First Amendment Retaliation Claim: 'Free Speech' Doesn't Mean 'Free Speech' for Public Sector Employees

Originally appeared in Labor Law Newsletter - January 2002

A public sector employee cannot simply claim "free speech" when allegedly terminated in retaliation for whistle-blowing. In order to prevail on a First Amendment retaliation claim, a plaintiff's speech must be constitutionally protected and have been a motivating factor in the employer's actions. Speech by a public employee is "protected" if: (1) it addresses an issue of public concern and (2) the employee's interest in speaking outweighs the interest of the state in efficiently providing services. To determine whether the speech implicates a public concern, courts examine content, form, context, and motivation - with content being the most important.

The United States Court of Appeals for the Seventh Circuit recently applied this analysis in Wallscetti v. Fox, Lagges et al., 258 F.3d 662 (7th Cir. 2001). Plaintiff Stephanie Wallscetti worked for the Cook County Department of Environmental Control. After noticing that two of her supervisors were sometimes absent from their offices in the afternoons, she hired a private investigator to tail one of them. She concluded that the two supervisors often stayed on the clock while engaging in personal business away from the office and informed the Cook County Comptroller of her suspicions. She thereafter complained to the County's EEO officer that the same two supervisors were harassing her for her whistle-blowing.

Shortly after Wallscetti reported her complaints to the Comptroller, the Director of her Department met with Wallscetti about her failing to follow the chain of command. At the meeting Wallscetti refused to reveal to whom she made her reports and would not provide documentation to substantiate her allegations.

Wallscetti later participated in a predisciplinary hearing to address charges that she: (1) had harassed one of the two supervisors at issue; (2) was insubordinate; (3) failed to properly perform her duties; (4) lied to supervisors; and (5) submitted false documents in her work. After the hearing, Wallscetti was terminated.

Wallscetti filed suit against the two supervisors and the Department Director in their individual and official capacities, alleging retaliation in the form of harassment, false reprimands and her eventual termination because she exercised her First Amendment rights. The U.S. District Court found that the only protected speech was the information about her supervisors' failure to work. Wallscetti...