Nagle v. Marron, No. 10-1420 (2d Cir. 2011)
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Plaintiff brought suit under 42 U.S.C. 1983, alleging that defendants had retaliated against her for exercising her rights under the First Amendment. The district court granted summary judgment to defendants, holding that the speech on which plaintiff based her claim was not protected under the First Amendment and that the individual defendants had qualified immunity from suit. The district court held, alternatively, that summary judgment would have been appropriate if the speech had been protected, because the school district would have fired plaintiff even in the absence of the speech. Plaintiff appealed. The court held that plaintiff had made a prima facie showing of retaliation for speech protected by the First Amendment; that appellees' rebuttal was subject to credibility questions and hence could not be resolved as a matter of law; and that appellees were not, at this stage of the proceedings, entitled to qualified immunity.
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10-1420-cv Nagle v. Marron 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: March 24, 2011 Decided: December 12, 2011 ) Docket No. 10-1420-cv NANCY L. NAGLE, Plaintiff-Appellant, v. PAULA MARRON, ROSEMARIE COLETTI, and BARBARA MERLING, Defendants, and PAUL R. FRIED, individually, STEVEN CASTAR, individually, and MAMARONECK UNION FREE SCHOOL DISTRICT, NEW YORK, Defendants-Appellees.1 Before: CALABRESI, RAGGI, Circuit Judges, and GLEESON, District Judge.2 Nancy L. Nagle appeals from the district court s (Zilly, J.) grant of summary judgment to Appellees. We hold that Nagle has made a prima facie showing of retaliation for speech protected by the First Amendment; that Appellees rebuttal is subject to credibility questions and hence cannot be resolved as a matter of law; and that Appellees are not, at this stage of the proceedings, entitled to qualified immunity. Vacated and remanded. 1 The Clerk of Court is directed to amend the official caption to read as shown above. The Honorable John Gleeson of the United States District Court for the Eastern District of New York, sitting by designation. 2 1 1 2 3 4 5 6 7 8 9 10 11 12 JANE BILUS GOULD, Gould & Berg, LLP, White Plains, N.Y., for Plaintiff-Appellant. MAURIZIO SAVOIARDO (Michael A. Miranda on the brief), Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, N.Y., for DefendantsAppellees. CALABRESI, Circuit Judge: Plaintiff-Appellant Nancy L. Nagle brought suit under 42 U.S.C. § 1983, alleging that 13 Defendants-Appellees Paul R. Fried, Steven Castar, and the Mamaroneck Union Free School 14 District of New York had retaliated against her for exercising her rights under the First 15 Amendment. The court below (Thomas S. Zilly, Judge) granted summary judgment to 16 Defendants-Appellees, holding that the speech on which Nagle based her claim was not 17 protected under the First Amendment and that the individual defendants had qualified immunity 18 from suit. The court held, alternatively, that summary judgment would have been appropriate if 19 the speech had been protected, because the District would have fired Nagle even in the absence 20 of the speech.3 Nagle appeals. For the reasons stated below, we vacate the district court s grant 21 of summary judgment and remand the case to that court. BACKGROUND 22 23 I. The Incidents 24 From 2004 until 2007, Nagle worked as a tenure-track special education teacher at the 25 Chatsworth Avenue School in the Mamaroneck Union Free School District of New York (the 26 District ). On March 2, 2007, the school s principal, Defendant-Appellee Steven Castar, and the 3 The case was initially assigned to Judge Stephen C. Robinson of the Southern District of New York, but was reassigned to Judge Thomas S. Zilly of the Western District of Washington, sitting by designation in the Southern District of New York, on February 3, 2010. Judge Zilly issued his order following briefing and telephonic oral argument. In addition to Appellees, Nagle s complaint named as defendants Paula Marron, Barbara Merling, and Rosemarie Coletti, all employees of the Mamaroneck Union Free School District. The action was voluntarily discontinued as to those defendants before answers had been filed for them. 2 1 District s assistant superintendent for human resources, Rosemarie Coletti, informed Nagle that 2 the District s superintendent of schools, Defendant-Appellee Paul Fried, had decided not to 3 recommend her for tenure. Castar and Coletti informed Nagle that, therefore, her probationary 4 employment with the District would be terminated at the end of the school year. Nagle filed suit, 5 claiming that Fried s decision not to recommend her for tenure violated her First Amendment 6 rights because it was made in retaliation for two acts that, she argued, were protected by the First 7 Amendment. 8 9 The more recent of these acts took place in January 2007, after Nagle received a copy of a teaching observation report of her class written and signed by the Chatsworth Avenue School s 10 assistant principal, Paula Marron. Nagle had declined to sign the report, but the copy she 11 received appeared to bear her signature. Upon receiving the report, Nagle told Marron, Castar, 12 and John Esposito, the president of Nagle s teachers union, about the seemingly false signature. 13 After Castar informed him of the alleged forgery, Fried called the police, who determined that no 14 crime had been committed. Nevertheless, Nagle and the District separately hired handwriting 15 experts, each of whom concluded that Marron had signed Nagle s name. Thereafter, Fried 16 declined to renew Marron s contract for the following year, and Marron resigned. 17 The other act on which Nagle based her claim took place during the 2002-2003 school 18 year, while Nagle was a special education teacher in a public school in Henrico County, Virginia. 19 Nagle had reported to her principal in Virginia that she overheard Betty Moore, a teacher in a 20 neighboring classroom, verbally abusing children in her class. Nagle also informed the chair of 21 the Henrico County Early Childhood Special Education Program Department of reports Nagle 22 had gotten from other adults working in the school who had witnessed Moore both verbally and 3 1 physically abusing children under her care.4 After a private nurse attending to one of Moore s 2 students reported that she had witnessed Moore strike a child in the chest, Moore resigned from 3 the school, citing family reasons. But Moore kept her teaching license. Nagle then conveyed 4 what she had told school administrators to Virginia s Department of Child Protective Services 5 and to the state police. After a police investigation, Moore was charged with several counts of 6 felony child abuse; she eventually pled guilty to assault. Nagle s conduct in Virginia took place approximately four years before Superintendent 7 8 Fried declined to recommend her for tenure in New York; according to record testimony, 9 however, Castar and Fried only learned of Nagle s conduct in early 2007, shortly before Nagle 10 was informed of Fried s tenure decision. Nagle argues that the temporal proximity between 11 Fried s learning of the reported abuse incident and his decision not to recommend her for tenure 12 gives rise to an inference of retaliation. Appellees contend that Fried had already made his 13 decision regarding Nagle s tenure before he found out about her report of abuse in Virginia; thus, 14 the Virginia report played no role in the employment decision. 