from Betsy Combier -
If
you want to be a whistleblower, then you have to repeat the following,
"I am speaking as a private citizen on a matter of public concern" in
order to overcome Garcetti v. Ceballos, the lack of protection for employees who speak out as in the reversal of Ross v Breslin, below:
United States Court of Appeals,Second Circuit.
ROSS v. BRESLIN
Risa A. ROSS, Plaintiff–Appellee, v. Peter F. BRESLIN, Eve
Hundt, Michael Gordon, Felycia Sugarman, Donna Walsh, Bruce Pavalow,
Warren Schloat, Board of Education of The Katonah–Lewisboro Union Free
School District, Katonah Lewisboro Union Free School District, Kevin
Sheldon, Defendants, Robert Lichtenfeld, Defendant–Appellant.
Docket No. 10–5275–cv.
-- September 10, 2012
Before WALKER, LEVAL, and POOLER, Circuit Judges.
Jonathan Lovett, Law Office of Jonathan Lovett, Hawthorne, NY, for
Plaintiff–Appellee.ROndiene E. Novitz, Cruser, Mitchell & Novitz,
LLP, Melville, NY, for Defendant–Appellant.
This appeal requires us to determine whether plaintiffappellee Risa
A. Ross (“Ross”) was speaking pursuant to her official duties as a
payroll
clerk typist for the Katonah Lewisboro Union Free School District (“the
District”) when she reported financial malfeasance to
defendant-appellant Robert Lichtenfeld (“Lichtenfeld”), the District's
tendent, and to the Katonah–Lewisboro Board of Education (“the Board”).
The United States District Court for the Southern District of New York
(William G. Young, Judge ) held that Ross was speaking as a private
citizen and that her First Amendment retaliation
claim could proceed to
trial. We disagree. We conclude that Ross's complaints were made
pursuant to her official duties and therefore were not protected by the
First Amendment. See Garcetti v. Ceballos, 547 U.S. 410 (2006).
Accordingly, Lichtenfeld is entitled to summary judgment on Ross's First
Amendment retaliation claim.
BACKGROUND
When reviewing an
interlocutory appeal from a denial of a motion for summary judgment, we
resolve all factual disputes in favor of the non-movant. Droz v.
McCadden, 580 F.3d 106, 108 (2d Cir.2009). In 1998, Ross was hired by
the District as a
payroll clerk typist. Her immediate supervisor was
Margaret Taylor. Lichtenfeld was, at all relevant times, the District's
Superintendent. Ross testified that her job duties were:
To
process biweekly payrolls for approximately 800 people, transmit direct
deposit, [and] mail out [checks relating to other payments, such as
taxes and garnishments,] ․ getting the pay reqs. [requisitions] ․ and
processing, making sure that the pay rates were correct, making sure
that the totals were correct, and verifying. If there was a mistake with
a pay req., bringing it to the appropriate person's attention.
․
If
it was a mistake that I felt was a mistake, I would bring it to the
person's attention․ If there was a pay req. that I disagreed with and I
had questions about․
․
I brought—a lot of them I brought to Bob [Lichtenfeld]'s attention that I didn't think were appropriate.
Ross Deposition 64–65. Ross's job required her to know the current salary of each district employee.
Between
May 2003 and July 2006, Ross met with Lichtenfeld on numerous occasions
to express concern over payments she believed to be improper. At their
first meeting in May 2003, Ross informed Lichtenfeld that Howard “Lee”
Turner, a District courier, had forged his supervisor's signature to
obtain additional pay. Ross played voicemails for Lichtenfeld in which a
supervisor told her to forget about Turner's actions and not say
anything. Lichtenfeld informed the Board of Turner's forgery. Turner
voluntarily resigned to avoid disciplinary action and received
compensation for his accrued vacation time and two months of continued
health insurance.
On
February 10, 2004, Ross again met with Lichtenfeld to tell him that
John Thibdeau, the director of administrative services, was retaliating
against her for questioning improper payments he had approved and for an
incident involving Lisa Kor. At this meeting, Ross gave Lichtenfeld
documentation of some of these disbursements. When Lichtenfeld looked at
the documentation, he said something to the effect of: “Oh, my God.
This is worse than the Enron scandal. If taxpayers find out heads will
spin.” Ross Deposition 119. Following this meeting, Ross continued to
meet with Lichtenfeld about similar complaints.
Ross's complaints
primarily concerned improper disbursements which she believed were made
without the required Board approval based on her review of Board meeting
agendas. She had been told by Lichtenfeld that “Board action people”
(individuals not under contract who must be annually approved by the
Board) were not entitled to overtime. She approached Lichtenfeld with
examples of Board action people who were receiving overtime pay without
Board approval. Similarly, Lichtenfeld told Ross that it was illegal to
give out bonuses or performance awards without Board approval. Ross
complained of numerous performance awards, bonuses, stipends, at least
one longevity payment, and other miscellaneous disbursements all of
which she believed were made without the necessary Board approval. In a
separate incident, Ross complained that Lichtenfeld had spent $500 of
District funds to buy chocolates for a gift.
