Does a teacher who complains about unclean classroom conditions have the right to maintain an action for retaliation when she complains about those conditions?

No. Yvonne Massaro, an art teacher at Edmond R Murrow High School, taught art in a shared classroom when she contracted scabies. She complained to the principal and others that her condition was caused by the unsanitary conditions of her classroom. She filed a comprehensive incident report claiming that mites from the classroom caused her condition and requested a room transfer. The principal refused to change her classroom and when the condition resurfaced later that year she was sent to the DOE’s medical division. She was immediately approved for full duty.

Within the next school years Massaro contended that her principal and assistant principal engaged in retaliatory conduct against her in response to her complaints about the condition of her classroom. She alleged that her classes were rescheduled to require her to walk up more stairs than before, that they placed too many special education students in her classes, assigned her to inconvenient “sweep” room monitoring duties and cancelled her TV production class and failed to provide adequate supplies for her classes.

The Second Circuit rejected her claims under the Garcetti standard which requires that public employee speech is protected only when the employee speaks on a matter of public concern and, if so, whether the public employer had an adequate justification for treating the employee differently.

Tthe Court reasoned that even though Marsallo was not under a duty to report the mite condition in her classroom, it was not the case where her public comments on a matter of public concern were delivered as a citizen, and not as an employee.

Yvonne T. MASSARO, Plaintiff–Appellant, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee. No. 11–2721–cv., United States Court of Appeals, Second Circuit. May 31, 2012. 2012 WL 1948772 (C.A.2 (N.Y.)

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