McGuire v. Warren, No. 06-0135, 2006 WL 3456538 (2d Cir. Nov. 30, 2006)
In an unpublished opinion, the U.S. Court of Appeals for the Second Circuit ruled in November that a special education contractor’s speech, which she alleged was the basis for retaliation, could not be considered protected speech made as a citizen, because she herself asserted that the speech was made pursuant to her responsibilities as a contractor. The court based its decision on the U.S. Supreme Court’s decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), which held that a public employee’s speech could not be considered to be speech as a private citizen on a matter of public concern for purposes of a First Amendment retaliation claim if that speech was made pursuant to the employee’s official duties. However, the Second Circuit concluded that other instances of speech by the contractor might serve as basis for a retaliation claim. When Donna McGuire’s special education service contract with the Orange County, New York, was terminated, she sued, alleging that her termination was in retaliation for her engaging in protected speech about. She also claimed that the county had violated the Fourteenth Amendment because an e-mail announcing her termination was stigmatizing, depriving her without due process of her liberty interest in avoiding stigma that may affect her future employment. The district court dismissed both claims.
The Second Circuit affirmed in part, vacated in part, and remanded the case to the lower court. The appeals court found that the letter cited by Ms. McGuire as the basis for the retaliation could not satisfy the requirement that the speech be made as private citizen on a matter of public concern, because the letter focused on an internal administrative matter that was not of interest to the community at large. However, the court found that the letter might not be the only speech that could serve as the basis of a retaliation claim. Ms. McGuire’s complaint also discussed the parties’ differing views on the proper method of providing special education services, and the statements she made more broadly might well be a matter of public concern and serve as the basis for a retaliation claim. Nevertheless, she herself alleged that she was acting pursuant to her responsibilities as a contractor at the time of the speech, which would run afoul of Garcetti. As a result, the Second Circuit vacated the lower court’s judgment and remanded the case for the sole purpose of allowing Ms, McGuire 45 days to amend her complaint. Turning to the due process claim, the court found that Ms. McGuire had failed to allege that the statements in the e-mail were actually false, which the court has held is necessary for a liberty interest claim.
McGuire v. Warren, No. 06-0135, 2006 WL 3456538 (2d Cir. Nov. 30, 2006)
[Editor’s Note: An unpublished opinion generally may not be cited as legal precedent. Background on Garcetti and how it has been applied by lower courts in other school cases is available starting at the link below.]
[NSBA School Law pages on Casey v. West Las Vegas Indep. Sch. Dist.]