In October 2005, the
District hired Renee Gargano (“Gargano”) as an outside consultant to
help resolve interpersonal problems among the staff. Gargano was at all
relevant times Deputy Superintendent of the Putnam/Northern Westchester
BOCES (“Putnam”), a nearby school district. Upon viewing a list of
employees, Gargano recognized Ross's name and informed Lichtenfeld that
Ross had previously been employed by Putnam. Gargano did not recall
having received a reference check call when Ross was hired by the
District. Further investigation revealed that Ross had failed to list
her employment with—and termination from—Putnam, as well as two other
school districts, on her employment application.
In January 2006,
Ross met with Gargano. Ross told Gargano about the improper payments she
had reported to Lichtenfeld and showed her the relevant documentation.
Gargano took the documents and said she would discuss the matter with
Lichtenfeld.
On May 23, 2006, Ross was suspended with pay by Kevin
Sheldon, the District's Assistant Business Administrator. On July 21,
2006, Ross wrote a letter on her personal stationary to the individual
Board members outlining the concerns she had raised to Lichtenfeld. The
letter began: “Although I am an employee of the School District, I am
writing to you, ․ President of the Board of Education, on a personal
note out of complete frustration with the District's administration.”
after explaining her conversations with Lichtenfeld and noting her
frustration with his failure to take what she considered to be
appropriate action, she stated that her suspension was in retaliation
for reporting financial malfeasance.
After the Board received this
letter, it convened an executive session at which Lichtenfeld
recommended Ross's termination. The Board voted to terminate her. It
subsequently learned, however, that Ross had been entitled to a
pretermination hearing. It rescinded her termination and initiated a
disciplinary hearing, which was held on August 24 and 31, 2006, before
Hearing Officer Joseph E. Wooley. The Hearing Officer found that Ross
had knowingly made false statements on her application and recommended
that she be terminated. On December 19, 2006, the Board voted
unanimously to terminate Ross.
Ross filed this amended complaint
in March 2007 claiming in relevant part that her termination was a
violation of her First Amendment rights. Lichtenfeld moved for summary
judgment. On December 6, 2010, the district court granted the motion as
to some of Ross's claims, but denied it with regard to her First
Amendment retaliation claim. Ross v. Lichtenfeld, 755 F.Supp.2d 467
(S.D.N.Y.2010). The district court concluded that Lichtenfeld was not
entitled to qualified immunity on that claim. Id. at 479. Lichtenfeld
appeals.
DISCUSSION
An interlocutory appeal from a denial of
summary judgment is permissible when a district court denies the
defendant qualified immunity. See Cowan ex rel. Estate of Cooper v.
Breen, 352 F.3d 756, 760 (2d Cir.2003). Such an appeal is allowed only
if the defendant contends that he is entitled to qualified immunity
under the plaintiff's version of the facts. Id. at 761. Ross argues that
we lack jurisdiction because this appeal is based on disputed facts,
i.e., Lichtenfeld's intent. However, we agree with Lichtenfeld that even
under Ross's version of the facts, her complaints are not entitled to
First Amendment protection because they were made pursuant to her job
duties. Thus, Ross's jurisdictional argument is without merit.
We
will
grant summary judgment if, taking all the facts in the light most
favorable to the non-moving party, the defendant was entitled to
qualified immunity as a matter of law. Id. at 760–61. In general,
qualified immunity shields “government officials performing
discretionary functions ․ from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity
inquiry can turn on either of two questions: whether the complaint
alleges the deprivation of an actual constitutional right, or whether
the right was clearly established at the time of the incident. See
Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). A “no” answer to
either question requires judgment for the defendant. See id. at 245;
Costello v. City of Burlington, 632 F.3d 41, 51 (2d Cir.2011) (Pooler,
J., concurring). The district court concluded that Ross had presented
sufficient evidence that Lichtenfeld violated her clearly established
First Amendment right to freedom of speech. We disagree and hold that,
because Ross was speaking pursuant to her official duties and not as a
private citizen, her speech was not protected by the First Amendment.
Because we find that the complaint does not allege a violation of a
constitutional right, it is clear a fortiori that the right was not
clearly established at the time of the incident.
