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The plaintiffs in the case are the People of the State of New York. The defendant in the case is Nicolas Pierre Louis.

Plaintiff Argument

The plaintiffs in the case, the People of the State of New York offer a deposition in the case for aggravated harassment by the defendant. A New York Injury Lawyer said the plaintiff states that in between the dates of February 22, 2010 through April of 2010, while employed by the Nassau County District Attorneyas Office, as the Assistant Defensive Attorney, I received a number of voice mails from the defendant, Nicolas Pierre a Louis. The voice mails consisted of screaming, yelling, and the use of profanity. Each of the voice mails are both alarming and annoying, filled with profanity and threats as well as offensive comments. These recordings caused me to fear for both my safety and the safety of one of my co-workers as well.

Defendant argument

The defendant makes the argument that while his statements on the recordings may be both offensive and vulgar, they are protected constitutionally through the right to free speech, under the First Amendment of the Constitution of the United States of America. He states that because of his rights under the first amendment, there is no basis for the criminal charge that the plaintiff is seeking.

A Bronx Personal Injury Lawyer said the defendant argues that though the defendant’s statements may be vulgar and offensive, they are constitutionally protected speech and therefore should not form the basis of a criminal charge.

Case Discussion

Over the years, the courts have sought to define areas where free speech is justifiable. There have been many cases throughout the years where the First Amendment right of the freedom of speech has been argued. Cases that have been in favor of the plaintiffs were the direct result of the defendant speaking in a manner that is intended to induce lawless actions and is likely to incite or produce these types of actions. Any type of speech in this manner is not protected by the first amendment. Additionally, if the words used by an individual can be deemed as threatening or harassing in nature and the make the other individual feel truly threatened, the protection of free speech is void. However, the First Amendment does protect individuals from being discriminated against by the government by not allowing the government to proscribe speech or expressive conduct simply because they disapprove of the ideas that are being expressed.

Dismissal Argument

After reviewing the facts of the case, including the supporting deposition as given by the plaintiff, which contains the statements that were made by the defendant, the court has decided that while the statements made by the defendant were in fact vituperative and vulgar, they do not rise to the level of afighting wordsa as described by the plaintiffs. A Brooklyn Personal Injury Lawyer said the statements also do not rise to the level of being a true threat. While the defendant does use a number of derisive terms to describe the plaintiff the threats seem to be confined to having the ADA fired.

If you have a legal issue, whether it involves a car accident, medical malpractice mistake or a construction accident, call Stephen Bilkis and Associates for guidance. We will provide you with a free consultation and ensure that your rights are protected.

The Occupational Safety and Health Administration (“OSHA”) announced on March 1, 2012 that its Office of the Whistleblower Protection Program (“WPP”) will now report directly to the Department of Labor’s Office of the Assistant Secretary, rather than to its Directorate of Enforcement Programs. The restructuring signals an elevated priority placed on enforcement of the whistleblower protection laws falling under OSHA’s jurisdiction, and suggests that the Agency intends to devote increased efforts and resources to this area in the future.

WPP Had Not Been Sufficiently Meeting Its Mission to Protect and Incentivize Whistleblowers

OSHA’s WPP is responsible for enforcing the various whistleblower protection provisions of twenty-one separate federal statutes. These include such laws as the Occupational Safety and Health Act, Sarbanes-Oxley, and the Affordable Care Act, and they offer protections to employees who bring to light violations of a wide variety of laws, including airline safety, environmental remediation, food safety, public transportation and railroad, maritime and securities laws. While some differences exist between the details of the particular statutes, in general they prohibit an employer from terminating or otherwise discriminating or retaliating against an employee who reports or provides information regarding a suspected violation of the law, either to internal audit personnel or to the government. The statutes vest OSHA with jurisdiction to investigate complaints of retaliation against whistleblowers, and to award appropriate relief which frequently includes reinstatement, attorneys’ fees and costs, compensatory damages, and in some cases even punitive damages.

A pair of Government Accountability Office audits in 2009 and 2010 had identified substantial problems with the WPP. In particular, an August 2010 GAO Report No. 10-722, titled “Whistleblower Protection: Sustained Management Attention Needed to Address Long-Standing Program Weaknesses,” found that “OSHA has done little to ensure that investigators have the necessary training and equipment to do their jobs, and that it lacks sufficient internal controls to ensure that the whistleblower program operates as intended.”

