Looney v. Marlborough et al, No. 11-3486 (2d Cir. 2012)

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Justia Opinion Summary

Plaintiff, Building Official for the Town of Marlborough from 1994-2010, sued the Town, as well as its Board of Selectmen, under 42 U.S.C. 1983, alleging that he was deprived of his procedural due process and free speech rights when his position was reduced from full to part time after he made certain statements regarding the use of wood-burning stoves. The court held that the district court erred in determining that Selectmen Black was not entitled to qualified immunity as to plaintiff's Fourteenth Amendment procedural due process claim, as plaintiff had not adequately alleged that he had a constitutionally protected property right in full-time employment. The court also held that the district court erred in determining that the Selectmen defendants were not entitled to qualified immunity as to plaintiff's First Amendment claim, as plaintiff did not adequately allege that he spoke in his capacity as a private citizen. Accordingly, the court reversed and remanded.

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11-3486-cv Looney v. Black et al 1 2 3 4 11-3486-cv Looney v. Black et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ 5 6 August Term, 2012 (Argued: September 27, 2012 Decided: December 21, 2012) 7 Docket No. 11-3486 8 _______________ 9 10 11 12 13 14 15 16 17 18 19 20 PATRICK LOONEY, 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Plaintiff-Appellee, v. WILLIAM BLACK, RIVA R. CLARK, AND JOSEPH LABELLA, Defendants-Appellants, TOWN OF MARLBOROUGH, Defendant. _______________ Before: JACOBS, Chief Judge, STRAUB AND DRONEY, Circuit Judges. _______________ An appeal from an order of the United States District Court for the District of Connecticut (Vanessa L. Bryant, Judge), denying Defendants-Appellants Black, Clark, and LaBella s motion to dismiss on the ground that they were each entitled to qualified immunity. We hold that the District Court erred in determining that defendant Black was not entitled to qualified immunity as to plaintiff s procedural due process claim, as plaintiff does not adequately allege that he had a constitutionally protected property right in retaining full-time, rather than part-time, employment. We hold also that the District Court erred in determining that defendants Black, Clark, and LaBella were not entitled to qualified immunity as to plaintiff s claim under the First Amendment, as plaintiff does not adequately allege he engaged in protected speech made as a private citizen. Accordingly, the order of the District Court is REVERSED, and the case is REMANDED with direction to enter judgment for the Defendants-Appellants. Judge DRONEY dissents in a separate opinion. 1 2 3 4 5 6 7 8 9 10 11 _______________ JACQUES J. PARENTEAU (Justin E. Theriault, on the brief), Madsen, Prestley & Parenteau, LLC, New London, CT, for Plaintiff-Appellee. MICHAEL J. ROSE (Robin B. Kallor and Johanna G. Zelman, on the brief), Rose Kallor LLP, Hartford, CT, Andrew L. Houlding, Rome McGuigan, P.C., Hartford, CT, for Defendants-Appellants. _______________ STRAUB, Circuit Judge: Plaintiff Patrick Looney served as the Building Official for the Town of Marlborough, 12 Connecticut from 1994 until 2010. He now sues Marlborough as well as three members of 13 Marlborough s Board of Selectmen, Defendants-Appellants William Black, Riva Clark, and 14 Joseph LaBella, under 42 U.S.C. § 1983, alleging that he was deprived of his procedural due 15 process and free speech rights when his position was reduced from full to part time after he made 16 certain statements regarding the use of wood-burning stoves, as well as when he subsequently 17 was not reappointed as the town s Building Official. 18 For the reasons that follow, we hold that the District Court erred in determining that 19 Defendant-Appellant Black was not entitled to qualified immunity as to Looney s Fourteenth 20 Amendment procedural due process claim, as Looney has not adequately alleged that he had a 21 constitutionally protected property right in full-time employment. 22 Court erred in determining that Defendants-Appellants Black, Clark, and LaBella were not 23 entitled to qualified immunity as to Looney s First Amendment claim, as Looney does not 24 adequately allege that he spoke in his capacity as a private citizen. 25 REVERSE the order of the District Court, and REMAND the case with the direction that the 26 District Court enter judgment for Defendants-Appellants. 2 We hold also that the District Accordingly, we 1 BACKGROUND 2 The following facts are drawn from the allegations in Looney s Second Amended 3 4 Complaint ( SAC ) and are assumed true for purposes of this appeal. The position of Building Official is established in the town of Marlborough, 5 Connecticut s Town Charter ( Charter ). 6 position are prescribed by ordinance and the Connecticut General Statutes. 7 gives Marlborough s Board of Selectmen the power to appoint all officers set forth therein, 8 including the Building Official. 9 The Charter notes that the powers and duties of the The Charter also Connecticut law provides that a Building Official is appointed to a term of four years 10 and until his successor qualifies . . . . 