15 Instead, they assert, the tenure decision was based on Nagle s alleged behavior during a 16 December 2006 meeting. Over the course of this meeting, Castar raised his concerns regarding 17 two instances where Nagle allegedly violated school protocols. The first involved Nagle 18 choosing a book to read with her class without first consulting the school psychologist; the 19 second involved Nagle sending a child home from school early without first consulting school 20 administrators. Nagle was so distraught by what she heard that she left the meeting crying. 21 22 4 Nagle testified that she had been told by other adults working at the school that they had witnessed Moore, inter alia, push a child out of a wheelchair, put a child s head underwater in the sink, frequently eat the children s snacks, and often use abusive language with children. 4 1 2 II. The Opinion Below As an initial matter, the district court held that neither the forgery incident, nor the report 3 of abuse were protected under the First Amendment. With respect to the forgery incident, the 4 court determined that because the incident did not involve a crime and may have furthered some 5 personal agenda of Nagle s, it was not a matter of public concern and therefore was not 6 protected by the First Amendment. Nagle v. Fried, Order, No. 07-cv-2860 (TSZ) (S.D.N.Y. 7 March 19, 2010) ( Order ) at 19. With regard to the abuse report, the court held that Nagle s 8 conduct was not protected by the First Amendment because it undisputedly violated reasonable 9 protocols. Id. at 13. The court further opined that, even had Nagle s abuse report been protected 10 at the time it occurred, due to temporal and geographic remoteness, . . . to the extent it was 11 protected speech when uttered, it was no longer protected speech when [D]efendants learned 12 of [it] and/or denied her tenure. Id. at 16. 13 The court then held, in the alternative, that Nagle could not prove causation. Specifically, 14 the court determined that the District had established, as a matter of law, [that it] would have 15 made the same tenure decision in the absence of [Nagle s] expressive conduct, and that 16 therefore summary judgment would be appropriate even were one or both incidents protected 17 under the First Amendment. Id. at 22. 18 On the basis of the holdings described above, the district court granted Castar and Fried 19 qualified immunity from Nagle s suit. The court held that, because Nagle s expressive conduct 20 did not clearly constitute protected speech, a reasonable official in the position of Castar or 21 Fried would not have known that considering such conduct in reaching an adverse employment 22 decision might violate Nagle s rights. Id. 23 5 DISCUSSION 1 We review a grant of summary judgment de novo to determine whether genuine disputes 2 3 over material fact exist . . . which should properly be submitted to a jury or whether, where no 4 issues of material fact are found, the moving party is entitled to judgment as a matter of law. 5 Byrnie v. Town of Cromwell Bd. of Ed., 243 F.3d 93, 101 (2d Cir. 2001). We resolve all 6 ambiguities and draw all inferences in favor of the non-moving party. Id. To survive a motion for summary judgment on a First Amendment retaliation claim in 7 8 the public employment context, the plaintiff must present evidence which shows [1] that the 9 speech at issue was protected, [2] that he suffered an adverse employment action, and [3] that 10 there was a causal connection between the protected speech and the adverse employment 11 action. Cotarelo v. Vill. of Sleepy Hollow Police Dep t, 460 F.3d 247, 251 (2d Cir. 2006) 12 (quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000)).5 If a plaintiff 13 establishes these three factors, the defendant has the opportunity to show by a preponderance of 14 the evidence that it would have taken the same adverse employment action even in the absence 15 of the protected conduct. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (internal quotation 16 marks omitted); see also Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 780-81 17 (2d Cir. 1991) (noting that a retaliation claim requires that the adverse action would not have 18 occurred but for the employee s protected actions ). Since courts do not themselves weigh 19 evidence at the summary judgment stage, this standard requires us to determine whether any 5 Other cases have phrased this inquiry as (1) whether the employee spoke as a citizen on a matter of public concern and, if so, (2) whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)); see also Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011) (same). This alternative phrasing divides the same inquiry into different segments, with the protected status of the speech forming one part and the justification, or lack thereof, for adverse action forming the other. The overarching objectives, however, remain the same: to ensure that [s]o long as employees are speaking as citizens about matters of public concern, they . . . face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Garcetti, 547 U.S. at 419. 6 1 reasonable trier of fact would have to conclude that the evidence was so strongly in the 2 defendant s favor that there remained no genuine issue of material fact for it to resolve. See 3 Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 558 (2d Cir. 4 2001) ( The function of the district court in considering the motion for summary judgment is. . . 5 only to determine whether there is a genuine issue to be tried. ) (quoting Vital v. Interfaith Med. 6 Ctr., 168 F.3d 615, 622 (2d Cir. 1999)). In the present case, Appellees do not dispute that the decisions not to recommend Nagle 7 8 for tenure and to recommend the termination of her probationary employment were adverse 9 employment actions. We must therefore determine whether Nagle s speech was protected under 10 the First Amendment and, if so, whether the evidence presented was sufficient to give rise to an 11 inference of causality. We then examine the record to determine whether Appellees have 12 shown as a matter of law that they would have taken the same action in the absence of 13 Nagle s speech, thereby rebutting the requisite causality. Finally, we address whether Castar and 14 Fried are entitled to qualified immunity from Nagle s suit and whether the District may be 15 subject to municipal liability. 16 I. First Amendment Claims 17 A. 18 First Amendment Protections for Public Employees [W]hile the government enjoys significantly greater latitude when it acts in its capacity 19 as employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from 20 punishing its employees in retaliation for the content of their protected speech. Reuland v. 21 Hynes, 460 F.3d 409, 415 (2d Cir. 2006) (quoting Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 22 2001)). Recognizing both that public employees do not relinquish the First Amendment rights 23 they would otherwise enjoy as citizens simply because of their public employment, Pickering v. 7 1 Bd. of Educ., 391 U.S. 563, 568 (1968), and that government offices could not function if every 2 employment decision became a constitutional matter, Connick v. Myers, 461 U.S. 138, 143 3 (1983), courts try to arrive at a balance between the interests of the teacher, as a citizen, in 4 commenting upon matters of public concern and the interest of the State, as an employer, in 5 promoting the efficiency of the public services it performs through its employees. Pickering, 6 391 U.S. at 568. In Pickering, the Supreme Court held that a teacher s exercise of his right to 7 speak on issues of public importance may not furnish the basis for his dismissal from public 8 employment. Id. at 574. In the circumstances of that case, the interest of the school 9 administration in limiting teachers opportunities to contribute to public debate [was] not 10 significantly greater than its interest in limiting a similar contribution by any member of the 11 general public. Id. at 573. 