Ross v. Lichtenfeld, No. 10-5275 (2d Cir. 2012)
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Defendant, the school district superintendent, appealed from the district court's order denying his motion for summary judgment with regard to plaintiff's claim that she was fired in retaliation for her reports of financial malfeasance. The court concluded that plaintiff, a payroll clerk typist for the school district, was speaking pursuant to her official duties as a public employee and her speech was therefore not protected by the First Amendment. Accordingly, the court held that defendant was entitled to summary judgment.
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10-5275 Ross v. Lichtenfeld 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 August Term 2012 (Submitted: January 17, 2012 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 Decided: September 10, 2012) Docket No. 10-5275-cv -----------------------------------------------------x 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, KATONAHLEWISBORO UNION FREE SCHOOL DISTRICT, KEVIN SHELDON, Defendants, ROBERT LICHTENFELD, Defendant-Appellant. -----------------------------------------------------x B e f o r e : WALKER, LEVAL, and POOLER, Circuit Judges. Defendant-appellant Robert Lichtenfeld appeals from an order 31 of the United States District Court for the Southern District of 32 New York (William G. Young, Judge) denying Lichtenfeld s motion 33 for summary judgment with regard to plaintiff-appellee s claim 1 1 that she was fired in retaliation for her reports of financial 2 malfeasance. 3 pursuant to her official duties as a public employee and her 4 speech was therefore not protected by the First Amendment. 5 Accordingly, we hold that defendant-appellant is entitled to 6 summary judgment. We conclude that plaintiff-appellee was speaking REVERSED. 7 8 9 10 11 12 13 14 15 16 17 JONATHAN LOVETT, Law Office of Jonathan Lovett, Hawthorne, New York, for Plaintiff-Appellee. RONDIENE E. NOVITZ, Cruser, Mitchell & Novitz, LLP, Melville, New York, for Defendant-Appellant. JOHN M. WALKER, JR., Circuit Judge: This appeal requires us to determine whether plaintiff- 18 appellee Risa A. Ross ( Ross ) was speaking pursuant to her 19 official duties as a payroll clerk typist for the Katonah- 20 Lewisboro Union Free School District ( the District ) when she 21 reported financial malfeasance to defendant-appellant Robert 22 Lichtenfeld ( Lichtenfeld ), the District s Superintendent, and 23 to the Katonah-Lewisboro Board of Education ( the Board ). 24 United States District Court for the Southern District of New 25 York (William G. Young, Judge) held that Ross was speaking as a 26 private citizen and that her First Amendment retaliation claim 27 could proceed to trial. 28 complaints were made pursuant to her official duties and We disagree. 2 The We conclude that Ross s 1 therefore were not protected by the First Amendment. See 2 Garcetti v. Ceballos, 547 U.S. 410 (2006). 3 Lichtenfeld is entitled to summary judgment on Ross s First 4 Amendment retaliation claim. Accordingly, 5 6 7 BACKGROUND When reviewing an interlocutory appeal from a denial of a 8 motion for summary judgment, we resolve all factual disputes in 9 favor of the non-movant. Droz v. McCadden, 580 F.3d 106, 108 (2d 10 Cir. 2009). 11 clerk typist. 12 Lichtenfeld was, at all relevant times, the District s 13 Superintendent. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 In 1998, Ross was hired by the District as a payroll Her immediate supervisor was Margaret Taylor. 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. 3 1 Ross Deposition 64-65. 2 current salary of each district employee. 3 Ross s job required her to know the Between May 2003 and July 2006, Ross met with Lichtenfeld on 4 numerous occasions to express concern over payments she believed 5 to be improper. 6 informed Lichtenfeld that Howard Lee Turner, a District 7 courier, had forged his supervisor s signature to obtain 8 additional pay. 9 a supervisor told her to forget about Turner s actions and not At their first meeting in May 2003, Ross Ross played voicemails for Lichtenfeld in which 10 say anything. 11 forgery. 12 action and received compensation for his accrued vacation time 13 and two months of continued health insurance. 14 Lichtenfeld informed the Board of Turner s Turner voluntarily resigned to avoid disciplinary On February 10, 2004, Ross again met with Lichtenfeld to 15 tell him that John Thibdeau, the director of administrative 16 services, was retaliating against her for questioning improper 17 payments he had approved and for an incident involving Lisa Kor. 18 At this meeting, Ross gave Lichtenfeld documentation of some of 19 these disbursements. 