11 be dismissed under the procedures set forth in Connecticut General Statutes § 29-260(b) and 12 (c) if and when he fails to perform the duties of his office. Id. § 29-260(b), (c). The Charter 13 notes that approval of the entire Board of Selectmen is needed to discharge or remove any 14 appointed official or employee of the town, including the Building Official. 15 Conn. Gen. Stat. § 29-260(a). A Building Official may Looney was appointed as Marlborough s Building Official on August 15, 1994. He 16 learned of the position from a public notice that quoted a salary and stated that the position 17 included a pension and benefits package, both of which are available only to full-time 18 employees. 19 told Looney that he would be given full-time, salaried employment at $33,000 per year, along 20 with a full benefits package. 21 22 Prior to his accepting the job, Marlborough s then-First Selectman Howard Dean Subsequently, Looney was reappointed as Marlborough s Building Official four times, in November 1995, November 1999, February 2004, and April 2006. 3 At this last reappointment, 1 Marlborough s Board of Selectmen decided to continue [his] appointment per C.G.S. Sec. 2 29-260(a) for an additional four years. 3 last reappointment were noted by the Board of Selectmen at that time. (JA-90, ¶ 17.) No other conditions or terms of this 4 Throughout these appointments, and until February 2, 2010, Looney was always a 5 full[-]time employee entitled to all benefits provided to full-time employees according to 6 Section 1.1C of the Town s Personnel Rules and Regulations. 7 were not limited to, group health and dental insurance, group life insurance, long term disability 8 insurance, contributions to retirement, bereavement leave, personal days, leave of absence with 9 pay for jury duty, reimbursement/ accumulated sick leave, holiday pay, and vacation pay. These benefits included, but 10 (JA-90-91, ¶ 19.) 11 and Local 1303-433 of Council 4 AFSCME, AFL-CIO ( Union ) on July 1, 2007 recognized the 12 position of Building Official as full time. 13 A collective bargaining agreement ( CBA ) entered into between the town In October 2009, Looney filed a grievance relating to a purported infringement of his 14 First Amendment rights by his supervisor Peter Hughes, who served as Marlborough s Planning 15 & Development Director. 16 information to a Town resident regarding wood burning boiler/stove and smoke discharge as 17 public health concerns. 18 Hughes allegedly attempted to limit [Looney s] communication of (JA-91-92, ¶ 23.) After Looney filed his grievance against Hughes, matters escalated. Hughes again 19 requested that Looney not engage in discussions of substantive matters outside his job duties 20 concerning other Town agenc[ies] or jurisdiction[s]. 21 protest Hughes s attempts to limit his communication with the public and ultimately retained 22 counsel. (JA-92, ¶ 24.) Looney continued to His counsel sent Black a letter on December 23, 2009 advising him that Hughes s 4 1 restriction was an illegal prior restraint on speech in violation of the First Amendment. 2 (JA-92, ¶¶ 25, 26.) 3 restriction Hughes had placed on Looney s speech, and threatened to discipline or discharge 4 Looney. 5 members would be laid off or have their hours reduced, and that the Building Official position 6 would be reduced to 20 hours a week. 7 Marlborough announced a week later that it would not remove the On January 4, 2010, Marlborough s counsel informed the Union that certain of its Looney then received a letter from Black on January 28, 2010, confirming the reduction 8 in his hours, and stating that he would be paid $33 per hour with no additional compensation for 9 loss of benefits. (JA-93, ¶ 29.) On April 5, 2010, Looney notified Marlborough that he 10 intended to file suit against the town for the events that had transpired. 11 this litigation on June 14, 2010, asserting claims pursuant to 42 U.S.C. § 1983 based on 12 violations of the First Amendment and the Fourteenth Amendment procedural due process 13 guarantee. 14 He then commenced After the lawsuit had commenced, Black announced that he planned to post a notice 15 seeking to fill the Building Official position. LaBella and Clark, as Selectmen, were included 16 in the search committee that interviewed candidates for the position. 17 reappointed during the application period, and during his interview LaBella noted that he had 18 brought a lawsuit against Marlborough. 19 that she had serious issues recommending someone who is suing the Town. 20 Black, Clark, and LaBella all voted for a candidate other than Looney to fill the position. 21 Looney was not reappointed. (JA-94, ¶ 39.) 22 5 Looney applied to be Clark also stated during the interview (JA-94, ¶ 40.) 1 On September 30, 2010, Black, Clark, and Labella moved to dismiss Looney s complaint 2 on the grounds that, inter alia, all three individual defendants were entitled to qualified immunity 3 as to the applicable claims.1 4 granted Looney s motion to file the SAC, and denied defendants motion to dismiss in its 5 entirety. 6 Looney then sought leave to file the SAC. The District Court In rejecting the argument made by Black that he was entitled to qualified immunity as to 7 Looney s Fourteenth Amendment due process claim, the District Court held that Looney had 8 adequately alleged a valid property interest in full-time employment. Looney v. Town of 9 Marlborough, No. 3:10-cv-1068, 2011 WL 3290202, at *8 (D. Conn. July 30, 2011). 