the same cloth” and declined to rule that some freedoms protected under the Amendment are more valuable than others.  Thus, although the principal was speaking on a matter of public concern, he was not speaking as a private citizen.  He therefore had no basis to allege a retaliation claim.

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