Transit Worker's Threatening Remarks Justify Firing, 2nd Circuit Rules

The New York City Transit Authority won an appeal June 21 of a case involving a local union chairman's threatening comments to a supervisor in December 2003 and to fellow employees in March 2004 immediately after a fire Transit Authority worker had shot and killed two of his former supervisors. Talking at the 240th Street Shop on the first work day after the shootings, Carlos Blackman said, "I hate to say this, but those two guys deserve what they got for getting the [shooter] fired," the 2nd U.S. Circuit Court of Appeals' per curiam decision in Blackman, et al. v. New York City Transit Authority, No. 06-4714-cv.

Blackman claimed his comments were protected by the First Amendment. (His December 2003 comment came during an argument about the safety of hydraulic jacks that car inspectors were required to use; the supervisor refused to take them out of service, and Blackman refused to use them but would not leave the work area as ordered. He told the supervisor, "I wish that some day I'll read in the newspaper that something bad has happened to you and also to your kids" and also, "I am not leaving; I have a [Transit Authority] pass, a union card, and a .38 and I'll call my brother," according to the decision.

The court characterized the Transit Authority's interest in firing Blackman as "substantial. Even assuming that Blackman's March 1, 2004 statements may have addressed matters of public concern, the opinions expressed by Blackman, when viewed in light of his earlier threat against [the supervisor], reveal him to be a person of violent disposition, who was potentially deeply disruptive of the workplace."

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