OSHA Revamp WPP to Increase Protection and Incentives for Whistleblowing Activity

Spurred in part by these findings, OSHA conducted an internal review of its program, part of an overall plan to fortify the WPP and its operations. In September 2011 OSHA issued an updated Whistleblower Investigations Manual, and as of the Fiscal Year 2012 budget OSHA has established a separate budgetary line item for its WPP. Announcement of the restructuring and new reporting lines marks yet another key milestone in OSHA’s revamping of the WPP. Assistant Secretary of Labor Dr. David Michaels, who heads OSHA and will now directly oversee the WPP, said that “OSHA’s internal improvement initiatives, including this realignment, demonstrate the agency’s steadfast commitment to strengthening a program that is critically important to the protection of workers’ rights.”      

The restructuring strongly indicates OSHA’s intention to bring more resources to bear in its enforcement of the whistleblower protection statutes it oversees. Employers can expect to see a growing emphasis on the WPP as a tool in the government’s law enforcement efforts, and a continued vibrancy in this area of employment litigation

In an encouraging sign to whistleblowers, the Department of Labor has elevated the status of its Office of the Whistleblower Protection Program (OWPP) so it now reports directly to the Head of OSHA, Assistant Secretary Dr. David Michaels. This puts whistleblower protection on an equal footing with OSHA’s health and safety enforcement, and increases the OWPP’s access to the resources it needs to accomplish its mission. It means the new Director of the OWPP, Sandra Dillion, now has the ear of Dr. Michaels and the Solicitor of Labor, giving her the ability to quickly resolve issues that previously would languish in lower level limbo. And she will preside over one of the few federal programs set to grow, with President Obama calling for a 39% increase in the OWPP’s budget and the hiring of 37 new whistleblower investigators.

By giving whistleblower protection a priority, the DOL is moving forward with its commitment to strengthen the voice of employees in the workplace.  And it means more support for railroad workers who stand up and blow the whistle on rail management’s culture of retaliation.  For the DOL Press Release announcing this restructuring, click here.

This morning, the Supreme Court declined to hear two cases that raise a conflict among the circuits about whether the First Amendment protects government employees who refuse to make false statements.  The Court denied petitions for certiorari by David Bowie, a former official of the District of Columbia (DC) Office of Inspector General (OIG), and by Matthew Byrne, Police Chief of Middletown, New York.  Bowie had lost his First Amendment case in the District of Columbia Circuit.  Meanwhile, the Second Circuit held that Byrne had to answer Jason Jackler’s claim that he suffered retaliation for refusing to make false statements in an excessive force investigation.  The Supreme Court’s decision to avoid the issue means that public employees in New York, Vermont and Connecticut will have protection when they refuse to make false statements, but those in DC will not.  The rights of public employees in other states remains undecided.

The outcome for David Bowie is particularly troubling.  According to the Second Circuit, Bowie was the Assistant Inspector General of the Investigations Division at the OIG from November 1997 until his termination in August 2002. DC officials say they fired Bowie for performance problems. But Bowie says his termination was to punish him for supporting Emanuel Johnson, a subordinate whom the OIG fired over Bowie’s dissent. Bowie and Johnson had worked together in a class action race discrimination lawsuit against the Federal Bureau of Investigation (FBI). Inspector General Charles C. Maddox, told Bowie that FBI Assistant Director Jimmy C. Carter had threatened not to “provide any assistance or cooperation with the [OIG] in investigative matters” if Johnson was involved. Maddox ordered Bowie to fire Johnson, and Bowie complied in 2000. After Johnson filed a race discrimination complaint, DC’s attorney and the OIG’s attorney ordered Bowie to sign an affidavit about Johnson’s performance problems.  Bowie refused, citing “misstatements of fact” and “language that would convey impressions that [he] would not agree with.” The OIG attorney invited Bowie to prepare his own affidavit, which Bowie did.  That affidavit cited one performance issue, called Johnson an otherwise “model investigator,” and recounted how Bowie wanted to keep Johnson employed. The OIG decided not to use Bowie’s affidavit in defense of Johnson’s claim. Thereafter, Bowie’s performance appraisal’s dropped, he was removed from a high-profile investigation, and a subordinate was promoted to a superior position. Management criticized Bowie for “not stepping up to the plate” and for overprotectiveness toward his subordinates. Eventually, Maddox fired Bowie in 2002.