10 this determination on its understanding that while Looney s alleged right to full-time 11 employment with pension and benefits was not memorialized in a written contract, there was a 12 sufficiently consistent course of conduct over a period of more than fifteen years, and Looney 13 had relied upon those benefits to secure medical coverage for himself and his disabled spouse. 14 Id. 15 right under the Fourteenth Amendment. Id. 16 It based Thus, the District Court determined that Looney had a constitutionally protected property From this determination, the District Court further concluded that the law was defined 17 with reasonable clarity and that, based upon the allegations of the [SAC], Black s conduct in 18 reducing Looney s hours was not objectively reasonable. Id. at *9. 19 the motion to dismiss to the extent that Black argued he was entitled to qualified immunity as to 20 Looney s procedural due process claims. 1 Accordingly, it denied Black is the only individual defendant named in Looney s Fourteenth Amendment procedural due process claim. Black, Clark, and LaBella are all named in the First Amendment claim. The Town of Marlborough is named only in two separate claims that are not at issue on appeal. It did not move to dismiss the claims against it. 6 1 The District Court then considered Black, Clark, and LaBella s arguments that they were 2 entitled to qualified immunity as to Looney s First Amendment claim. 3 motion to dismiss on this ground as well, holding that defendants appear[ed] to concede that 4 Looney spoke as a citizen instead of pursuant to his official duties, and that Looney s 5 allegations regarding the speech at issue adequately established that it touched on a matter of 6 public concern. Id. at *10. 7 The court denied the Based on this determination, the District Court held that the SAC adequately alleged both 8 a violation of Looney s clearly established First Amendment rights, and that Black, Clark, and 9 LaBella had committed acts of retaliation against Looney for his speech, such that they did not 10 act in an objectively reasonable manner. Id. at *14. 11 the individual defendants were not entitled to qualified immunity at this stage of the litigation as 12 to Looney s First Amendment claims, and their motion to dismiss was denied on this ground as 13 well. 14 15 16 Accordingly, the District Court held that This timely appeal followed. DISCUSSION Qualified immunity provides government officials immunity from suit rather than a 17 mere defense to liability. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Mitchell v. 18 Forsyth, 472 U.S. 511, 526 (1985)). Government officials who are performing discretionary 19 functions generally are shielded from liability for civil damages insofar as their conduct does not 20 violate clearly established statutory or constitutional rights of which a reasonable person would 21 have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 7 1 [T]he driving force behind creation of the qualified immunity doctrine [is] a desire to 2 ensure that insubstantial claims against government officials [will] be resolved prior to 3 discovery. 4 (1987)); see also Saucier v. Katz, 533 U.S. 194, 200 (2001) ( A ruling on qualified immunity 5 should be made early in the proceedings so that the cost and expenses of trial are avoided where 6 the defense is dispositive ), overruled on other grounds by Pearson, 555 U.S. 223. 7 Pearson, 555 U.S. at 231 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 We review a denial of qualified immunity de novo. Clubside, Inc. v. Valentin, 468 8 F.3d 144, 152 (2d Cir. 2006); Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005). In reviewing such 9 a denial, [f]irst, we ask whether there was a constitutional violation. If the answer to this 10 question is yes, we must then determine whether the right was clearly established at the time of 11 the violation. Clubside, 468 F.3d at 152 (citing Saucier, 533 U.S. at 201). 12 established if the law (1) was defined with reasonable clarity, (2) has been affirmed by the 13 Supreme Court or the Second Circuit[,] and (3) where the conduct at issue would have been 14 understood by a reasonable defendant to be unlawful under the existing law. Young v. Cnty. of 15 Fulton, 160 F.3d 899, 903 (2d Cir. 1998); see also Reichle v. Howards, __ U.S. ___, 132 S. Ct. 16 2088, 2093 (2012) ( To be clearly established, a right must be sufficiently clear that every 17 reasonable official would have understood that what he is doing violates that right. In other 18 words, existing precedent must have placed the statutory or constitutional question beyond 19 debate. (citations, modifications, and internal quotation marks omitted)). Finally, we must 20 decide whether it was objectively reasonable [for the defendants] to believe that their acts did 21 not violate these clearly established rights. Young, 160 F.3d at 903 (internal quotation marks 22 omitted). 8 A right is clearly 1 On appeal, Defendants-Appellants argue that the District Court erred in denying their 2 motion to dismiss the complaint because (1) Black is entitled to qualified immunity as to 3 Looney s procedural due process claim, and (2) all three individual defendants are entitled to 4 qualified immunity as to Looney s First Amendment claim. 