20 documentation, he said something to the effect of: Oh, my God. 21 This is worse than the Enron scandal. 22 heads will spin. 23 Ross continued to meet with Lichtenfeld about similar complaints. When Lichtenfeld looked at the If taxpayers find out Ross Deposition 119. 4 Following this meeting, 1 Ross s complaints primarily concerned improper disbursements 2 which she believed were made without the required Board approval 3 based on her review of Board meeting agendas. 4 by Lichtenfeld that Board action people (individuals not under 5 contract who must be annually approved by the Board) were not 6 entitled to overtime. 7 of Board action people who were receiving overtime pay without 8 Board approval. 9 illegal to give out bonuses or performance awards without Board She had been told She approached Lichtenfeld with examples Similarly, Lichtenfeld told Ross that it was 10 approval. 11 bonuses, stipends, at least one longevity payment, and other 12 miscellaneous disbursements all of which she believed were made 13 without the necessary Board approval. 14 Ross complained that Lichtenfeld had spent $500 of District funds 15 to buy chocolates for a gift. 16 Ross complained of numerous performance awards, In a separate incident, In October 2005, the District hired Renee Gargano 17 ( Gargano ) as an outside consultant to help resolve 18 interpersonal problems among the staff. 19 relevant times Deputy Superintendent of the Putnam/Northern 20 Westchester BOCES ( Putnam ), a nearby school district. 21 viewing a list of employees, Gargano recognized Ross s name and 22 informed Lichtenfeld that Ross had previously been employed by 23 Putnam. 24 call when Ross was hired by the District. Gargano was at all Upon Gargano did not recall having received a reference check 5 Further investigation 1 revealed that Ross had failed to list her employment with and 2 termination from Putnam, as well as two other school districts, 3 on her employment application. 4 In January 2006, Ross met with Gargano. Ross told Gargano 5 about the improper payments she had reported to Lichtenfeld and 6 showed her the relevant documentation. 7 documents and said she would discuss the matter with Lichtenfeld. 8 9 Gargano took the On May 23, 2006, Ross was suspended with pay by Kevin Sheldon, the District s Assistant Business Administrator. On 10 July 21, 2006, Ross wrote a letter on her personal stationary to 11 the individual Board members outlining the concerns she had 12 raised to Lichtenfeld. 13 employee of the School District, I am writing to you, . . . 14 President of the Board of Education, on a personal note out of 15 complete frustration with the District s administration. 16 explaining her conversations with Lichtenfeld and noting her 17 frustration with his failure to take what she considered to be 18 appropriate action, she stated that her suspension was in 19 retaliation for reporting financial malfeasance. The letter began: Although I am an 20 After the Board received this letter, it convened an 21 executive session at which Lichtenfeld recommended Ross s 22 termination. 23 learned, however, that Ross had been entitled to a pre- 24 termination hearing. After The Board voted to terminate her. It subsequently It rescinded her termination and initiated 6 1 a disciplinary hearing, which was held on August 24 and 31, 2006, 2 before Hearing Officer Joseph E. Wooley. 3 found that Ross had knowingly made false statements on her 4 application and recommended that she be terminated. 5 19, 2006, the Board voted unanimously to terminate Ross. 6 The Hearing Officer On December Ross filed this amended complaint in March 2007 claiming in 7 relevant part that her termination was a violation of her First 8 Amendment rights. 9 December 6, 2010, the district court granted the motion as to 10 some of Ross s claims, but denied it with regard to her First 11 Amendment retaliation claim. 12 2d 467 (S.D.N.Y. 2010). 13 Lichtenfeld was not entitled to qualified immunity on that claim. 14 Id. at 479. Lichtenfeld moved for summary judgment. On Ross v. Lichtenfeld, 755 F. Supp. The district court concluded that Lichtenfeld appeals. 15 16 17 18 DISCUSSION An interlocutory appeal from a denial of summary judgment is 19 permissible when a district court denies the defendant qualified 20 immunity. 21 756, 760 (2d Cir. 2003). 22 defendant contends that he is entitled to qualified immunity 23 under the plaintiff s version of the facts. 