12 As Pickering indicated, for speech to be protected by the First Amendment, it must be 13 on a matter of public concern, which includes speech relating to any matter of political, 14 social, or other concern to the community. Connick, 461 U.S. at 146. In contrast, when a public 15 employee speaks not as a citizen upon matters of public concern, but instead as an employee 16 upon matters only of personal interest, courts should not review the wisdom of a personnel 17 decision taken in response. Id. at 147. This is because the First Amendment does not require a 18 grant of immunity for employee grievances not afforded . . . to those who do not work for the 19 State ; it merely ensure[s] that citizens are not deprived of fundamental rights by virtue of 20 working for the government. Id. To determine [w]hether an employee s speech addresses a 21 matter of public concern, courts look to the content, form, and context of a given statement, as 22 revealed by the whole record. Id. at 147-48. 8 More recently, the Supreme Court has held that First Amendment protection applies only 1 2 when the public employee speaks as a citizen and not in her role as employee. Statements made 3 pursuant to official duties are not protected. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). 4 Restricting speech that owes its existence to a public employee s professional responsibilities 5 does not infringe any liberties the employee might have enjoyed as a private citizen. It simply 6 reflects the exercise of employer control over [speech] the employer itself has commissioned or 7 created. Id. at 421-22. Our Court has explained that, even if a public employee s speech is not required by, or 8 9 included in, [his] job description, or [made] in response to a request by the employer, he speaks 10 as an employee and not as a citizen if the speech is part-and-parcel of his concerns about his 11 ability to properly execute his duties. Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 12 2010) (quoting Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007)). 13 Weintraub held that the filing of a union grievance by a teacher, regarding school administrators 14 handling of discipline problems in his classroom, was not protected because it implicated the 15 teacher s core duties of maintaining class discipline. Id. at 198. 16 B. 17 First Amendment Protection for Nagle s Expressive Conduct In applying these principles to Nagle s complaints of forgery, we need go no further than 18 the public-concern prong of analysis, because, like the district court, we conclude that Nagle 19 fails, as a matter of law, to satisfy this requirement. As to Nagle s report of abuse, defendants 20 conceded in the district court that these statements would have enjoyed First Amendment 21 protection when uttered had Nagle not violated school protocols, and they do not argue otherwise 22 here. Thus, we need not pursue the question of whether the reports could claim First Amendment 23 protection, except insofar as the district court ruled that First Amendment protection for these 9 1 statements was lost because of (1) non-compliance with employer protocols, and (2) the passage 2 of time and distance between their utterance in Virginia and the complained-of adverse 3 employment action in New York. After analyzing the relevant considerations, we determine that, 4 for the reasons stated below, the New York forgery accusation was not protected speech, but that 5 the Virginia abuse report is. 6 1. The Forgery Incident 7 Nagle argues that any personal interest she may have had in speaking about the forgery 8 incident does not do away with whatever First Amendment protection the speech is entitled to. 9 We agree that the primary question for First Amendment purposes is whether the matter is of 10 public concern, not whether the speech was also made to serve some private interest. Cf. 11 Reuland, 460 F.3d at 415 (holding that the absence of a motivating desire to address a matter of 12 public concern was not dispositive as to whether [the] speech addressed a matter of public 13 concern ). Nagle further argues that the fact that the forgery was not considered criminal activity 14 by the police does not by itself negate First Amendment protection. We, similarly, do not doubt 15 that non-criminal activities may also be . . . matters of public concern. Cioffi v. Averill Park 16 Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 164 (2d Cir. 2006). 17 Accordingly, we believe that the district court erred in its conclusion that because Nagle s 18 speech about the forgery was not focused on the public welfare but was instead advanc[ing] 19 some . . . personal agenda, that speech necessarily was not protected. Order at 19. The court 20 below also erred in stating that because no authority . . . would treat the events at issue as a 21 crime, the speech could not be of public concern. Id. at 16. The district court s reasoning 22 contradicts Reuland s holding that motivation is not dispositive and Cioffi s conclusion that 23 matters of public concern need not involve crimes. 10 1 Nevertheless, we conclude that the forgery incident did not implicate a matter of public 2 concern. No authority supports Nagle s argument that reporting an alleged crime always 3 implicates matters of public concern. The forgery of Nagle s signature, even if such conduct 4 were criminal, had no practical significance to the general public. As Nagle well understood, her 5 signature did not indicate agreement with the document or have any other effect beyond 6 confirming its receipt which is not disputed. Viewed in the light most favorable to Nagle, the 7 evidence suggests (a) that Assistant Principal Marron forged Nagle s signature on the document, 8 (b) that Marron then denied having done so, and (c) that Marron did this even though Nagle s 9 signature had no bearing on the report s efficacy. Although Nagle s own desire to get to the 10 bottom of this puzzling situation is understandable, Nagle does not claim that the forgery 11 revealed an ongoing pattern of conduct or even a particularly important instance of bad judgment 12 on Marron s part that might have elevated the forgery to a matter of public concern. We 13 therefore affirm, albeit on different grounds, the district court s holding that Nagle s speech 14 related to the alleged forgery was not protected under the First Amendment. 