5 turn. 6 I. 7 We address these arguments in Procedural Due Process Claim In determining whether Looney s complaint adequately alleges that there was a 8 constitutional procedural due process violation, we inquire first as to whether he adequately 9 alleged a property right protected under the Constitution. See Bd. of Regents of State Colls. v. 10 Roth, 408 U.S. 564, 576-77 (1972). Such property interests cannot be found on the face of the 11 Constitution, but rather are created[,] and their dimensions are defined by[,] existing rules or 12 understandings that stem from an independent source such as state law-rules or understandings 13 that secure certain benefits. 14 establish a constitutionally protected property right. Id. 15 legitimate claim of entitlement to the alleged property interest. Id. 16 Id. at 577. A unilateral expectation is not sufficient to Rather, a plaintiff must have a Where a valid property right is established, we consider whether a plaintiff was deprived 17 of that right without due process. Narumanchi v. Bd. of Trs. of Conn. State Univ., 850 F.2d 70, 18 72 (2d Cir. 1988). 19 whether the government provided such minimum process. See Mathews v. Eldridge, 424 U.S. 20 319, 332-35 (1976) (elaborating how to determine what process is due when a plaintiff has been 21 deprived of a valid property interest). In making this determination, we inquire into what process was due, and 22 9 1 To determine whether Black is entitled to qualified immunity as to Looney s procedural 2 due process claim, we must determine also whether the constitutionally protected property right 3 was clearly established. 2 4 inquiry based on the situation facing an individual defendant at the time of her alleged actions. 5 A defendant s alleged conduct must have violated plaintiff s procedural due process rights in a 6 manner that every reasonable official would have understood . . . violate[d] that right. Id. at 7 2093 (citations, modifications, and internal quotation marks omitted). 8 9 Reichle, 132 S. Ct. at 2093. This determination is a particularized The District Court s holding that Black was not entitled to qualified immunity as to Looney s procedural due process claim at this stage in the litigation was grounded in the 10 determination that Looney had a constitutionally protected property right in full-time 11 employment. 12 complaint. 13 both that the Building Official is appointed for a four-year term, and the procedure for dismissing 14 a Building Official who has failed to perform his duties, Looney, 2011 WL 3290202, at *7; (2) 15 Marlborough s Employee Handbook, Section 1.1.C, which identifies full[-]time employees as 16 those working thirty hour weeks or more, and indicates that those employees are entitled to 17 pension and healthcare benefits, id.; and (3) Looney s four reappointments as Building Official 18 over the course of fifteen years, each time beginning his term with pension and benefits as a 19 full-time employee, id. at *8. 20 21 In so deciding, the court relied on three primary sources identified in Looney s These were: (1) Connecticut General Statutes § 29-260(a)-(c), which establishes The District Court, however, did not rely on the CBA in making its determination that Looney had a property interest in full-time employment. 2 Indeed, Looney argued in his A court may exercise its discretion in deciding to first address whether (1) a plaintiff has adequately alleged a constitutional violation, or (2) such a constitutional right was clearly established. See Pearson, 555 U.S. at 242. 10 1 sur-reply that his property interest was protected by Connecticut Statute, not the CBA, a 2 statement that the District Court credited. (JA-186, 219.) 3 The District Court based its holding on Ezekwo v. New York City Health and Hosps. 4 Corp., 940 F.2d 775 (2d Cir. 1991). There, plaintiff Ezekwo was a doctor who had been 5 accepted into a residency program at a hospital run by the defendant. 6 outset of her residency that every resident would serve as Chief Resident for four months 7 during his or her third year. Id. at 777. Shortly before her third year began, despite receiving 8 negative performance reviews, she was again told that she would be serving as Chief Resident 9 later that year. She was notified at the After filing certain allegations of race and gender discrimination against her 10 supervisor, Ezekwo was notified that she would not be able to serve as Chief Resident. 11 778. 12 Chief Resident because she had been consistently . . . informed that she would rotate through 13 the position of Chief Resident and receive a salary differential as a result of that designation. 14 Id. at 782-83. 15 was expressly highlighted in HHC s informational documents. Id. at 783. 