24 argues that we lack jurisdiction because this appeal is based on See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d Such an appeal is allowed only if the 7 Id. at 761. Ross 1 disputed facts, i.e., Lichtenfeld s intent. However, we agree 2 with Lichtenfeld that even under Ross s version of the facts, her 3 complaints are not entitled to First Amendment protection because 4 they were made pursuant to her job duties. 5 jurisdictional argument is without merit. Thus, Ross s 6 We will grant summary judgment if, taking all the facts in 7 the light most favorable to the non-moving party, the defendant 8 was entitled to qualified immunity as a matter of law. 9 760-61. Id. at In general, qualified immunity shields government 10 officials performing discretionary functions . . . from liability 11 for civil damages insofar as their conduct does not violate 12 clearly established statutory or constitutional rights of which a 13 reasonable person would have known. 14 U.S. 800, 818 (1982). 15 either of two questions: 16 deprivation of an actual constitutional right, or whether the 17 right was clearly established at the time of the incident. 18 Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). 19 answer to either question requires judgment for the defendant. 20 See id. at 245; Costello v. City of Burlington, 632 F.3d 41, 51 21 (2d Cir. 2011) (Pooler, J., concurring). 22 concluded that Ross had presented sufficient evidence that 23 Lichtenfeld violated her clearly established First Amendment 24 right to freedom of speech. Harlow v. Fitzgerald, 457 The qualified immunity inquiry can turn on whether the complaint alleges the See A no The district court We disagree and hold that, because 8 1 Ross was speaking pursuant to her official duties and not as a 2 private citizen, her speech was not protected by the First 3 Amendment. 4 violation of a constitutional right, it is clear a fortiori that 5 the right was not clearly established at the time of the 6 incident. 7 Because we find that the complaint does not allege a In the First Amendment context, the State has interests as 8 an employer in regulating the speech of its employees that differ 9 significantly from those it possesses in connection with 10 regulation of the speech of the citizenry in general. Pickering 11 v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 12 391 U.S. 563, 568 (1968). 13 protected by the First Amendment only when the employee is 14 speaking as a citizen . . . on a matter of public concern. 15 Piscottano v. Murphy, 511 F.3d 247, 269-70 (2d Cir. 2007). 16 Garcetti v. Ceballos, the Supreme Court held that when public 17 employees make statements pursuant to their official duties, the 18 employees are not speaking as citizens for First Amendment 19 purposes, and the Constitution does not insulate their 20 communications from employer discipline. 21 is the case even when the subject of an employee s speech is a 22 matter of public concern. 23 (2d Cir. 2011); Anemone v. Metro. Transp. Auth., 629 F.3d 97, 24 115-16 (2d Cir. 2011). Speech by a public employee is 547 U.S. at 421. In This Jackler v. Byrne, 658 F.3d 225, 237 Therefore, if, as a matter of law, Ross 9 1 was speaking pursuant to her official duties, Lichtenfeld is 2 entitled to summary judgment. 3 In Garcetti, the plaintiff, Richard Ceballos, who was a 4 deputy district attorney, was asked by a defense attorney to 5 review an affidavit that had been used to obtain a search 6 warrant. 7 the affidavit. 8 wrote a disposition memo recommending that the charges be 9 dismissed. Ceballos discovered significant misrepresentations in He informed his supervisors of his discovery and He claimed that he was subsequently subjected to 10 retaliatory employment action. 11 Court determined that he had not been speaking as a citizen when 12 he told his supervisors about the problems with the affidavit: 13 The controlling factor in Ceballos case is that his expressions 14 were made pursuant to his duties as a calendar deputy. . . . 15 Ceballos spoke as a prosecutor fulfilling a responsibility to 16 advise his supervisor about how best to proceed with a pending 17 case . . . . 18 disposition memo because that is part of what he, as a calendar 19 deputy, was employed to do. 20 Id. at 421. 547 U.S. at 413-15. The Supreme In short, Ceballos wrote his Id. The Court further observed that [r]estricting speech that 21 owes its existence to a public employee s professional 22 responsibilities does not infringe any liberties the employee 23 might have enjoyed as a private citizen. 24 Instead, [i]t simply reflects the exercise of employer control 10 Id. at 421-22. 1 over what the employer itself has commissioned or created. 2 at 422. 3 Id. In Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir. 2010), 4 we addressed the applicability of Garcetti to a teacher s 5 complaints about his school administration s failure to 6 discipline a disruptive student. 