15 16 17 2. The Abuse Report a. Protocol Violations Defendants conceded below that Nagle s report of abuse in Virginia raised a matter of 18 public concern, but the district court concluded that the report was not protected when uttered 19 because it undisputedly violated reasonable protocols. Order at 13. We doubt that this question 20 could be decided as a matter of law on the present record, which indicates that Nagle may well 21 have followed school procedures by reporting to her principal the verbal abuse that she had 22 overheard. Some time later after Moore had already left Nagle s school Nagle informed both 23 Child Protective Services and the state police of what she had personally overheard and what 11 1 others had told her. It is not clear from the record that Nagle s conduct in these circumstances 2 violated any protocols. This lack of factual clarity does not matter, because the district court s reasoning finds no 3 4 support in Second Circuit or Supreme Court case law, which has never conditioned First 5 Amendment protection on adherence to employer protocols. An employee s failure to follow 6 protocols may give rise to an alternative, non-retaliatory ground for an adverse employment 7 action. And as such, it could be the basis of a successful causation defense. That possibility, 8 which is discussed infra, is very different from the lower court s holding that failure to abide by 9 rules deprived the speech of First Amendment protections. Here, as it did also with respect to 10 obsolescence, see infra subsection B.2.b., the district court confused a question of causation 11 with the very different question of whether speech is protected. In sum, neither the record nor the law permitted the district court to find that Nagle s 12 13 Virginia speech lost its First Amendment protection because of protocol violations. Defendants 14 conceded below that Nagle s report of abuse would have been protected when uttered but for the 15 alleged protocol violation. We therefore need only consider defendants remaining argument that 16 the report lost its First Amendment protection due to obsolescence. b. 17 Obsolescence of First Amendment Protection The district court held that Nagle s Virginia speech presented a transferred speech 18 19 scenario. Order at 10.6 This, it said, required the court to determine not only whether Nagle s 20 report of abuse was protected when originally uttered in Virginia, but also, separately, whether 21 it remained protected after the passage of time and [Nagle s] relocation to a new community. 22 Id. at 10-11. The court concluded that, even had Nagle s Virginia speech been protected when it 6 Although the district court put transferred speech in quotation marks, we have been unable to locate the term in any other federal or state court decision. 12 1 was first made, it had become old news by the time of the events at issue in this lawsuit. It 2 would therefore have lost, in New York, any First Amendment protection it might have had in 3 Virginia. Order at 16. The district court cited no authority for its conclusion that the situation 4 required two separate determinations with respect to First Amendment protection.7 This novel 5 approach is neither necessary nor warranted by First Amendment law. The district court appears to have confused the first prong of the First Amendment 6 7 inquiry, which asks whether the speech at issue was protected, with the last, which examines 8 whether the protected speech caused the adverse employment action. Whether speech pertained 9 to a matter of public concern and whether it was uttered in the speaker s capacity as a private 10 person are not facts that change over time. A teacher s expressive conduct made in the course of 11 working for a candidate s political campaign, for instance, would constitute protected speech 12 even if the candidate lost and his candidacy therefore ceased being a matter of immediate public 13 concern. And the speech would remain protected if the teacher moved to an area where the 14 candidate had not been on the ballot. The First Amendment protects precisely such public 15 participation, both at the time it occurs and ever after. 16 What can grow stale, over time and distance, is not an expressive act s First Amendment 17 protection but its relevance to the plaintiff s employers. To establish causation, a plaintiff must 18 show that the protected speech was a substantial motivating factor in the adverse employment 19 action. Cioffi, 444 F.3d at 167 (quoting Morris, 196 F.3d at 110). It is quite plausible that an 7 The district court did cite Ashcroft v. ACLU, 535 U.S. 564 (2002), in support of its conclusion that, just as community standards play a role in determining what constitutes obscenity, time and place must play a role in deciding what constitutes a matter of public concern. Order at 15. Time and place, the court argues, must play a role because the scope of public concern, like the standards of decency [in obscenity cases], might differ significantly from one community and/or era to another. Id. The court cited no authority for its assumption that the community that defines standards of decency in criminal obscenity cases has anything to do with the public who defines speech to be of public concern in First Amendment retaliation cases. Additionally, Ashcroft assumed that what constituted community standards was a fact question to be decided by a jury, a conclusion that would have precluded summary judgment in the present case in any event. See Ashcroft, 535 U.S. at 574. 13 1 employer would simply have no interest, or lose any interest it once had, in an employee s long- 2 ago protected speech. Speech that did not matter to an employer would likely not be a motivating 3 factor in an employment action. And we may assume that this is what the district court meant 4 when it made the factual determination that Nagle s actions would have been old news and of 5 limited interest to Appellees. Order at 16. But that says nothing about whether the speech was 6 protected. The inquiry into causation is legally, as well as logically, distinct from the question of 7 whether the speech was protected to begin with and must be kept separate from that preliminary 8 question. 9 c. Causation 10 The district court concluded that Nagle s speech could not have caused the adverse 11 employment action because Fried had already decided not to recommend her for tenure before he 12 learned of her Virginia speech: [a]lthough Superintendent Fried cannot recall exactly when he 13 became aware of [Nagle s protected speech in Virginia], he believes he was, at the time, already 14 leaning toward not recommending [Nagle] for tenure. Order at 20. This testimony, however, by 15 itself, indicates that a grant of summary judgment against Nagle is reversible error. 