No free speech claim for City of Binghamton police lieutenant

It's been a while since the Court of Appeals published a free speech case involving a public employee. These cases began to dry up in 2006, when the Supreme Court issued the Garcetti ruling, which  made it harder to win these cases by requiring the plaintiffs to show their speech was not pursuant to their official job duties. Four years later, the Second Circuit further tightened the legal standard, in Weintraub v. Board of Education, 593 F3d 196 (2d Cir. 2010). This case does not pose a Garcetti issue but the threshold question of whether the plaintiff spoke on a matter of public concern. 

The case is Quinones v. City of Binghamton, issued on May 12. Plaintiff is a lieutenant with the Binghamton police department. Not all speech is protected under the First Amendment when you work for the government. Complaining about the air conditioning or personal dissatisfaction over a promotion denial is not speech on a matter of public concern, as the general public would have no interest in that issue. Speaking out against corruption or abusive police practices does address a matter of public concern. If it was not your job to speak up about these matters (the Garcetti hurdle), then management cannot retaliate against you.

Plaintiff loses the case on a Rule 12(b)(6) motion. One speech act asserted by plaintiff was a meeting with  the City's personnel director in which plaintiff discussed his concerns that his career was "done." During the meeting, plaintiff also said that one police official speculated that another officer was racist. None of this is speech on a matter of public concern. Personal complaints about your job situation are not protected under the First Amendment, as the employee's motive is to protect his own careers, not debate matters of public concern. The Second Circuit said that in Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775 (2d Cir. 1991), still the go-to case for municipal lawyers on this issue. Nor is it protected speech to say that someone thought someone else was racist. 

Plaintiff also points to an October 2019 affidavit in support of another colleague's discrimination lawsuit. That could be protected speech, but not for plaintiff, because he does not describe any acts of retaliation that took place after he filed the affidavit. So there is no causal connection between the speech and any adverse action.

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