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A high school athletic director who claims he was fired for exposing a hazing scandal and a building inspector who lost his job after a political shift cannot sustain First Amendment retaliation claims against government entities, federal judges have ruled in separate cases. The two Northern District cases are unrelated except for the fact that both arose from Rensselaer County, N.Y. Together, they underscore the heavy burden public employees must overcome when claiming that they were ousted for asserting their constitutional right to free speech. “In order to be protected by the First Amendment, speech by a public employee must be regarding a matter of public concern,” U.S. District Judge David N. Hurd wrote in Cioffi v. Averill Park Central School District Board of Education, 1:02-CV-887. “Personal workplace grievances are not protected.” Judge Lawrence E. Kahn wrote in Zdziebloski v. Town of East Greenbush, 1:96-CV-1040: “This Circuit does not allow a plaintiff to rely upon ‘conclusory assertions of retaliatory motive to satisfy the causal link [ Cobb v. Pozzi, 363 F. 3d 89, 2004]‘ between the speech at issue and the adverse employment action.” Cioffi stemmed from long-standing hostility between Louis F. Cioffi III, who held a tenured position as athletic director at Averill Park Central School, and the varsity football coach, Kevin Earl. Records show that Cioffi repeatedly complained to the administration about the way in which Earl was running the football program. In early 2002, after three students and two teachers were charged in a hazing incident, Cioffi publicly accused the Board of Education of engaging in a cover-up to protect Earl. Earl and all the other football coaches were ultimately suspended from coaching for the 2002-03 school year. The school board subsequently abolished Cioffi’s job and created a new position for which he was not eligible. He initially reverted to a teaching post, but has since left the district. Judge Hurd dismissed Cioffi’s lawsuit, granting summary judgment to the defendants. “Plaintiff’s claims involve personal conflicts between himself and the defendants involving his duties and responsibilities as Athletic Director for the school district,” Hurd wrote. “These personal employment conflicts between an employee and his supervisor or his employer do not come close to rising to the level of a constitutional or civil rights claim.” Beth A. Bourassa of Whiteman, Osterman & Hanna in Albany, N.Y., appeared for the defendants. Phillip G. Steck of Cooper, Erving & Savage in Albany represented Cioffi. BUILDING INSPECTOR The East Greenbush case involved a former assistant building inspector, John M. Zdziebloski, who was hired when Republicans controlled town government. After the Democrats captured a majority of the Town Board seats in 1993, he campaigned for and contributed to Republican candidates. After the 1995 elections, when the Democrats retained control, he was laid off along with six other people. Zdziebloski demanded pay for unused vacation, personal and sick time. But he refused to sign a release freeing the town of any potential claims he might assert. The town routinely requires such releases from non-retiring, non-union employees in exchange for compensation. When Zdziebloski would not sign the release, the town refused to pay his unaccrued leave time. Zdziebloski’s retaliation claim was complicated by the fact that while on duty he had solicited and received several truckloads of firewood from local builders, developers and contractors. He claimed the firewood issue provided a pretext for an unconstitutional termination. But Judge Kahn said that alone raised enough of an ethical concern to justify the dismissal. “His assertions that he was fired, not rehired, and denied compensation because of his political affiliation and activities are conclusory statements that are not supported by any evidence,” Judge Kahn wrote. Thomas J. O’Connor of Napierski, Vandenburgh & Napierski in Albany appeared for the town. Lewis B. Oliver Jr. of Albany appeared for Mr. Zdziebloski.

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