In the First
Amendment context, “the State has interests as an employer in regulating
the speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the citizenry
in general.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will
Cnty., Ill., 391 U.S. 563, 568 (1968). Speech by a public employee is
protected by the First Amendment only when the employee is speaking “as a
citizen ․ on a matter of public concern.” Piscottano v. Murphy, 511
F.3d 247, 269–70 (2d Cir.2007). In
Garcetti v. Ceballos, the Supreme
Court held that “when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” 547 U.S. at 421. This is the
case even when the subject of an employee's speech is a matter of public
concern. Jackler v. Byrne, 658 F.3d 225, 237 (2d Cir.2011); Anemone v.
Metro. Transp. Auth., 629 F.3d 97, 115–16 (2d Cir.2011). Therefore, if,
as a matter of law, Ross was speaking pursuant to her official duties,
Lichtenfeld is entitled to summary judgment.
In Garcetti, the
plaintiff, Richard Ceballos, who was a deputy district attorney, was
asked by a defense attorney to review an affidavit that had been used to
obtain a search warrant. Ceballos discovered significant
misrepresentations in the affidavit. He informed his supervisors of his
discovery and wrote a disposition memo recommending that the charges be
dismissed. He claimed that he was subsequently subjected to retaliatory
employment action. 547 U.S. at 413–15. The Supreme Court determined that
he had not been speaking as a citizen when he told his supervisors
about the problems with the affidavit: “The controlling factor in
Ceballos' case is that his expressions were made pursuant to his duties
as a calendar deputy․ Ceballos spoke as a prosecutor fulfilling a
responsibility to advise his supervisor about how best to proceed with a
pending case․” Id. at 421. In short, “Ceballos wrote his disposition
memo because that is part of what he, as a calendar deputy, was employed
to do.” Id.
The Court further observed that “[r]estricting speech
that owes its existence to a public employee's professional
responsibilities does not infringe any liberties the employee might have
enjoyed as a private citizen.” Id. at 421–22. Instead, “[i]t simply
reflects the exercise of employer control over what the employer itself
has commissioned or created.” Id. at 422.
In Weintraub v. Bd. of
Educ., 593 F.3d 196 (2d Cir.2010), we addressed the applicability of
Garcetti to a teacher's complaints about his school administration's
failure to discipline a disruptive student. After the administration
failed to punish a student in Weintraub's class for throwing a book on
two separate occasions, Weintraub told his supervisor and coworkers that
he intended to file an employee grievance with his union, and
thereafter filed the grievance. Weintraub, 593 F.3d at 198–99.
Weintraub
argued that his complaints were not made pursuant to his official
duties because they were not required by his job description, school
policy, or other relevant regulations. Id. at 201–02. We rejected this
argument, holding that “under the First Amendment, speech can be
‘pursuant to’ a public employee's official job duties even though it is
not required by, or included in, the employee's job description, or in
response to a request by the employer.” Id. at 203. We emphasized that
the inquiry into whether speech was made pursuant to an employee's
“official duties is ‘a practical one,’ “ id. at 202 (quoting Garcetti,
547 U .S. at 424), focused on whether the speech “was part-and-parcel of
his concerns about his ability to properly execute his duties.”
Weintraub, 593 F.3d at 203 (internal quotation marks omitted). We
further noted that Weintraub's speech took the form of an employee
grievance, an avenue unavailable to private citizens. Id . at 203–04
(“Although the lack of a citizen analogue is not dispositive in this
case, it does bear on the perspective of the speaker-whether the public
employee is speaking as a citizen ․“ (internal citation and quotation
marks omitted)).
The inquiry into whether a public employee is
speaking pursuant to her official duties is not susceptible to a
brightline rule. Courts must examine the nature of the plaintiff's job
responsibilities, the nature of the speech, and the relationship between
the two. See id. at 201–02. Other contextual factors, such as whether
the complaint was also conveyed to the public, may properly influence a
court's decision. See id. at 205.
In this case, Ross alleges three
instances of protected speech: her reports to Lichtenfeld about
improper payments and promotions, her statements to Gargano about the
same issues, and her letter to the Board members. The district court
concluded that the statements to Gargano were not protected because they
were in the nature of an employee grievance, but that Ross's statements
to Lichtenfeld and her letter to the Board were entitled to First
Amendment protection because in those instances, in the district court's
view, she was speaking on a matter of public concern, she went outside
the chain of command, and her complaints were not in the nature of an
employee grievance. Ross, 755 F.Supp.2d at 474–75. Lichtenfeld contends
that, although Ross's speech was on a matter of public concern, it was
made pursuant to her duties as a payroll clerk typist and is therefore
not protected by the First Amendment. We agree.
