By Saranac Hale Spencer
Of the Legal Staff
Within 10 days of hearing arguments, a three-judge panel for the U.S. Court of Appeals for the Third Circuit has thrown out claims made by a former executive assistant at the Philadelphia Housing Authority that he had been retaliated against for constitutionally protected speech.
The panel affirmed the district court’s opinion, dismissing Vincent Morris’ amended complaint. Judge Michael Chagares wrote the opinion, issued as “not precedential,” on behalf of a panel that included Judges Dolores Sloviter and Kent Jordan.
Morris’ allegations stemmed from the allegedly illegal lobbying activities he said he had been compelled to perform by his supervisor, Carl Greene. Most of his allegations fell outside of the two-year statute of limitations, but he alleged that he was “constructively” terminated in 2010 in retaliation for his objection to the tasks.
Morris argued that his speech in that context should be constitutionally protected, but the court ruled it is not because he reported his complaints to an internal chain of command at the PHA.
“In light of Garcetti and our subsequent cases, we conclude that Morris’ speech was not entitled to First Amendment protection,” Chagares said, referring to the U.S. Supreme Court's 2006 opinion in Garcetti v. Ceballos. “We have consistently held that complaints up the chain of command about issues related to an employee’s workplace duties – for example, possible safety issues or misconduct by other employees – are within an employee’s official duties.”
In Garcetti, "the Supreme Court narrowed the scope of protected activity by holding that 'when public employees speak pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,'" U.S. District Judge Michael Baylson of the Eastern District of Pennsylvania explained in his opinion in Morris v. PHA dismissing the case.
In his eight-page opinion, Chagares quoted Garcetti, concluding, “Because Morris complained to his superiors within PHA about matters arising in the scope of his employment duties, his speech did not have a ‘relevant analogue to speech by citizens who are not government employees.’”
Morris’ lawyer, Michael Pileggi, thought after oral arguments that the Third Circuit might have been planning to carve out an exception to protect public employees’ speech when it regards illegal activity. He was disappointed that it didn’t.
Although he has to consult his client, Pileggi said, “I still think it’s an appealable issue.”
Michael Bowman, of Bowman Kavulich in Philadelphia, represented the PHA and could not be reached for comment.