16 First, it is established that an adverse employment action occurs on the date that a 17 decision was formally reached. Cioffi, 444 F.3d at 163 (holding that an adverse employment 18 action dated not from a closed meeting at which an informal consensus regarding the matter 19 was reached, but rather from an official meeting with a formal vote and a publicly declared 20 outcome). Events leading up to a formal decision will, in many situations, be relevant to the 21 analysis of causation. But an employer cannot insulate itself from liability at the summary 22 judgment stage simply by asserting that an adverse employment decision had in fact already been 23 made, without being memorialized or conveyed to anyone, before the employer learned of the 14 1 protected conduct.8 Nagle was informed that she would not be recommended for tenure on 2 March 2, 2007. On the facts of this case, that is the date on which the adverse employment action 3 took place. Second, and as important, Fried did not testify that a decision had already been made, or 4 5 even that a consensus had been reached, not to retain Nagle when the information about the 6 Virginia events reached him in early 2007. All Fried said was that he was leaning that way.9 In 7 such circumstances, a jury would be entitled to find that the Virginia events convinced him to 8 follow his inclinations, and thereby played a part in his ultimate decision. A plaintiff can . . . establish a causal connection to support a . . . retaliation claim by 9 10 showing that the protected activity was closely followed in time by the adverse [employment] 11 action. Gorman-Bakos, 252 F.3d at 554 (alteration in original) (quoting Reed v. A.W. Lawrence 12 & Co., 95 F.3d 1170, 1178 (2d Cir. 1996)); see also Higdon v. Jackson, 393 F.3d 1211, 1220 13 (11th Cir. 2004) (noting that causality can be shown through a close temporal proximity 14 between [the employer s] awareness [of protected conduct] and the adverse action (internal 15 quotation marks and alteration omitted)); Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir. 1994) 16 (per curiam) ( One way of showing causation is by establishing that the employer s knowledge 17 of the protected activity was close in time to the employer s adverse action. ). 8 At any rate, the record evidence the Appellees cite does not support an assertion along these lines. Appellees claim that [i]n January 2007, Fried informed Castar, Assistant Superintendent for Personnel Rosemarie Coletti ¦ and the central staff team of his decision not to recommend the appellant for tenure. Appellees Br. 12. Yet, Fried testified that he d[id]n t recall when he told the others of his decision. Coletti testified that Fried indicat[ed] . . . . he was . . . thinking about what his decision was going to be at a meeting in January, but informed her in another conversation . . . that he . . . had decided that he would not be granting Ms. Nagle tenure. She did not state when this other conversation took place. 9 Fried s full testimony was first that in January 2007 he was very, very concerned and was heavily leaning toward not granting [Nagle] tenure and that it was very doubtful that I was going to be looking to grant [Nagle] tenure. He later said he had in fact made the decision that [Nagle] would not receive tenure by that time. A jury could, of course, believe the first rather than the second statement. And this is so apart from the evidence, produced by Appellees themselves, infra n.12 and accompanying text, that their mischaracterization of Nagle s Virginia acts as violating protocol did in fact affect their decision. 15 Fried testified that he became aware of Nagle s report of abuse in Virginia in late 1 2 January or February of 2007, that is, at most six weeks before the adverse employment action 3 on March 2, 2007. While we have not drawn a bright line defining the maximum time period 4 that can give rise to an inference of causation, Gorman-Bakos, 252 F.3d at 554, six weeks fits 5 comfortably within any line we might draw. It follows that Nagle s showing of temporal 6 proximity suffices to make out a prima facie claim of retaliation under the First Amendment. Appellees counter that, to the extent Nagle s Virginia speech influenced them, it was not 7 8 the content of that speech that mattered but what they took to be Nagle s violation of school rules 9 in reporting the abuse to the police rather than to her principal. But on the question of whether 10 protected speech played a significant part of the decision to dismiss Nagle, this counter, if 11 anything, is evidence against Appellees position. Just what Appellees believed about Nagle s 12 conduct in Virginia, and how, if at all, those beliefs influenced their actions may well be issues 13 critical to resolving this case.10 That these questions turn on unresolved factual disputes, 14 however, precludes summary judgment. 15 Appellees characterize Castar and Fried s understanding of Nagle s Virginia speech as 16 mirror[ing] Castar s experience with [Nagle s] failing to follow . . . District[] protocol on two 17 occasions in New York, a claim they rest on two specific events. Appellees Br. 29. The factual 18 bases Appellees present, however, are insufficient to dispose of the question at summary 19 judgment. On one cited occasion, Nagle chose a particular book to read with her class without 20 first consulting the school psychologist, Barbara Merling. Beyond stating that Merling believed 21 that [Nagle] should have consulted with her, however, Appellees have provided no evidence 10 Because Castar and Fried did not recall exactly what sources about Nagle they had seen, there is uncertainty as to whether they knew that Nagle had first reported her concerns to her principal in Virginia, and a jury could find that they did. If Castar and Fried did know that Nagle had followed whatever inside reporting rules existed in Virginia, and had only then gone to the police and the Department of Child Protective Services, then Appellees characterization of what Nagle did which they concede may have caused them to dismiss her as a rule violation was both wrong and unreasonable. 16 1 that school customs or protocols required such a consultation. On the second occasion, Nagle did 2 not confer with administrative staff before sending a child home from school early. But Principal 3 Castar himself testified that Nagle s decision to send a child home early without speaking to 4 administrators did not violate any existing rules, protocols, or customs at the school. While, with 5 further factual development, a jury could conceivably conclude that these events caused 6 Appellees in good faith to question Nagle s judgment and her amenability to supervision, 7 Appellees have not presented sufficient evidence to dispose of this question at summary 8 judgment. d. 9 Same Decision Defense Because protected speech could not substantially cause an adverse action if the employer 10 11 would have taken that action in any event, a defendant can rebut a prima facie showing of 12 retaliation by demonstrating by a preponderance of the evidence that it would have taken the 13 same adverse employment action even in the absence of the protected conduct. Morris, 196 14 F.3d at 110 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 15 (1977)). Under this standard, at this stage of the proceedings, Appellees are entitled to summary 16 judgment if they can show that a reasonable jury would have to find by a preponderance of the 17 evidence that Appellees would have dismissed Nagle even had they not learned of her Virginia 18 speech. 19 Appellees specifically point to Cosgrove v. Federal Home Loan Bank of New York, Nos. 20 90-civ-6455 (RPP), 92-civ-4225 (RPP), 1999 WL 163218 (S.D.N.Y. Mar. 23, 1999), as directly 21 analogous to the present case. In Cosgrove, a bank examiner claimed her employer had 22 impermissibly fired her for reporting to the FBI improper lending practices that the examiner had 23 discovered in an investigation. The plaintiff in that case had received numerous indications 17 1 (several memoranda, evaluations, and warnings per year) that her work failed to meet her 2 employer s standards and that her interpersonal skills were interfering with her job performance. 