Janitor's Asbestos Griping Is Not Protected Speech
MANHATTAN (CN) - A janitor fired for complaining about possible asbestos contamination at the school where he worked in northern Westchester, N.Y., is not protected from retaliation, the 2nd Circuit ruled.
The federal appeals panel upheld a District Court's ruling against Norman Morey, who was canned by Somers Central School District for griping about fallen insulation.
As head custodian at Somers Central High School, Morey was a government employee, according to the ruling. This made him responsible for cleaning up the insulation as part of his official job duties, and the court concluded that grumbling about the mess was not protected speech.
"The District Court correctly concluded that, on the evidence of record, any reasonable jury would be required to find that Morey's speech was made pursuant to his official duties," Judge Paul G. Gardephe wrote for the court's three-judge panel.
"As head custodian, Morey was responsible for overseeing the general cleaning and upkeep of the school building. Indeed, he first became aware of the fallen insulation in the gymnasium because it was his duty to clean up the mess and report the potential safety hazard to the superintendent of buildings.
"Because it is beyond dispute that Morey's speech was made pursuant to his official duties as head custodian, his claim that the First Amendment protected him from retaliation must fail," Gardephe continued. "Accordingly, the District Court did not err in granting summary judgment for defendants."
Morey's bellyaching did not become protected speech even when one of his supervisors told him to let it go, the court noted.
"That Morey continued to press his concerns about asbestos contamination, even after supervisors told him to leave the matter alone, does not change our analysis," Gardephe wrote.