Defining Official-Duty Speech and Whistleblower Standards in Peck v. Bolognone

Introduction

Peck v. Bolognone is a Third Circuit decision addressing the limits of First Amendment protection for public employees’ speech and the contours of Pennsylvania’s Whistleblower Law. Appellant Sean Peck, a sergeant in the Philadelphia Police Department, sued his supervisors—Lieutenant Megan Bolognone, Deputy Commissioner Krista Dahl-Campbell, and Chief Inspector Michael Cochrane—under 42 U.S.C. § 1983 (First Amendment retaliation) and the Pennsylvania Whistleblower Law (43 Pa. Stat. §§ 1421–28). The district court granted summary judgment for the defendants, concluding that (1) Peck’s emails were sent pursuant to his official duties and thus not protected by the First Amendment, and (2) he failed to make a “good faith report” of actual wrongdoing or to show causation under the Whistleblower Law. On May 1, 2025, a three-judge panel unanimously affirmed.

Summary of the Judgment

• First Amendment Claim: Relying on Garcetti v. Ceballos and subsequent Third Circuit authority, the court held that speech “pursuant to official duties” is unprotected. Peck’s emails about attendance and alleged overtime fraud fell within his sergeant responsibilities and thus were not actionable.
• Pennsylvania Whistleblower Law Claim: The court found that Peck did not make a “good faith report” of actual statutory violation, since he had no evidence of completed overtime fraud, and that he could not establish a causal link between his communications and any adverse employment action.
• Disposition: The Third Circuit affirmed the district court’s grant of summary judgment on both claims.

Analysis

1. Precedents Cited

• Garcetti v. Ceballos (547 U.S. 410): Established that statements made pursuant to a public employee’s official duties are not protected by the First Amendment.
• Lane v. Franks (573 U.S. 228): Clarified that the inquiry focuses on whether the speech itself is part of the employee’s core duties, not merely whether it concerns them.
• Amalgamated Transit Union Loc. 85 v. Port Authority (3d Cir. 2022): Reaffirmed that public employees enjoy lesser free‐speech protections when speaking as part of their jobs.
• Flora v. County of Luzerne (776 F.3d 169): Outlined the plaintiff’s burden in showing protected speech and causation in § 1983 retaliation suits.
• O’Rourke v. Commonwealth (Penn. 2001): Defined the elements of a whistleblower claim under Pennsylvania law, including “good faith report” and causal connection.

2. Legal Reasoning

The court’s reasoning unfolds in two parts:

• First Amendment Retaliation:
  • Public employees must show (1) they spoke as private citizens, (2) on matters of public concern, and (3) that their speech motivated adverse action.
  • Here, Peck wrote two emails to his superiors about attendance issues and alleged overtime fraud—tasks squarely within his sergeant duties (e.g., assignment sheets, staffing, timeliness).
  • Under Garcetti and Lane, communications made pursuant to those duties lose constitutional protection. Emails sent up the chain of command about routine workplace matters remain part of the job, not private speech.
• Pennsylvania Whistleblower Law:
  • To prevail, a plaintiff must prove by a preponderance of evidence that (1) he made a “good faith report” of actual wrongdoing, and (2) a causal connection exists between that report and an adverse employment action.
  • Peck’s emails did not describe any completed statutory violation—he himself admitted he never witnessed officers leave the premises to commit time or overtime fraud. Reporting only “potential” misconduct is insufficient.
  • Even assuming a qualifying report, Peck could not establish that any demotion or negative performance evaluation was causally linked to his emails. Temporal proximity alone (a few months) was not “unusually suggestive,” and there was no pattern of antagonism or evidence his supervisors knew of the email before exercising discipline.

3. Impact

• First Amendment Jurisprudence: This decision reinforces the Garcetti framework, leaving little room for public employees to claim constitutional protection when commenting internally on matters they are paid to manage.
• Whistleblower Litigation in Pennsylvania: Peck underscores the strict requirement for a “good faith report” of actual statutory or regulatory violations and the need for clear proof of causation. Plaintiffs must gather tangible evidence of wrongdoing and demonstrate their employer’s knowledge of the report before discipline.
• Public Agency Policies: Agencies may confidently discipline employees for insubordination or policy enforcement questions without fear of First Amendment backlash, provided the communications arose from the employees’ job duties.

Complex Concepts Simplified

• Protected vs. Official-Duty Speech: If you speak in the course of doing your normal job tasks—such as writing reports or updating supervisors—you are not “speaking as a private citizen,” even if you raise controversial issues.
• “Good Faith Report” (Whistleblower Law): A plaintiff must report conduct he reasonably believes already violates a law or rule (not just could). Speculation or anticipatory warnings do not qualify.
• Causation Requirement: It is not enough that punishment followed a report. The employee must show the employer knew of the report and acted because of it—through timing, direct threats, or a continuing pattern of hostility.

Conclusion

Peck v. Bolognone affirms two critical principles: first, internal communications made pursuant to a public employee’s official duties receive no First Amendment shield; second, Pennsylvania’s Whistleblower Law demands a genuine, good faith report of completed wrongdoing and concrete proof that the report prompted any adverse action. Together, these holdings delineate clear boundaries for public‐sector speech and whistleblower claims, guiding future employees, supervisors, and courts in evaluating similar disputes.