Bowie sued Maddox for retaliation under the Civil Rights Act, and for conspiracy and violation of the First Amendment.  The judge allowed the Civil Rights Act claim to go to trial and the jury sided with management.  Bowie appealed the dismissal of his conspiracy and First Amendment claim. In the appeal, Bowie did not have a lawyer.  The DC Circuit appointed a lawyer for him. Last year, the DC Circuit dismissed Bowie’s appeal by citing Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006): “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The DC Circuit noted that Bowie never tried to submit his affidavit directly to the EEOC or to Johnson.  Bowie communicated his concerns about the draft affidavit only to the attorneys for his employer.  All these communications were part of his duties, and conducted through official channels. Johnson also lost his retaliation claim after a bench trial. See Johnson v. Maddox, 270 F.Supp.2d 38, 43 (D.D.C.2003), aff’d 117 Fed.Appx. 769 (D.C.Cir.2004).

On January 5, 2006, probationary officer Jason assisted police Sergeant Gregory W. Metakes in the arrest and transportation of Zachary T. Jones in Middletown, New York. When Jackler arrived, Jones was handcuffed with his hands behind his back. Jackler opened the rear driver-side door of his patrol car, and Metakes placed Jones in the back seat. As Metakes closed the door, Jones yelled an insult at Metakes. Metakes immediately reopened the door and struck the still-handcuffed Jones in the face. At the station, police supervisors helped Jones file an excessive force complaint against Metakes. Jackler filed a report confirming that Metakes had reopened the car door to punch Jones after the insult. Police managers, acting on orders of Police Chief Matthew Byrne, met with Jackler to pressure him to withdraw his report and submit a new one that supported Metakes. Jackler refused. Byrne then recommended to the Board of Police Commissioners that it terminate Jackler’s probationary employment.  For the first time in the City’s history, the Board did just that.  At the same time, the Board authorized hiring four new officers.

A district court reluctantly dismissed Jackler’s retaliation claim based on Garcetti and a Second Circuit decision called Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.), cert. denied, 131 S. Ct. 444 (2010). On appeal, the Second Circuit considered that

“Exposure of official misconduct, especially within the police department, is generally of great consequence to the public.” Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001); see Garcetti, 547 U.S. at 425 (“governmental … misconduct is a matter of considerable significance”). The Fourth Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, prohibits the use of excessive force by policemen in the course of an arrest, see, e.g., Graham v. Connor, 490 U.S. 386, 394 (1989), and it is a federal offense to deprive a person of his or her civil rights under color of law, see 18 U.S.C. § 242. Deliberate indifference to claims of such civil rights violations—tantamount to a custom or policy sufficient to support municipal liability under § 1983—may be inferred from a municipality’s lack of appropriate response to repeated complaints of such violations.

The Court went on to note how it would have been a crime for Jackler to make a false statement that Metakes was innocent, and how such laws apply equally to government employees and civilians alike. Just as the managers could not force Jones to withdraw his complaint, or make a false statement, they also could not force Jackler to do so either. Jackler’s status as a public employee had nothing to do with his duty to refrain from filing a false statement. The Court explained:

The government as an employer has broad discretion to manage its operations. But that discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing.

After the Second Circuit issued its decision for Jackler, the DC Circuit issued its decision on Bowie’s petition for rehearing. The DC Circuit disagreed with the Second Circuit and said that the plaintiff’s status as a public employee is more important to the Garcetti analysis than the civilian analog requiring that statements in official investigations be truthful.

While is outcome is a relief for Jason Jackler, the outcome is particularly disturbing for those of us who care about honest government operations here in DC. The federal appeals court is literally saying that it is more important that managers can control their employees than it is that employees can be honest in official investigations.  This goes beyond what is required by the Supreme Court in Garcetti which is focused on the government’s control of what its agents say on behalf of the government.

Congratulations to Chester, New York, attorney Stephen Bergstein who represented Jason Jackler.  Bergstein has agreed to speak with me about this case for tomorrow’s episode of Honesty Without Fear.  Listen in at 1:00 p.m., eastern time on Tuesday, February 28, 2012.

The cases are Bowie v. Maddox, 642 F.3d 1122, 1134 (D.C. Cir. 2011), cert. denied, Sup. Ct. Case No. 11-670, and Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), cert. denied, Sup. Ct. Case No. 11-517.

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