16 determined that the written documents, the course of conduct, and Ezekwo s reasonable 17 reliance thereon created a contractual right under New York state law that rose to the level of a 18 significant property interest. Id. 19 Id. at We there found that the plaintiff had more than just a unilateral expectation of becoming Indeed, the practice of rotating residents through the Chief Resident position Accordingly, we The District Court relied on Ezekwo to hold that both the Connecticut General Statutes 20 and Marlborough s Employee Handbook, in conjunction with Looney s four consecutive 21 reappointments to the Building Official position, gave rise to a sufficiently consistent course of 22 conduct to entitle Looney not only to a property interest in his employment, but to a property 11 1 interest in full-time employment in particular. Looney, 2011 WL 3290202, at *9. The court 2 emphasized that while Looney s interest was perhaps . . . of lesser value than Ezekwo s 3 once-in-a-lifetime opportunity to become a chief resident, full-time employment was still very 4 important to him. Id. at *8. 5 Two other cases, Ciambrello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002) and 6 Harhay v. Town of Ellington Board of Education, 323 F.3d 206 (2d Cir. 2003), were 7 distinguished by the District Court, which deemed them to be not directly on point. Looney, 8 2011 WL 3290202, at *7-*8. 9 We, however, find them to be important precedents. Ciambrello concerned a civil service employee who was demoted back to his original 10 position from a recent promotion because Nassau County, his employer, determined he had been 11 promoted in violation of his union s collective bargaining agreement. Ciambrello, 292 F.3d at 12 312. 13 demotion or disciplinary proceedings absent incompetence and/or misconduct, gave the 14 plaintiff a property interest in his promotion, as he was demoted in direct violation of the 15 collective bargaining agreement s terms. Id. at 316. 16 We held that the applicable collective bargaining agreement, which expressly prohibited Harhay similarly involved a property right that we held was established under the terms 17 of the applicable CBA. See Harhay, 323 F.3d at 212. 18 bargaining agreement at issue in that case, which provided the plaintiff a contractual right . . . to 19 be reappointed to any vacant position for which she was qualified, we determined that it was 20 clear that the plaintiff, a tenured school teacher, had a constitutionally protected property right 21 in being reappointed. Id. 22 12 Based on the text of the collective 1 Ezekwo, Ciambrello, and Harhay therefore all involved a plaintiff who had been 2 promised something explicitly either verbally, or in the terms of the applicable collective 3 bargaining agreement about specific conditions during the future term of their employment. 4 Ezekwo was told both in writing and in person that she could expect to be chief resident during 5 her third year of residency. Ezekwo, 940 F.2d at 782. 6 collective bargaining agreement that stated he would not be demoted without engaging in 7 incompetence or misconduct. Ciambrello, 292 F.3d at 319. 8 promised that she would be reappointed to an available position. Harhay, 323 F.3d at 212. Ciambrello was working pursuant to a Harhay was contractually 9 In this case, however, Looney does not allege that any writing or verbal communication 10 he was a party to indicated that his position as Building Official necessarily was to continue full 11 time, or even that he was guaranteed reappointment to the position. 12 that it always had been so. 13 He alleges, instead, simply In doing so, he relies on a conglomeration of sources that he argues create a sufficient 14 course of conduct, including (1) the relevant Connecticut General Statutes sections; (2) a 15 discussion he had in 1994 with then-First Selectman Dean regarding the terms of his initial 16 appointment as Building Official; (3) the 1994 job advertisement for the position of Building 17 Official, which indicated that it came with a pension/benefits package ; (4) the Marlborough 18 Employee Handbook, which defines a full[-]time employee as one who works thirty hours or 19 more per week, and indicates that such employees are entitled to pension and benefits; and (5) 20 the fact that he was reappointed four separate times over a fifteen year span, and that during the 21 entirety of each appointment (until the last) he worked as a full-time employee, receiving 22 pension and benefits. 13 1 Nothing in any of these documents or interactions, however, indicates that Marlborough 2 or any other party provided a written guarantee or an explicit indication that Looney should 3 expect to be employed full time from appointment to appointment, or throughout the duration of 4 a single appointment. 5 saw regarding the position in 1994, before he was first appointed, indicated that he could expect 6 the job to be full time and to come with pension and benefits, those statements were made more 7 than fifteen years ago, and indicated, at best, only the terms and conditions of Looney s initial 8 appointment. 9 While Looney alleges that the discussion he had and advertisement he Furthermore, Connecticut General Statutes § 29-260 states only that the Building Official 10 is to be appointed for four years, and provides a mechanism for removing the Building Official 11 from his or her position if and when certain conditions are met. It is silent as to any guarantee 12 or procedural requirement for reducing a Building Official s hours from full to part time. 13 All of the other documents identified in Looney s complaint the Employee Handbook, 14 the town s Charter, and the CBA merely define what was or was not considered full time 15 employment, and accordingly whether an employee could expect to receive, inter alia, pension 16 and health care benefits. 