3 Id. at *12-*14. The district court concluded in Cosgrove that, although the plaintiff s FBI report 4 may have constituted protected speech, the plentiful documentation of her ongoing problems 5 showed as a matter of law that her employer would have fired her irrespective of the FBI report. 6 Id. at *15. 7 Unlike Cosgrove, however, Appellees themselves have characterized evaluations of 8 Nagle during her probationary period as ranging from fair to positive. Fried testified that 9 official in-classroom observations [of Nagle] were positive. Also in contrast to the plaintiff in 10 Cosgrove, Nagle had not received years of warnings about problems with her interpersonal 11 skills. On the contrary, Castar testified that, besides a complaint from the school psychologist 12 regarding Nagle s choice of a particular book to read with her class, [t]here weren t complaints 13 about Nagle. He further testified that, as the school implemented a new teaching model that 14 integrated special education students into the mainstream student population, other teachers told 15 [him] that they would not teach in this program unless [Nagle] was the special ed teacher there. 16 Defendants have, in sum, provided no evidence of ongoing problems with Nagle s work or work 17 relationships of the sort documented in Cosgrove. 18 According to Fried s testimony, his decision not to recommend Nagle for tenure rested 19 not on an accumulation of negative evaluations and problems but on what he heard from third 20 parties about Nagle s behavior at a single meeting in December 2006. At that meeting, Nagle had 21 intimated that she knew she would not be granted tenure and had become so upset that she cried 22 and left the room for a while to calm down. At one point and in tension with some of the other 23 testimony regarding the effect of the Virginia events Fried testified that he came to the 18 1 conclusion that [Nagle] should not receive tenure because of her behavior at the meeting. Fried 2 did not himself attend this meeting but learned of it from conversations with Castar and Esposito. Viewing this record in the light most favorable to Nagle, we cannot find as a matter of 3 4 law that Fried would have made his decision irrespective of learning of Nagle s report of abuse 5 in Virginia. There was no pattern of bad evaluations, complaints, and warnings, as there was in 6 Cosgrove. There was no specific instance of misconduct. All this is in direct contrast with most 7 of the cases Appellees cite to support their position. Moreover, there is no documentation of 8 Fried s decision-making process prior to learning of Nagle s Virginia speech. While it is 9 certainly possible that an employee s behavior at a single meeting can be so egregious as to merit 10 dismissal, we do not think that crying and leaving the room to calm down suffices, as a matter of 11 law, to overcome a prima facie showing of retaliation. The record raises genuine issues of 12 material fact as to why Appellees acted as they did, and [s]ummary judgment is precluded 13 where questions regarding an employer s motive predominate in the inquiry regarding how 14 important a role the protected speech played in the adverse employment decision. Morris, 196 15 F.3d at 110.11 16 II. Limitations on Liability Nagle s successful presentation of a prima facie claim and Appellees proffer of a 17 18 rebuttal that is subject to credibility questions do not, however, fully resolve this appeal. We 19 must also determine whether each of the particular Appellees may be held liable for the acts 20 alleged. Specifically, we must examine (1) whether Castar and Fried are entitled to qualified 11 Appellees additionally state that any speech protections Nagle might have enjoyed were outweighed by the employer s interest in maintaining an efficient and disrupti[on] free workplace. An employer can avoid liability for retaliation if it shows that it reasonably predicted that the plaintiff s speech would be disruptive, the disruptive potential outweighed the value of the speech, and the adverse employment action was taken not in retaliation but to prevent disruption. See Anemone, 629 F.3d at 115. Appellees, however, have not attempted to show any of these facts. Moreover, this argument was not raised below, and is therefore forfeited. Order at 9 (noting that defendants have not asserted the potential disruption defense ). 19 1 immunity from Nagle s suit, and (2) whether the District is subject to municipal liability in the 2 circumstances of this case. 3 A. Qualified Immunity Although the statutory text of § 1983 provides for no immunities, it has been read in 4 5 harmony with general principles of tort immunities to provide qualified immunity for most 6 government officials.12 Malley v. Briggs, 475 U.S. 335, 339 (1986) (quoting Imbler v. Pachtman, 7 424 U.S. 409, 418 (1976)). Qualified immunity is an entitlement not to stand trial or face the 8 other burdens of litigation. Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. 9 Forsyth, 472 U.S. 511, 526 (1985)), modified by Pearson v. Callahan, 555 U.S. 223 (2009). It 10 protects government officials from liability for civil damages insofar as their conduct does not 11 violate clearly established statutory or constitutional rights of which a reasonable person would 12 have known. Pearson, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 13 (1982)). Qualified immunity balances two important interests the need to hold public officials 14 accountable when they exercise power irresponsibly and the need to shield officials from 15 harassment, distraction, and liability when they perform their duties reasonably. Id. 16 In the present case, the district court granted Fried and Castar immunity. Having 17 determined that neither instance of Nagle s expressive conduct was protected, and certainly was 18 not clearly so, the court necessarily concluded that a reasonable official would not have been 19 on notice that considering such conduct in reaching an adverse employment decision violated 20 Nagle s rights. Order at 22. Because we hold that one of Nagle s acts of expressive conduct was 12 The statute provides, in pertinent part, that [e]very person who, under color of any statute . . . of any State . . . , subjects, or causes to be subjected, any . . . person within the jurisdiction [of the United States] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. 20 1 protected, we must revisit the district court s decision on qualified immunity. We conclude that 2 neither Fried nor Castar have such immunity. 3 Qualified immunity depends on whether, [t]aken in the light most favorable to the party 4 asserting the injury, . . . the facts alleged show the [official s] conduct violated a . . . right, and, 5 if so, whether that right was clearly established at the time of the events at issue. Saucier, 533 6 U.S. at 201. As indicated previously, we have no difficulty in concluding that, taking Nagle s 7 allegations as true and resolving all ambiguities and drawing all inferences in her favor, the facts 8 she alleges, if proved, constituted a violation of her right not to experience an adverse 9 employment action in retaliation for speaking as a private person on a matter of public concern. 10 We therefore turn to the other prong of the test. 11 The relevant, dispositive inquiry in determining whether a right is clearly established is 12 whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation 13 he confronted. Id. at 202. This standard requires the level of generality at which the relevant 14 legal rule is . . . identified to strike the appropriate balance . . . between the interests in 15 vindication of [private persons ] constitutional rights and in public officials effective 16 performance of their duties. