Government employee’s speech that sounds like insubordination may be protected

Public employees are entitled to free speech under the Constitution—within limits. For example, the speech must involve matters of public importance. Under the right circumstances, arguing with a supervisor may even be protected.

Recent case: Thomas worked as a police officer, providing security at the San Jose airport. Officers worked 10-hour shifts for four days and then were off for four days. There were two officer teams covering the airport, and they overlapped on Wednesdays when one team would train while the other engage in regular airport work.

Thomas claimed that he discovered a plan by his supervisor to cheat the system by having his team engage in a brief training exercise one Wednesday and then head home, even though they turned in time sheets showing they worked a full shift.

Thomas got into a heated argument with his supervisor. After being ordered to stay with his team at a team-building exercise, he returned to the airport where he filled in for another officer who had gone home sick. His team eventually returned to the airport, and Thomas concluded that he had thwarted the plan. However, he later faced discipline for insubordination.

After retiring, he sued, alleging he had been engaged in First Amendment protected speech when he argued.

The court said his claim could go forward because his “speech” involved potential matters of public concern such as falsification of time reports. (Correa v. City of San Jose, et al., No. 5:12-05436, ND CA, 2015)