A federal appeals court has revived the case of a former official of a Pennsylvania county who sued over her alleged retaliatory firing for reporting a crime.

The U.S. Court of Appeals for the Third Circuit on Oct. 10 reversed the trial court's dismissal of plaintiff Donna Javitz's case against the county.

According to Third Circuit Judge L. Felipe Restrepo's precedential Oct. 10 opinion, Javitz worked as Luzerne County's director of human resources. Javitz reported to the district attorney that she had been illegally recorded during a county meeting with union officials.

She alleged, however, that her supervisors told the district attorney to drop the matter. After that, she claimed her supervisors bypassed her and gave work assignments directly to her employees, moved her office and eventually fired her.

Javitz alleged that the firing was because she reported the illegal recording to the district attorney, in violation of her free speech rights. The district court dismissed her case, reasoning that she was not protected by the First Amendment because she spoke in her capacity as a public official and not as a citizen.

The Third Circuit held that even though Javitz was a high-ranking official, reporting crime was not part of her official duties.

"The district court found that it was 'by virtue of [Javitz's] position as a public employee that [she] was allowed to make the speech in the mode and manner in which she did; that is, accompanied by her supervisor and director to the district attorney,'" Restrepo said. "This reasoning does not follow our precedent—unless the mode and manner of Javitz's speech was 'part of the work [she] was paid to perform on an ordinary basis[,]' the fact that she could easily contact the district attorney by virtue of her employment does not support a finding that Javitz spoke as an employee and not a citizen."

He added, "The record and the district court found that nowhere in her job duties was she instructed to report crimes. Rather, the district court placed significant emphasis on the County Ethics Code which 'encouraged [Javitz] to disclose any information which … she believe[d] evidence[ed] a violation of any law, rule or regulation.'"

That emphasis was misplaced, Restrepo said.

"Without more, relying on the County Ethics Code that merely encourages reporting wrongdoing is not enough to bring her reporting into the realm of her ordinary job duties," Restrepo said. "The district court's emphasis on the suggestion by the County Ethics Code is misplaced. It is commonplace for ethics codes and employee handbooks to encourage reporting wrongdoing, and absent some formal job duty or responsibility, such encouragement is not enough to bring Javitz's reporting into the realm of her official duties—that is, the realm of employee speech."

Matthew Comerford of Comerford Law represents Javitz and did not respond to a request for comment. Mark Bufalino of Elliott Greenleaf represents Luzerne County and did not respond to a request for comment.