Fire Inspector's claim for First Amendment retaliation reinstated

 A fire inspector for the Fire Department of New York was instructed to file a false fire report by certain of his superiors (allegedly -- this case involves a motion to dismiss; nothing has yet been decided by a trier of fact).  The fire inspector refused to do so.  He later brought the actions of his superiors to the attention of the New York City Department of Investigations and the District Attorney's Office.  As a result of his actions, he suffered adverse job actions.  He sued the City and his superiors in Federal Court, alleging a First Amendment retaliation claim, a New York whistleblower claims and a claim for intentional infliction of emotional distress.  

The defendants moved to dismiss the complaint, and the District Court granted the motion.  The fire inspector appealed.

The Second Circuit reversed in part and affirmed in part the District Court's decision.  It held that the District Court had erred in dismissing the First Amendment retaliation claim.  Based on the facts in the complaitn, the Second Circuit held that (1) the fire inspector's speech was of public interest, (2) in making such statements, he was not acting as a fire inspector but as a private citizen and (3) as a result of his actions, he suffered from adverse job inspections.  In particular, the court noted that speech was not job-related becaused it concerned his job duties.  The speech has to be within the scope of the employee's job duties, which was not the case here.  The court further stated that an inference that an adverse job action was taken as a result of the speech could be made based on the proximity of time between the speech and the action.  Based on this, the court reinstated this cause of action.

The Second Circuit, however, held that the New York State whistleblower claim could not go forward because the fire inspector had not exhausted his administrative remedies.  It also affirmed the intentional infliction of emotional distress claim because the actions taken by the defendants were not sufficiently egregious.

The decision in Specht v. City of New York can be found here.