Monthly Archives: October 2016

In Our Opinion..., Labor In The News

First Amendment Does Not Protect Employee Who Is “Just Doing His Job”

Sandulli Grace Staff October 28, 2016

The Massachusetts Appeals Court today reaffirmed that an employee does not have First Amendment protection for statements made as part of his job. New Worcester County Sheriff Louis Evangelidis fired Jude Cristo, who had been the Director of Payroll and Human Resources. Cristo challenged his termination, claiming that he was fired because he complained that employees’ were not doing their jobs because they were engaging in political campaigning during work hours. Cristo claimed that the First Amendment protected his complaints. The Court disagreed.

In granting Evangelidis summary judgment, the Court of Appeals found that Cristo’s speech did not constitute protected expression for First Amendment purposes. The Court of Appeals noted settled Supreme Court precedent that is used to determine when a public employee’s speech is protected. In reviewing speech, the court asks, in part, whether the employee is speaking in their capacity as a citizen regarding a matter of public concern. The Court of Appeals agreed that Cristo was clearly commenting on a matter of public concern because the complaints he made to his supervisor were related to the potential misconduct of sheriff’s office employees. This speech was strongly tied to a matter of public concern because it related to public employee’s campaigning during work hours instead of performing their actual duties and committing other potentially unlawful acts.

However, the Court nonetheless found the speech to be unprotected because Cristo’s comments were made pursuant to his official duties and he was not necessarily commenting as a private citizen. The Court found that Cristo’s complaints were all made in furtherance of fulfilling his duties as the director of payroll and human resources, as his duties included making sure that employees correctly reported their time and included making sure that other employees complied with their human resources responsibilities. Consequently, as Cristo was merely making statements pursuant to his official duties and was not speaking in his capacity as a private citizen, his speech was not entitled to First Amendment protection.

This case is a reminder that while a public employee “does not leave her constitutional rights at the door” when she goes to work, those rights are curtailed when it comes to the operation of her governmental employer.

You can read the decision here.

Labor In The News, Sandulli Grace In The News

BOSTON POLICE PATROLMEN’S ASSOCIATION WINS BIG IN APPEALS COURT – SIX TERMINATED POLICE OFFICERS REINSTATED

John Becker
John Becker October 7, 2016

COURT AFFIRMS CIVIL SERVICE COMMISSION FINDING THAT PSYCHEMEDICS’ HAIR DRUG TESTING USES BAD SCIENCE

The Massachusetts Appeals Court issued a decision on October 7, 2016 regarding the civil service appeals of 10 Boston police officers who were terminated solely because their hair tested positive for illegal drugs. All 10 officers in the appeal denied that they had used illegal drugs. In Thompson v. Civil Service Commission, No. 15-P-330 (Mass. App. Ct.), the Appeals Court affirmed the decision of the Massachusetts Civil Service Commission ordering six of the officers to be reinstated. After 18 days of hearing, the Commission ruled on February 28, 2013 that the hair testing protocol used by Psychemedics, Inc. was based on bad science and the Boston Police Department could not rely on a positive drug test alone to terminate a police officer. All 10 officers are members of the Boston Police Patrolmen’s Association (BPPA), which provided legal and financial support for these appeals. The BPPA represents the 1500 patrol officers of the Boston Police Department in collective bargaining over matters of wages, hours and working conditions.

Based on its initial finding that the hair test result alone was insufficient to terminate an officer for violating the Department’s rule against using illegal drugs, the Commission went on to consider other factors, such as the credibility of the officers’ denials that they used drugs, to determine whether the Department had just cause to terminate. Using this additional information, the Commission found that the Department had just cause to terminate four of the 10 officers. The Commission ordered the remaining six officers reinstated, but without full back pay. Representing the officers at the Commission at the request of the BPPA were attorneys Alan Shapiro and Jennifer Rubin, both partners at Sandulli Grace, P.C.

The City of Boston and Boston Police Department appealed the Commission’s decision on the six reinstatements to the Superior Court. The four terminated officers also appealed, and the six reinstated officers appealed the portion of the decision denying them full back pay. The Superior Court issued a decision on October 6, 2014 affirming the Commission’s decision in large part, but agreeing with the six reinstated officers that they were entitled to full back pay.

In the next round, the City and Department appealed to the Appeals Court on the issue of the six reinstatements, and the four terminated officers also appealed. The Appeals Court’s October 7, 2016 decision affirmed the Commission’s decision, but adopted the Superior Court’s ruling that the six reinstated officers were entitled to full back pay. Sandulli Grace attorneys Alan Shapiro and John M. Becker, at the request of the BPPA, represented the 10 officers in the appellate proceedings.

Either or both parties may file a petition for further appellate review to the Supreme Judicial Court within 14 days. Unlike the Appeals Court, which must review all the appeals filed with it, the SJC may select which cases to review. In practice, the SJC rejects approximately 9 out of every 10 applications for further appellate review it receives in civil cases.

The implications of this case are significant for any Union or Employer where hair testing, particularly hair testing by Psychemedics, is conducted. The Civil Service Commission was unequivocal in its conclusion that there are too many unanswered questions and questionable scientific assumptions in Psychemedics’ current hair testing protocol to allow an employer to fire an employee covered by just cause (either in a collective bargaining agreement or statute) on the basis of a hair test result alone.