Tenth Circuit Approves of Harrassment-Via-Investigation

A doctor who reported her colleagues for drug and alcohol abuse received what all government employees who report misconduct receive - a commendation.  Actually, the hospital rewarded her by investigating her.  In a 38-page opinion, a unanimous three-judge panel dismisses her First Amendment/retaliation claim.

One of the opinion's more troubling aspects: "An investigation of potential misconduct, as already noted, will generally not constitute an adverse employment action."  Couch v. Carter, No. 08-8001 (10th Cir. Nov. 17, 2009) (here).  Thanks for the complaint.  Now please excuse me while I put on these latex gloves.  Oh, no, this isn't retaliation.  It's just an investigation, after all.

The government employee speech cases all do a great job of ensuring that government employees never actually report misconduct.  What's the incentive?  I suppose we'd say, "Doing the right thing."  How many of you are willing to risk your career and your pension?  Federal judges are ensuring that government employees look the other way rather than report misconduct.

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