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal 17 quotation marks omitted). That level of generality must allow officials reasonably [to] 18 anticipate when their conduct may give rise to liability. Id. at 646 (alteration in original) 19 (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). Describing the right at issue overly 20 broadly eviscerates the protections of qualified immunity; describing it too narrowly negates the 21 possibility of redress. The Supreme Court has, therefore, required the rights at issue in such cases 22 to be sufficiently particularized to be relevant to the inquiry: The contours of the right must 21 1 be sufficiently clear that a reasonable official would understand that what he is doing violates 2 that right. Id. at 640. 3 At the same time, the standard must not be so specific that qualified immunity could be 4 overcome only if the very action in question has previously been held unlawful. Id. Rather, 5 the unlawfulness of the alleged action must be apparent to a reasonable official in the light 6 of pre-existing law. Id.; see also Saucier, 533 U.S. at 202 ( If the law did not put the officer on 7 notice that his conduct would be clearly unlawful, summary judgment based on qualified 8 immunity is appropriate. ). 9 The subjective good faith of government officials plays no part in the inquiry. Harlow, 10 457 U.S. at 816. Our inquiry is confined to the objectively ascertainable question whether a 11 reasonably well-trained [official] would have known that [his conduct] was illegal. Malley, 475 12 U.S. at 345 (internal quotation marks omitted). Implicit in the idea that officials have some 13 immunity . . . is a recognition that they may err and a determination that it is better to risk 14 some error . . . than not to . . . act at all. Scheuer v. Rhodes, 416 U.S. 232, 242 (1974), 15 abrogated by Harlow, 457 U.S. 800 (1982). The objective inquiry allows room for error by 16 guaranteeing officials immunity for reasonable mistakes as to the legality of their actions, 17 Saucier, 533 U.S. at 206, but not for unreasonable mistakes, which should be prevented by an 18 official s knowledge of the law governing his conduct, Harlow, 457 U.S. at 819. The 19 reasonableness of the official s action, in turn, is assessed in light of the legal rules that were 20 clearly established at the time [the action] was taken. Anderson, 483 U.S. at 639 (internal 21 quotation marks and citation omitted). The focus therefore remains on whether, at the time of the 22 alleged conduct, the right was clearly established, rendering it objectively unreasonable for an 23 official to think that his action was lawful. See Okin v. Vill. of Cornwall-on-Hudson Police 22 1 Dep t, 577 F.3d 415, 433 n.11 (2d Cir. 2009) (noting that an official who violates clearly 2 established law necessarily lacks an objectively reasonable belief that his conduct was lawful ); 3 Locurto, 264 F.3d at 169 ( [I]t can never be objectively reasonable for a governmental official to 4 act with the intent that is prohibited by law. ). In the present case, Appellees do not argue that Nagle did not have a clearly established 5 6 right not to suffer adverse employment actions in retaliation for her protected speech. Rather, 7 they argue that it is not clearly established that speech protected at one time remains protected 8 when discovered years later in a geographically remote community. 13 Appellees cite no cases 9 suggesting that First Amendment protection wanes over time. More importantly, they point to no 10 basis on which a reasonable official might conclude that it would so wane, thereby permitting the 11 official to retaliate for the speech. As we have previously observed, there are material questions 12 of fact in this case as to whether the complained-of tenure decision was made in retaliation for 13 Nagle s speech. But assuming, as we must, that this causation question is decided against 14 Appellees at trial, no reasonable official could think that such speech-retaliatory conduct was 15 constitutionally permissible based simply on the passage of time. Insofar as Appellees mean to 16 rest on the cases cited by the district court in its discussion of this issue, we note that none of 17 those cases held, or even supported the conclusion, that First Amendment protection deteriorates 13 Appellees also contend that Nagle has failed to show improper motive. To the extent Appellees reference motive as indicative of causation, we have already explained that material questions of fact preclude resolution of the causation issue as a matter of law. Otherwise, as we have also explained, subjective motive plays no part in the qualified immunity inquiry. To the extent that Appellees argue otherwise on the basis of Blue v. Koren, 72 F.3d 1075 (2d Cir. 1995), they misconstrue that decision s discussion of motive. Blue concluded that, where a constitutional claim contains a subjective component, id. at 1082, a conclusory proffer of an unconstitutional motive should not defeat the motion for summary judgment if the court determines that the conduct was objectively reasonable. Id. at 1084. Because [t]he reasonableness of the conduct is itself substantial evidence in support of the motion for summary judgment, a plaintiff in such a situation may be required to allege more specific facts about the official s motivation. Id. But subjective intent has no role in the initial determination of whether the conduct was objectively reasonable. 23 1 over time and space. On the contrary, every case the district court cited held or assumed that 2 earlier expressive acts could give rise to a claim of retaliation. It is true that no case in our Circuit has specifically held that First Amendment protection 3 4 does not grow weaker over time and space. But as the Supreme Court has explained, the very 5 action in question need not have been the subject of a holding in order for a right to be clearly 6 established. Anderson, 483 U.S. at 640. If the contours of the right [are] sufficiently clear, id., 7 then officials can still be on notice that their conduct violates established law even in novel 8 factual circumstances, Hope v. Pelzer, 536 U.S. 730, 741 (2002). Fried and Castar knew or should have known that retaliation for protected speech would 9 10 violate an employee s First Amendment rights, and they had no reason to think that speech 11 protected in Virginia in 2004 would not be protected in New York in 2007. We therefore hold 12 that, based on the record on appeal, neither Fried nor Castar are subject to qualified immunity 13 from Nagle s suit.14 14 B. Municipal Liability The parties did not brief, and the district court did not determine, the availability of a § 15 16 1983 suit against the District under the circumstances of this case. Municipal entities, including 17 school districts, are persons within the meaning of § 1983 and therefore subject to suit under 18 that provision. Monell v. Dep t of Soc. Serv. of City of New York, 436 U.S. 658, 663 (1978); Back 19 v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 128 (2d Cir. 2004). But 20 municipalities are not liable on a respondeat superior theory, simply because an employee 21 committed a tort. Monell, 436 U.S. at 691. Section 1983 distinguish[es] acts of the municipality 14 Since there is no basis in the record for finding that there was a protocol violation, we need not decide whether, if there were such a violation, that violation would become a basis for a qualified immunity defense. 