Teacher fired for allegedly speaking to the press loses appeal

PENNSYLVANIA–In early August, a unanimous federal appeals panel in Philadelphia (3d Cir.) held that a Levittown public school teacher’s claim that he was punished because of the principal’s mistaken belief that he had called the press about a matter of public interest at the school did not violate the First Amendment because, if the teacher did not make the remarks, no speech was uttered.

Relying on a 1990 case decided by the federal appeals court in Chicago (7th Cir.), in which a public employee alleged that her employer retaliated against her based on a mistaken belief that she had instigated a series of articles in a local newspaper, the appeals court found no authority for the proposition that free speech rights are violated “when the speech at issue admittedly never occurred,” even if a defendant’s “bad motive” is alleged.

In late December 1993, the principal, Joseph Boles, accused teacher Jack Fogarty of contacting a reporter with the Levittown-based Bucks County Courier Times, who was en route to the school and who had previously written unfavorable stories about dust and fumes from a construction project at the school that caused minor illnesses among the students and teachers. When he arrived at the school, the reporter said that he had received a written message from someone at the newspaper office to call Fogarty, but was unable to identify the caller.

In a deposition, Fogarty denied contacting the reporter and said that he had never felt pressure from Boles or anyone else to avoid talking with the media.

After the confrontation, Boles eliminated Fogarty’s various paid additional positions, including Chairman of the English Department, Business Manager for the school play, and Faculty Advisor for the yearbook. Boles asserted other reasons for his actions that were unrelated to the December incident involving the reporter.

The courted cited Supreme Court precedent holding that the First Amendment protects public employees from retaliation by their employer if they spoke on a matter of public concern, their interest in that field outweighs the government’s concern with the effective and efficient fulfillment of its responsibilities to the public, the speech caused the retaliation, and the adverse employment decision would not have occurred but for the speech. In this case, the court found, no speech on a matter of public concern was uttered. (Fogarty v. Boles; Appellant’s Counsel: Michael Brodie, Philadelphia)