7 to punish a student in Weintraub s class for throwing a book on 8 two separate occasions, Weintraub told his supervisor and co- 9 workers that he intended to file an employee grievance with his After the administration failed 10 union, and thereafter filed the grievance. Weintraub, 593 F.3d 11 at 198-99. 12 pursuant to his official duties because they were not required by 13 his job description, school policy, or other relevant 14 regulations. 15 that under the First Amendment, speech can be pursuant to a 16 public employee s official job duties even though it is not 17 required by, or included in, the employee s job description, or 18 in response to a request by the employer. 19 emphasized that the inquiry into whether speech was made pursuant 20 to an employee s official duties is a practical one, id. at 21 202 (quoting Garcetti, 547 U.S. at 424), focused on whether the 22 speech was part-and-parcel of his concerns about his ability to 23 properly execute his duties. 24 (internal quotation marks omitted). Weintraub argued that his complaints were not made Id. at 201-02. We rejected this argument, holding Id. at 203. We Weintraub, 593 F.3d at 203 11 We further noted that 1 Weintraub s speech took the form of an employee grievance, an 2 avenue unavailable to private citizens. 3 the lack of a citizen analogue is not dispositive in this case, 4 it does bear on the perspective of the speaker - whether the 5 public employee is speaking as a citizen . . . . (internal 6 citation and quotation marks omitted)). Id. at 203-04 ( Although 7 The inquiry into whether a public employee is speaking 8 pursuant to her official duties is not susceptible to a bright- 9 line rule. Courts must examine the nature of the plaintiff s job 10 responsibilities, the nature of the speech, and the relationship 11 between the two. 12 such as whether the complaint was also conveyed to the public, 13 may properly influence a court s decision. 14 See id. at 201-02. Other contextual factors, See id. at 205. In this case, Ross alleges three instances of protected 15 speech: her reports to Lichtenfeld about improper payments and 16 promotions, her statements to Gargano about the same issues, and 17 her letter to the Board members. 18 that the statements to Gargano were not protected because they 19 were in the nature of an employee grievance, but that Ross s 20 statements to Lichtenfeld and her letter to the Board were 21 entitled to First Amendment protection because in those 22 instances, in the district court s view, she was speaking on a 23 matter of public concern, she went outside the chain of command, 24 and her complaints were not in the nature of an employee The district court concluded 12 1 grievance. 2 contends that, although Ross s speech was on a matter of public 3 concern, it was made pursuant to her duties as a payroll clerk 4 typist and is therefore not protected by the First Amendment. 5 agree. 6 Ross, 755 F. Supp. 2d at 474-75. Lichtenfeld We Ross testified that her job duties included processing the 7 payroll and making sure pay rates were correct. She stated that 8 if there was a mistake with a pay requisition, her duty was to 9 bring[] it to the appropriate person s attention. Ross 10 Deposition 64. She specifically noted that she brought many such 11 requisitions to Lichtenfeld s attention. 12 learned that overtime for Board action people and performance 13 bonuses without Board approval the cause of most of her 14 individualized complaints were improper because she was told so 15 by Lichtenfeld and her supervisor. 16 further stated that she was not able to balance out the payroll 17 without knowing whether certain payments had been approved by the 18 Board. 19 of her role in the District s payroll system, noting that 20 descriptions of her job consistently refer to it as clerical. 21 Appellee s Br. at 19. 22 bear little resemblance to the duties an employee actually is 23 expected to perform. Id. at 100-01. Id. at 65. Id. at 89, 95-97. Ross She Ross attempts to downplay the importance However, [f]ormal job descriptions often Garcetti, 547 U.S. at 424-25. 13 1 Ross s testimony makes plain that reporting pay 2 irregularities to a supervisor was one of her job duties. 3 admitted that her responsibilities included reporting mistakes to 4 supervisors. 5 relayed to Lichtenfeld in the ordinary course of performing her 6 work, and she was not able to meet her responsibility of 7 balancing the payroll without resolving pay requisition 8 irregularities on at least one occasion. 9 Lichtenfeld were part and parcel of her official 10 She Moreover, she acquired all of the information she Her reports to responsibilities. 