24 1 from acts of employees of the municipality, and imposes liability only for action for which the 2 municipality is actually responsible. Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). 3 The municipality is responsible if a violation of rights resulted from the government s 4 policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be 5 said to represent official policy. Monell, 436 U.S. at 694. When an official has final authority 6 over significant matters involving the exercise of discretion, the choices he makes represent 7 government policy. Clue v. Johnson, 179 F.3d 57, 62 (2d Cir. 1999) (quoting Rookard v. 8 Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)). Because of this, municipal liability 9 may be imposed for a single decision by municipal policymakers. Pembaur, 475 U.S. at 480. 10 [W]hether an official had final policymaking authority is a question of state law. Id. at 483 11 (plurality opinion); see also Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 737 (1989). 12 Under New York law, boards of education or trustees of common school districts appoint 13 teachers upon the recommendation of the superintendent of schools, for a probationary period 14 of three years. N.Y. Educ. Law § 3012(1)(a). This probationary period may be discontinued at 15 any time . . . on the recommendation of the superintendent of schools, by a majority vote of the 16 board of education or the trustees of a common school district. Id. At the end of the 17 probationary term, the superintendent of schools shall make a written report to the board of 18 education recommending the grant or denial of tenure. Id. § 3012(2). The board or the trustees 19 shall review all recommendations not to appoint a person on tenure. Id. § 3031(a). 20 The District is clearly a final policymaker with respect to a teacher s tenure and 21 employment, and Nagle does not allege that the District acted with intent to violate her rights. 22 Nevertheless, because no potential employee can obtain full school board approval without [the 23 superintendent s] recommendation, Superintendent Fried may himself be deemed the final 25 1 decisionmaker with respect to personnel appointments, because his recommendations are 2 essentially those of the governmental body. Hamilton v. Montgomery Cnty. Bd. of Educ., 122 F. 3 Supp. 2d 1273, 1289 (M.D. Ala. 2000). Additionally, the record suggests that, although Fried technically recommended 4 5 candidates on whom the District board voted, that process was treated largely as a formality. 6 Accordingly, a factfinder could decide that a person whom Fried did not recommend for tenure 7 was effectively denied tenure by that act. Fried himself testified that he had made the decision 8 that [Nagle] would not receive tenure. A jury could conclude from this and similar testimony 9 that the District customarily accepted the superintendent s recommendations against tenure. 10 Some Circuits have held that an employer cannot shield itself from liability . . . by using 11 a purportedly independent person or committee as the decisionmaker where th[at] decisionmaker 12 merely serves as the conduit, vehicle, or rubber stamp by which another achieves his or her 13 unlawful design. Dedmon v. Staley, 315 F.3d 948, 949 n.2 (8th Cir. 2003). Under this so-called 14 cat s paw theory,15 a final decisionmaker that relies entirely on an improperly motivated 15 recommendation from a subordinate may render the municipality liable because the subordinate, 16 although not formally delegated the power to make decisions, acts as the municipality s agent.16 15 The term cat s paw is apparently drawn from a La Fontaine poem (perhaps itself drawn from an Aesop fable) about a monkey who convinces a cat to get chestnuts roasting in a fire. As the cat pushes the chestnuts out one by one, the monkey eats them; the monkey gets the chestnuts while the cat gets only burnt paws. See Staub v. Proctor Hosp., 131 S. Ct. 1186, 1190 n.1 (2011). Today the term cat's paw refers to one used by another to accomplish his purposes. Arendale v. City of Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008) (quoting EEOC v. BCI CocaCola Bottling Co., 450 F.3d 476, 484 (10th Cir. 2006)). 16 The Supreme Court has recently indicated its approval of this approach in a case involving discrimination under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311(c). Staub, 131 S. Ct. at 1194 ( We . . . hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. (footnote omitted)). Staub noted that USERRA is very similar to Title VII. Id. at 1191. In certain circumstances, we have analogized Title VII to § 1983. E.g. Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) ( [T]he analysis for [§ 1983 employment discrimination claims] is similar to that used for employment discrimination claims brought under Title VII . . . . ). 26 1 Moreover, several Circuits have either held or assumed that cat s paw liability would be 2 available under § 1983. See, e.g., Campion, Barrow & Assocs., Inc. v. City of Springfield, Ill., 3 559 F.3d 765, 771 (7th Cir. 2009) ( [E]vidence could support a finding that X (the [City] 4 Council) relied on Y s (the Mayor s or [an alderman s]) intent, making it permissible to base 5 municipal liability on Y s discriminatory animus. ); Arendale v. City of Memphis, 519 F.3d 587, 6 604 n.13 (6th Cir. 2008) ( When an adverse hiring decision is made by a supervisor who lacks 7 impermissible bias, but that supervisor was influenced by another individual who was motivated 8 by such bias, this Court has held that the employer may be held liable under a rubber-stamp or 9 cat s paw theory of liability. ); Dedmon, 315 F.3d at 949 n.2 ( [A]n employer can be liable, 10 under certain circumstances, where the formal decisionmaker is not the person who harbored an 11 unlawful motive to terminate the employee. (emphasis omitted)). But see Hull v. Cuyahoga 12 Valley Joint Vocational Sch. Dist. Bd. of Ed., 926 F.2d 505, 515 (6th Cir. 1991) ( Plaintiff s 13 argument that [the person who recommended his termination] exercises final authority, because 14 the Board allegedly rubber-stamps his recommendations is contrary to P[r]aprotnik s explicit 15 warning not to look beyond where applicable law purports to vest power. (quoting City of St. 16 Louis v. Praprotnik, 485 U.S. 112, 126 (1988) (plurality opinion))). 17 To date, our Circuit has neither accepted nor rejected the cat s paw approach. Since the 18 matter has not been briefed to us, we deem it advisable to remand the question of the District s 19 possible liability to the district court for its decision in the first instance. 20 21 CONCLUSION Because Nagle has made a prima facie showing that retaliation in violation of the First 22 Amendment caused her to be denied tenure; because Appellees rebuttal is subject to credibility 23 questions that cannot be resolved as a matter of law; and because Fried and Castar are not, at this 27 1 stage of the proceedings, entitled to qualified immunity, we VACATE the district court s grant 2 of summary judgment and REMAND for further proceedings in accordance with this opinion. 28
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