By Mitchel Wilson
In Singer v. Ferro, 35 IER Cases 614 (2013), the court affirmed summary judgment for the defendants and dismissed Singer’s first amendment retaliation claim. Singer had alleged retaliation in the form of baseless disciplinary actions and wrongful termination.
Kent Singer, an employee at Ulster County New York Sherriff’s Office and the Ulster County Jail (“UCJ”), created a parody image on his work computer. The image depicted four UCJ officials in an ad of a bottle of Absolut Vodka, captioned “Absolut Corruption.” After sharing a print out with coworkers, Singer discarded the image but another employee retrieved it and brought it to the defendant supervisor’s attention.
The following day, one of Singer’s coworkers who had seen the image, and was believed by management to be involved in its creation, was not permitted to go home when he became ill during the day. Singer learned that superintendents Ferro and Becker, two depicted in the image, were “head hunting,” or attempting to quash the rumors of corruption and undermine those spreading the information. They then called Singer to their office and he recorded the conversation with a device in his breast pocket. Singer later brought a lawsuit and in the course of discovery, the County learned of this recording and brought disciplinary actions against Singer. The County suspended him for 30 days without pay, because recording devices are prohibited on parts of the premises. He was later removed from his position.
The court dismissed Singer’s claim because although his supervisors retaliated, it did not appear that his Absolut Corruption ad was protected because it did not address a “public concern.” The court concluded that in fact it only addressed work related grievances and concerns that are of little or no concern to the public. Singer argued that the parody did address public concerns, but could only identify examples of favoritism in the work place in shift assignments, vacations, and promotions. These instances, the court ruled, were insufficient to demonstrate a “public concern” nexus:
We have recognized that governmental corruption is plainly a potential topic of public concern. But it does not follow that any accusation of an employer practice that is alleged to be “corrupt” qualifies for protection. In other words, the First Amendment does not protect all private ventings of disgruntled public employees. Only that “corruption” which constitutes “a subject of general interest … to the public,” is potentially the object of First Amendment solicitude.
The court concluded that although the parody concerned a potentially important public concern, corruption, the “speech” was not because it was a private joke amongst coworkers. Furthermore, the image simply asserted that the officials were corrupt but, did not discuss any actual or specific corrupt behavior. The Court suggested that if Singer had posted the photos in public places and the image alleged, or alluded to more specific acts of corruption, then his conduct might be protected from retaliation under the first amendment.