17 to continue being a full-time employee. 18 Looney of his final term of reappointment in April 2006 by stating that it had decided to 19 continue [Plaintiff s] appointment per C.G.S. Sec. 29-260(a), for an additional four years 20 effective August, 2006. 21 guaranteed, nothing about the terms of that appointment when it so notified him. None of these items affirmatively indicated that Looney could expect In fact, the SAC alleges only that the Board notified (JA-90, ¶ 17; JA-150.) But the Board said, and therefore 22 14 1 The complaint s allegations, without any written or spoken guarantee as to the terms of 2 his employment, leave Looney with nothing more than a unilateral expectation that he would 3 continue to be reappointed to his position, and that such reappointment would be full time. 4 Such a unilateral expectation does not qualify as a constitutionally protected property right. See 5 Roth, 408 U.S at 577 (stating that an abstract concern in being rehired without more is 6 insufficient to create a property interest). Indeed, while none of the documents or interactions 7 on which Looney relies can rightly be said to create an affirmative expectation that he would 8 continue to be a full-time employee, the CBA, which provides in Article 23 that the town may 9 determine[] that layoffs or reductions in hours are necessary (JA-168), and provides also a 10 hierarchy by which such layoffs and reductions should take place, affirmatively indicates that he 11 should have been prepared for the possibility that his hours would be reduced. 12 We do not doubt that Looney s interest in his continued full-time employment was 13 important, or that he has felt the negative effects of being deprived of his pension and health care 14 benefits. Unfortunately, however, Looney s interest in these items does not suffice to guarantee 15 them constitutional protection as property rights to which he has any procedural entitlement.3 16 We therefore conclude that Looney has not adequately alleged a constitutionally protected 17 property interest in his full-time employment. Accordingly, the District Court erred in 18 3 The few other Second Circuit and Supreme Court cases cited by the parties that discuss employees property rights in the specific terms of their employment do not assist Looney either. See Roth, 408 U.S. at 576-78 (holding assistant professor did not have property right in renewed employment where no mention of re-employment existed); O Connor v. Pierson, 426 F.3d 187, 197 (2d Cir. 2005) (finding property right in forcing plaintiff to take sick leave without pay, as it was comparable to a suspension without pay); Finley v. Giacobbe, 79 F.3d 1285, 1294-95 (2d Cir. 1996) (stating that at-will probationary employees do not have protectable property rights in their employment); Narumanchi, 850 F.2d at 72 (holding plaintiff had a property right in his employment that was violated by two-week suspension without pay, but determining that plaintiff had not utilized already available process for airing his grievance). 15 1 determining that Black was not entitled to qualified immunity as to Looney s procedural due 2 process claim. 3 II. 4 First Amendment Claim As with Looney s Fourteenth Amendment claim, the individual defendants moved to 5 dismiss Looney s First Amendment claim, and so the allegations must be read in the light most 6 favorable to [Looney], and [we] construe the complaint liberally. Gregory v. Daly, 243 F.3d 7 687, 691 (2d Cir. 2001) (internal quotation marks omitted). We are bound to make our 8 determination based only on the contents of the complaint. See McKenna v. Wright, 386 F.3d 9 432, 436 (2d Cir. 2004) (stating that the court can only consider the face of the complaint in 10 11 deciding whether a defendant is entitled to qualified immunity on a motion to dismiss). In determining whether a defendant is entitled to qualified immunity as to a plaintiff s 12 First Amendment claims, we must first determine whether the plaintiff s constitutional right to 13 free speech was impinged. 14 protection when they speak as a private citizen addressing matters of public concern. 15 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also Sousa v. Roque, 578 F.3d 164, 170 (2d 16 Cir. 2009). A matter of public concern is one that relates to a matter of political, social, or 17 other concern to the community. Connick v. Myers, 461 U.S. 138, 146 (1983). 18 Generally, government employees are entitled to First Amendment Public employees speaking pursuant to their official duties, however, are not afforded 19 protections under the First Amendment. Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012) 20 (internal quotation marks omitted). This is the case even when the subject of an employee s 21 speech is a matter of public concern. Id. It is also true, however, that a public employee 22 does not relinquish First Amendment rights to comment on matters of public interest [simply] by 16 1 virtue of government employment. Connick, 461 U.S. at 140. 