Ross testified
that her
job duties included processing the payroll and making sure pay
rates were correct. She stated that if there was a mistake with a pay
requisition, her duty was to “bring[ ] it to the appropriate person's
attention.” Ross Deposition 64. She specifically noted that she brought
many such requisitions to Lichtenfeld's attention. Id. at 65. Ross
learned that overtime for Board action people and performance bonuses
without Board approval—the cause of most of her individualized
complaints—were improper because she was told so by Lichtenfeld and her
supervisor. Id. at 89, 95–97. She further stated that she was not able
to balance out the payroll without knowing whether certain payments had
been approved by the Board. Id. at 100–01. Ross attempts to downplay the
importance of her role in the District's payroll system, noting that
descriptions of her job consistently refer to it as “clerical.”
Appellee's Br. at 19. However, “[f]ormal job descriptions often bear
little resemblance to the duties an employee actually is expected to
perform.” Garcetti, 547 U.S. at 424–25.
Ross's testimony makes
plain that reporting pay irregularities to a supervisor was one of her
job duties. She admitted that her responsibilities included reporting
mistakes to supervisors. Moreover, she acquired all of the information
she relayed to Lichtenfeld in the ordinary course of performing her
work, and she was not able to meet her responsibility of balancing the
payroll without resolving pay requisition irregularities on at least one
occasion. Her reports to Lichtenfeld were part and parcel of her
official responsibilities.
Ross urges that she was speaking as a
private citizen because she went outside the chain of command by first
bringing her concerns to Lichtenfeld instead of her supervisor and then
by writing to the Board. However, Ross testified that her duties
included bringing payroll irregularities “to the appropriate person's
attention,” and went on to say that she frequently brought such issues
to Lichtenfeld, implying that reporting to Lichtenfeld as “the
appropriate person” was within the purview of her job duties. Ross
Deposition 64–65. Moreover, Ross brought her concerns to Lichtenfeld
because she believed her supervisor was ignoring them; and she similarly
wrote to the Board only when she believed that Lichtenfeld was not
acting on her complaints. Taking a complaint up the chain of command to
find someone who will take it seriously “does not, without more,
transform [her] speech into protected speech made as a private citizen.”
Anemone, 629 F.3d at 116.
Ross's assertion in her letter that she
was writing “on a personal note” rather than as a District employee
does not alter our conclusion. An employee's characterization of her own
speech is not dispositive.
Because Ross never attempted to
communicate her complaints to the public, she cannot avail herself of
the argument that her duties in no way included public revelation of
misconduct of district officials that is generally available to the
employee who takes the issue public. Cf. Weintraub, 593 F.3d at 205
(where the plaintiff had no such argument as he never communicated with
the public).
We emphasize that our holding that Ross's speech was
unprotected does not rest on the fact that her speech was made in the
workplace as opposed to elsewhere. Speech to a supervisor even in the
workplace can be protected as that of a private citizen if it is not
made pursuant to the employee's official duties as an employee. Courts
must focus their inquiry on the nature of the speech itself and its
relationship to the plaintiff's job responsibilities. We also observe
that complaints about workplace misconduct, while they may be
unprotected by the First Amendment if made as part of the plaintiff's
job duties, still may be protected by whistleblower laws or other
similar employment codes. See Garcetti, 547 U.S. at 425–26; Ruotolo v.
City of N.Y., 514 F.3d 184, 189 n. 1 (2d Cir.2008).
Finally, we
note that this circuit's recent holding in Jackler v. Byrne, 658 F.3d
225, does not bear on our case. In Jackler, the plaintiff was a
probationary police officer who allegedly witnessed the use of excessive
force against a suspect by a fellow officer. That suspect filed a
civilian complaint against the officer. At the request of his
supervisor, and in accordance with written police procedure, Jackler
filed a report corroborating the accusation of excessive force. Id. at
230–31. Jackler's supervisors pressured him to retract the report and
falsify his story to protect the offending officer. When Jackler
refused, he was not hired as a full-time officer. Id. at 231–32. The
panel concluded that Jackler had a cognizable First Amendment claim
because, when he refused to file a false report, he was speaking as a
citizen.
Jackler involved very different circumstances from this
case. The panel emphasized that Jackler had been asked to “retract his
truthful statements and make statements that were false,” and determined
that “his refusals to accede to those demands constituted speech
activity that was significantly different from the mere filing of his
initial Report.” Id. at 241. Indeed, if Jackler had made a false
statement to the police, he would have violated New York law. Id. at
239. Jackler is therefore plainly distinguishable on its facts. Ross
alleges that she suffered retaliation for making affirmative statements
of misconduct to her supervisors, not for refusing to make false
statements that no misconduct had occurred.
In this case, the
speech that prompted Ross's retaliation claim owed its existence to her
job duties and was made in furtherance of those duties. As a payroll
clerk, she was tasked with reporting pay irregularities to her
supervisors, and that is what she did here. Accordingly, her complaints
to Lichtenfeld and the Board were not protected by the First Amendment,
and Lichtenfeld is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, the judgment of the district court is REVERSED.
JOHN M. WALKER, JR., Circuit Judge:
