March 01, 2017

In Brief

Theodore L. Garrett

Whistleblower and First Amendment protection

Berlyavsky v. N.Y.C. Department of Environmental Protection, No. 16-cv-1096, 2016 WL 7402667 (2nd. Cir. Dec. 20, 2016) (unpublished).
The Second Circuit upheld a trial court’s dismissal of a suit by a former agency employee alleging employment discrimination and retaliation. The former New York City Department of Environmental Protection employee was fired after he reported concerns about the collection and handling of wastewater samples. The court of appeals held that the employee did not properly plead a claim for First Amendment retaliation. The employee’s job was to collect water samples and thus he was speaking in his role as a public employee, and not as a public citizen. When public employees make statements pursuant to their official duties, the court held, the Constitution does not protect their statements from employer discipline.

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