Gerald Olbek was the deputy chief of the Wildwood Police Department in Florida. After a series of events that included a fire at the Department’s station, Olbek became concerned that the station had a serious mold problem. Olbek wrote a memo detailing the mold issues. The memo cited the fact that numerous employees had complained of health conditions related to mold and that the City had tried to remedy the problem by bleaching the walls, which Olbek believed did not work on porous surfaces.
With the approval of the police chief, Olbek sent the memo to the City’s HR director as well as all departmental employees. The memo was prepared on official Wildwood Police Department letterhead with Olbek’s name and title at the top.
In response to the ‘Mold Memo’ and another similar memo from a different police officer, the HR director sent three of her own memoranda. Taken together, her memoranda announced, among other things, that she would be investigating the mold issues and would provide a report to the city manager, that the evidence locker would be relocated from the old building, that entry into the old building “for any other purpose” than moving the evidence locker was “strictly prohibited unless authorized by” by the HR director, and that all officers were encouraged to get tested at the City’s medical clinic for mold and asbestos exposure.
Olbek decided to take further action. A captain suggested to Olbek that they should take samples of drywall from the old building to have them tested for mold. Both believed that the City would demolish the building or otherwise cover up the mold problem. Olbek ordered the captain to take the samples. The captain had a detective remove pieces of drywall for sampling.
When the city manager learned that holes had been cut into the drywall, he believed an investigation was needed because he thought somebody had taken the drywall to set the City up “for a giant lawsuit” and to “hurt the City, to get a payday.” At the City’s request, the local Sheriff ’s Department began a criminal investigation. While the investigation was pending, Olbeck and the captain resigned and the investigation thereafter terminated.
Olbeck sued the City, contending that his resignation was a “constructive discharge” motivated by the Mold Memo, which Olbeck alleged was protected speech under the First Amendment. The federal 11th Circuit Court of Appeals disagreed and dismissed the lawsuit.
The Court noted that “to succeed on a First Amendment retaliation claim, a public sector employee plaintiff must show, among other things, that he spoke as a private citizen. If instead of speaking as a citizen he spoke as an employee in furtherance of his ordinary job duties, his speech was not protected by the First Amendment and his claim fails.
“Olbek spoke as an employee. He spoke pursuant to his official job duties, the purpose of his speech was work-related, and he never spoke publicly. Olbek’s job duties included broad administrative responsibilities, and we’ve repeatedly held that when the employee speaks pursuant to those duties, then the speech is not protected by the First Amendment. Olbek wrote the Mold Memo as the Deputy Chief of Police, used official Wildwood Police Department letterhead with his title on it, received approval from his supervisor to send it, emailed the memo from his office during work hours, sent it directly to HR, and in it he requested only that employees be tested.
“Olbek’s purpose in sending the Mold Memo was to protect the safety of City employees, people he viewed as being his employees and subordinates. For example, in the context of explaining why he sent the Mold Memo to HR, Olbek testified: ‘First and foremost my concern is my employees. And he said that any of the City’s liability issues don’t ever outweigh employee health.’ Clearly, Olbek’s perspective was that of an employee protecting the scope of his job responsibilities and those he viewed as working with him.”
Olbek v. City of Wildwood, 2021 WL 1245276 (11th Cir. 2021).
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