11 Ross urges that she was speaking as a private citizen 12 because she went outside the chain of command by first bringing 13 her concerns to Lichtenfeld instead of her supervisor and then by 14 writing to the Board. 15 included bringing payroll irregularities to the appropriate 16 person s attention, and went on to say that she frequently 17 brought such issues to Lichtenfeld, implying that reporting to 18 Lichtenfeld as the appropriate person was within the purview of 19 her job duties. 20 her concerns to Lichtenfeld because she believed her supervisor 21 was ignoring them; and she similarly wrote to the Board only when 22 she believed that Lichtenfeld was not acting on her complaints. 23 Taking a complaint up the chain of command to find someone who 24 will take it seriously does not, without more, transform [her] However, Ross testified that her duties Ross Deposition 64-65. 14 Moreover, Ross brought 1 speech into protected speech made as a private citizen. 2 Anemone, 629 F.3d at 116. 3 Ross s assertion in her letter that she was writing on a 4 personal note rather than as a District employee does not alter 5 our conclusion. 6 is not dispositive. 7 An employee s characterization of her own speech Because Ross never attempted to communicate her complaints 8 to the public, she cannot avail herself of the argument that her 9 duties in no way included public revelation of misconduct of 10 district officials that is generally available to the employee 11 who takes the issue public. 12 (where the plaintiff had no such argument as he never 13 communicated with the public). 14 Cf. Weintraub, 593 F.3d at 205 We emphasize that our holding that Ross s speech was 15 unprotected does not rest on the fact that her speech was made in 16 the workplace as opposed to elsewhere. 17 even in the workplace can be protected as that of a private 18 citizen if it is not made pursuant to the employee s official 19 duties as an employee. 20 nature of the speech itself and its relationship to the 21 plaintiff s job responsibilities. 22 complaints about workplace misconduct, while they may be 23 unprotected by the First Amendment if made as part of the 24 plaintiff s job duties, still may be protected by whistleblower Speech to a supervisor Courts must focus their inquiry on the 15 We also observe that 1 laws or other similar employment codes. 2 at 425-26; Ruotolo v. City of N.Y., 514 F.3d 184, 189 n.1 (2d 3 Cir. 2008). 4 See Garcetti, 547 U.S. Finally, we note that this circuit s recent holding in 5 Jackler v. Byrne, 658 F.3d 225, does not bear on our case. In 6 Jackler, the plaintiff was a probationary police officer who 7 allegedly witnessed the use of excessive force against a suspect 8 by a fellow officer. That suspect filed a civilian complaint 9 against the officer. At the request of his supervisor, and in 10 accordance with written police procedure, Jackler filed a report 11 corroborating the accusation of excessive force. 12 Jackler s supervisors pressured him to retract the report and 13 falsify his story to protect the offending officer. 14 refused, he was not hired as a full-time officer. 15 The panel concluded that Jackler had a cognizable First Amendment 16 claim because, when he refused to file a false report, he was 17 speaking as a citizen. 18 Id. at 230-31. When Jackler Id. at 231-32. Jackler involved very different circumstances from this 19 case. The panel emphasized that Jackler had been asked to 20 retract his truthful statements and make statements that were 21 false, and determined that his refusals to accede to those 22 demands constituted speech activity that was significantly 23 different from the mere filing of his initial Report. 24 241. Id. at Indeed, if Jackler had made a false statement to the 16 1 police, he would have violated New York law. 2 Jackler is therefore plainly distinguishable on its facts. 3 alleges that she suffered retaliation for making affirmative 4 statements of misconduct to her supervisors, not for refusing to 5 make false statements that no misconduct had occurred. 6 Id. at 239. Ross In this case, the speech that prompted Ross s retaliation 7 claim owed its existence to her job duties and was made in 8 furtherance of those duties. 9 with reporting pay irregularities to her supervisors, and that is As a payroll clerk, she was tasked 10 what she did here. Accordingly, her complaints to Lichtenfeld 11 and the Board were not protected by the First Amendment, and 12 Lichtenfeld is entitled to summary judgment. 13 CONCLUSION 14 For the foregoing reasons, the judgment of the district 15 court is REVERSED. 17
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