Labor & Employment Law

: New York Public Personnel Law

Freedom of speech

By Harvey Randall, Esq. (index)

Freedom of speech
Sheppard v Beerman, USDC, EDNY, Judge Glasser,

If a public employee criticizes his or her superior or supervisor, to what extent are the employee's statements protected by the First Amendment's guarantee of free speech? This was the central issue in the Sheppard case.

Brian Sheppard served as Law Clerk to New York State Supreme Court Judge Leon Beerman. Sheppard refused prepare a particular motion because of his belief that the defendant in that case was being "railroaded" by Judge Beerman. Sheppard also stated that Judge Beerman, among other things, was "corrupt."

Following this confrontation, Judge Beerman decided that he and Sheppard "could no longer work together in view of [Sheppard's] behavior and its harmful impact on [their] working relationship" and he dismissed Sheppard. Sheppard sued, contending, in part, that Judge Beerman's action violated his constitutionally protected right to free speech.

Note: There were a number of earlier proceedings in this case. Sheppard v Beerman, 822 F. Supp. 931 was affirmed in part, denied in part, by the Circuit Court, Sheppard v Beerman, 18 F.3d 147, and remanded to Judge Glasser for further action (Sheppard I).

Judge Glasser's ruling on remand [Sheppard v Beerman, 911 F. Supp. 606], was reversed by the Second Circuit [Sheppard v Beerman 94 F.3d 823] (Sheppard II). The Sheppard II remand is the focus of this ruling.

According to Sheppard, Judge Beerman asked him to draft a decision on a motion that Sheppard believed would be:

1. Prejudicial to a defendant in a criminal action and

2. Was not based on the merits.

Sheppard conceded he told Judge Beerman:

Well why don't you have the district attorney's office write the decision since you don't even want me to look at the moving papers.

This statement, Sheppard contended, was meant not as a sign of disrespect for Judge Beerman, but as an expression of "disrespect for what he was doing." When Judge Beerman told Sheppard "Well, if that's how you feel, then you should look for another job," Sheppard testified that he then told Judge Beerman:

Why should I look for another job? You're the corrupt son of a bitch doing these things, and I am innocent, and I'm just saying I don't want to do it. So why should I have to look for another job?

According to the ruling, an individual must establish a prima facie case of retaliation for speech protected under the First Amendment by presenting evidence establishing three elements:

1. He or she was engaged in constitutionally protected speech;

2. He or she was subjected to adverse action or was deprived of some benefit; and

3. The protected speech was a "substantial" or a "motivating factor" in the adverse action.

In the words of the U.S. Supreme Court, "a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of public employ­ment[,]" the government may exercise broader power to regulate the speech of its em­ployees than over private citizens [Connick v Myers, 461 US 138].

Judge Glasser said that in Sheppard II, the Second Circuit noted that in weighing the potential disruptiveness of the speech against the employee's interest in engaging in that speech, "the court must find not only that the employee's interest in engaging in the speech was outweighed by its potential disruptive impact, but also that the employer took the adverse action because of that potential for disruption, and not because the employee threatened to disclose actual or potential wrongdoing."

Judge Glasser ruled that termination does not violate the employee's First Amendment rights where:

1. The employer's prediction of disruption is reasonable;

2. The potential disruptiveness is enough to outweigh the value of the speech; and

3. The employer took action against the employee based on this disruption and not in retaliation for the speech.

Judge Glasser noted that Sheppard was terminated after he threatened to "expose" Judge Beerman. This, Judge Glasser concluded, defeated Sheppard's contention that Judge Beerman's action was motivated by a desire to suppress his speech concerning matters of public concern. Rather, said Judge Glasser, the act of termination supported the conclu­sion that Sheppard's free speech was not the issue. Sheppard he had threatened to "expose" Judge Beerman's alleged misconduct if he was dismissed. Therefore dismissing Sheppard, said Judge Glasser, "was akin to an invitation [to Sheppard] to speak."

Judge Glasser's conclusion: Sheppard's evidence did not satisfy the Pickering test [Pick­ering v Board of Education, 391 US 563]. The Pickering test balances the interest of a public employee speaking out on matters of public concern, in contrast to matters of essentially a personal nature, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Here, said the court, Sheppard's statements were directed towards Judge Beerman "in a manner that can only be characterized as personally confrontational, and which did more than threaten the institutional efficiency of Judge Beerman's Chambers; it made the continued maintenance of discipline and harmony in his Chambers impossible to contem­plate."

To paraphrase Judge Glasser's conclusion in this matter, it is difficult to imagine a rule that would require a public employer to retain a public officer or employee "whose abra­sive, insubordinate and vulgarly disrespectful conduct" towards it adversely affect the governmental services it provides.

Full post as published by New York Public Personnel Law on January 31, 2008 (boomark / email).