2 issue owes its existence to a public employee s professional responsibilities, Garcetti, 547 U.S. 3 at 421-22, it can properly be said to have been made pursuant to that party s official duties. See 4 also Ross, 693 F.3d at 308 (holding the speech at issue was not protected because it owed its 5 existence to plaintiff s job duties ); Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 6 2010) (noting that the speech alleged was part-and-parcel of the plaintiff s employment 7 responsibilities (internal quotation marks omitted)). 8 9 Rather, where the speech at To defeat an assertion of qualified immunity, an employee s constitutional right to free speech must also be clearly established under the law. Reichle, 132 S. Ct. at 2093. Further, 10 even where a plaintiff has shown that the defendant s actions violated a clearly established 11 constitutional right, the defendant may still be entitled to qualified immunity if she is alleged to 12 have acted in an objectively reasonable way. See Amore, 624 F.3d at 530. 13 On appeal, defendants argue that they did not, as the District Court determined, 14 concede that Looney was not acting in his official capacity, and thus must have been speaking 15 as a private citizen. 16 otherwise make any arguments directly addressing this issue in their motion to dismiss or reply 17 papers below.4 18 on Garcetti. 19 in his opposition to defendants motion to dismiss. The District court also noted that public 20 employees are not speaking as citizens for First Amendment purposes when they make It is true that defendants failed to cite Garcetti or Weintraub, or to But it is also true that both the plaintiff and the District Court cited and relied Looney briefed the issue of whether or not he spoke pursuant to his official duties 4 Defendants argue on appeal that their general objection below that Looney did not adequately allege he had engaged in protected speech with any particularity encompassed, inter alia, the failure to adequately allege that he spoke as a private citizen. 17 1 statements pursuant to their official duties. Looney, 2011 WL 3290202, at *10 (quoting 2 Garcetti, 547 U.S. at 421). 3 Thus, the argument is preserved for appeal. See Higgins v. N.Y. Stock Exch., Inc., 942 4 F.2d 829, 832 (2d Cir. 1991) (considering an argument that was raised below because the 5 argument, although different in emphasis from the point pressed on appeal, at least introduced 6 the notion in the district court). 7 may exercise our discretion and consider it now. See Allianz Ins. Co. v. Lerner, 416 F.3d 109, 8 114 (2d Cir. 2005) (stating that because rule that appellate court will not consider argument not 9 raised below is prudential, not jurisdictional, we have discretion to consider waived arguments 10 11 12 Furthermore, even if the argument had been waived below, we (internal quotation marks omitted)). We therefore turn to the question of whether Looney s complaint adequately alleges that his speech was made as a private citizen, rather than in the course of his official duties: 13 14 15 16 17 18 19 Ross, 693 F.3d at 306 (citation and internal quotation marks omitted). 20 is a practical one. Garcetti, 547 U.S. at 424. 21 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. Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court s decision. The proper inquiry here Looney s allegations regarding the content and scope of what he said to the town 22 resident, as well as the capacity in which he said it, are vague. 23 totality, of the allegations regarding Looney s allegedly protected speech made to a town resident 24 appear in paragraphs 23 through 25 of his complaint. 25 26 The vast majority, if not the They are as follows: 23. On or about October 8, 2009, Plaintiff filed a grievance claiming harassment relative to his freedom of speech rights based on the attempt by Plaintiff s supervisor, Peter 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Hughes, Planning and Development Director, to limit the communication of information to a Town resident regarding wood burning boiler/stove and smoke discharge as public health concerns. 24. On October 30, 2009, Peter Hughes responded, Mr. Looney has been requested to restrict his actions in the office to that of his duties and not to make determinations or engage in discussions of substantive matters outside his job duties concerning other Town agenc[ies] or jurisdiction[s]. 25. On November 5, 2009, in a memorandum to First Selectman Black, Plaintiff continued to protest limits placed on his ability to communicate information to the public relative to the outdoor burning boilers issue whereby Plaintiff was voicing his opinion regarding an outside agency enforcing a cease and desist order against Town residents. (JA-91-92.) Looney alleges that he communicat[ed] . . . information to a Town resident regarding 17 wood burning boiler/stove and smoke discharge as public health concerns. 18 Similarly, he alleges that he communicate[d] information to the public relative to the outdoor 19 wood burning boilers issue by voicing his opinion regarding an outside agency enforcing a 20 cease and desist order against Town residents. (JA-92, ¶ 25.) 