Job Inhibits Rights
Sgt. Can't Sue On Free Speech Denial

By REUVEN BLAU

A former NYPD Sergeant who alleged that he was retaliated against for preparing a report that found major environmental hazards in the 50th Precinct stationhouse cannot sue the department on First Amendment grounds, a Federal appeals court has ruled.

The U.S. Court of Appeals for the Second Circuit rejected Sgt. Angelo Ruotolo's petition, citing the lack of free-speech protections for public employees acting in their official capacities which was established by a U.S. Supreme Court ruling in May 2006.

Limited Speech Rights

In that case, Garcetti v. Ceballos, involving an employee of the Los Angeles District Attorney's Office who questioned the factual accuracy of search warrants and their supporting affidavits, the high court said that the First Amendment of the Constitution does not protect a government worker "from discipline based on speech made pursuant to the employee's official duties."

The NYPD case involved a 1999 report by Mr. Ruotolo, a now-retired Sergeant who was the Training and Safety Officer at the 50th Precinct in The Bronx. In that capacity, the 20-year veteran was instructed by his commander to write a report identifying potential environmental hazards inside the stationhouse.

Sergeant Ruotolo reported that air and water in the building might have been contaminated by spills from gasoline storage tanks, and cited health problems including cancer among those working at the 50th that he said might be attributable to those hazards.

The court ruled that the report did not constitute speech as a citizen and therefore could not form a basis for the suit. "We affirm on the ground that it did not address a matter of public concern," the Appeals Court said.

Mr. Ruotolo alleged in his $1.2-million lawsuit that because of his critical findings, he was subjected to retaliatory acts by supervisors that included the denial of time off, loss of his position as Training and Safety Officer in favor of a patrol assignment, a transfer to a less-desirable precinct and trumped-up disciplinary charges.

Triggered Reprisals?

He claimed that after he filed the Federal lawsuit in 2003, the retaliation intensified, and that he was stripped of his badge and gun for what he claimed was a minor violation of NYPD rules. The former officer contended that he should enjoy First Amendment protections because there were instances in which he was speaking about the hazardous conditions as a private citizen rather than an NYPD employee. One example that he cited involved his conversations with Patrolmen's Benevolent Association lawyers who had come to the 50th Precinct to ask members of that union about the possible environmental hazards.

The three-member appeals court rejected those arguments. "Ruotolo's lawsuit sought to redress his personal grievances," stated Judge Dennis Jacobs, who wrote the unanimous decision. "It did not seek to advance a public purpose. We therefore hold that his lawsuit did not constitute speech on a matter of public concern."

U.S. District Court Judge Sidney H. Stein had also cited the U.S. Supreme Court judgment, which was issued two weeks before Mr. Ruotolo's original trial was set to begin.

'Can't Revive Dead Case'

In his appeal, Mr. Ruotolo argued the Supreme Court decision did not block his retaliation claim.

But the Federal Appeals Court dismissed that contention. "Because the proposed amendment would unduly burden and prejudice defendants in the circumstances of this case, it is properly barred," the decision said.

"We are very pleased with the court's decision," said Tahirih Sadrieh, Senior Counsel for the city's Law Department. "The court recognized that a lawsuit alleging purely personal grievances cannot form the basis of a First Amendment retaliation claim, and that a party cannot revive a dead case by alleging entirely new causes of action after a final judgment has been entered."