The United States Court of Appeals for the Second Circuit recently ruled that a public school teacher who filed a grievance against an assistant principal could not proceed on free speech retaliation claim based on the filing of this grievance. Weintraub v. Bd. of Educ. of City Sch. Dist. of New York, 2d Cir., No. 07-2376-cv,1/27/10. Mr. Weintraub, who was fired by the New York City Board of Education, asserted several claims in his lawsuit, including that he was fired in retaliation for his complaints about the school administration’s failure to discipline a student.

Mr. Weintraub claimed that his speech — complaining to his fellow teachers and filing a grievance with the teachers’ union — was protected under the First Amendment. The trial court disagreed, in part, dismissing the teacher’s First Amendment retaliation claim based on the filing of the grievance. The Second Circuit upheld this dismissal.

Relying on the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Second Circuit held that the teacher’s “filing of the grievance was in furtherance of one of his core duties as a public school teacher, maintaining class discipline, and had no relevant analogue to citizen speech.” The Second Circuit further explained that “the lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general.” Therefore, the Second Circuit upheld the dismissal of the First Amendment retaliation claim.

Judge Guido Calabresi dissented, arguing that an employee’s speech should be considered to be part of his or her official duties only when the employee is required to make such speech as part of assigned job duties. Judge Calabresi also stated that the decision of the Second Circuit did not provide clear guidance to the schools or their lawyers.

While the Second Circuit ruled that Mr. Weintraub could not proceed on his retaliation claim based on filing a grievance, the Court allowed him to proceed with his free speech retaliation claim based on his complaints to his fellow teachers.