21 (JA-92, ¶ 23.) As to the scope of his duties as Building Official, Looney alleges generally that [a]t all 22 times relevant to the complaint, he was employed as the Building Official of the Town of 23 Marlborough, (JA-87, ¶ 1) and as such was responsible for the administration and enforcement 24 of the State Building Code at the municipal level, including the organization and conduct of the 25 building advisory, inspection and enforcement program (JA-88, ¶ 7). He further alleges that 26 throughout his employment he kept uppermost in mind his obligation to enforce the State 27 Building Code to ensure the safety of the townspeople. 28 29 (JA-91, ¶ 21.) Beyond this, the complaint does not allege specifics as to what Looney said, or the context in which he said it. The job falls to us to so infer, reading all available allegations in the 19 1 2 light most favorable to Looney. Daly, 243 F.3d at 691 (internal quotation marks omitted). In the absence of anything more specific, Looney s vague allegations force us to 3 conclude that, as the town employee who oversaw the entire organization and conduct of the 4 building advisory, inspection and enforcement programs, particularly in light of his 5 self-described obligation to enforce the State Building Code, the alleged speech set forth in the 6 complaint was closely related to his work as Building Official. 7 understanding is furthered by Looney s dual allegations that (1) it was a part of his job to ensure 8 the safety of the townspeople by enforcing the relevant building codes, and (2) the smoke 9 discharge that was causing the issue discussed regarding the wood burning stoves or boilers was (JA-88, ¶ 7.) This 10 a public health concern[]. 11 Looney s allegations is that he spoke on these issues because he was in an official position that 12 required, or at least allowed, him to do so. 13 to his position as the Building Official. 14 that he spoke as a private citizen. 15 (JA-91-92, ¶¶ 21, 23.) The only sensible way to interpret It follows that these statements owed their existence As a consequence, Looney has not adequately alleged It is true that Looney alleges that his supervisor, in admonishing him for this alleged 16 speech, requested that he refrain from discussing matters outside [Looney s] job duties. 17 (JA-92, ¶ 24 (emphasis added).) 18 enforcing a cease and desist order against Town residents. (JA-92, ¶ 25 (emphasis added).) 19 But [f]ormal job descriptions often bear little resemblance to the duties an employee actually is 20 expected to perform, and the listing of a given task in an employee s written job description is 21 neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the 22 employee s professional duties for First Amendment purposes. Garcetti, 547 U.S. at 424-25. It is also alleged that his speech regarded an outside agency 20 1 Similarly, whether speech was unprotected does not rest on the fact that [the] speech was made 2 in the workplace as opposed to elsewhere. Ross, 693 F.3d at 307. 3 The face of Looney s complaint alleges nothing more than a vague set of circumstances 4 regarding speech which necessarily owed its existence to Looney s role as Building Official. 5 Id. at 308. Because the speech at issue is alleged to have been made in the course of Looney s 6 official duties, he has not adequately alleged that such speech is entitled to First Amendment 7 protection.5 8 9 The District Court therefore erred in holding that Black, Clark, and LaBella were not entitled to qualified immunity as to Looney s First Amendment claim. 10 CONCLUSION 11 For the aforementioned reasons, the order of the District Court denying Black, Riva, and 12 LaBella qualified immunity is REVERSED, and the case is REMANDED with the direction to 13 enter judgment for the Defendants-Appellants. 5 As Looney has not adequately alleged that the underlying speech is entitled to First Amendment protection, to the extent his First Amendment claims may properly be categorized as claims of retaliation for filing a petition against the Defendants-Appellants, rather than freedom of speech claims, they necessarily fail as well. See Garcetti, 547 U.S. at 424. 21 1 DRONEY, Circuit Judge, dissenting: 2 I respectfully dissent from the majority s resolution of both the due process and First 3 Amendment claims. I cannot conclude that the allegations in Looney s complaint call for 4 qualified immunity and warrant dismissal at this juncture. As to Looney s procedural due 5 process claim, the allegations of the representations and conduct by defendant First Selectman 6 Black and the other Town officials, and the importance of the salary and benefits to Looney, are 7 sufficient to show that he had a property right to full-time employment protected by procedural 8 due process during his four-year statutory term as a Building Official. As to Looney s First 9 Amendment retaliation claim, the allegations in the complaint sufficiently demonstrate that 10 Looney s speech was made as a private citizen and on a matter of public concern. Although 11 discovery may uncover facts to the contrary, it would be premature to conclude otherwise on a 12 motion to dismiss. Accordingly, I would affirm the district court s denial of qualified immunity. 13 I. 14 Procedural Due Process Claim Qualified immunity may only be granted if an official has met his burden in 15 demonstrating that no rational jury could conclude (1) that the official violated a statutory or 16 constitutional right, and (2) that the right was clearly established at the time of the challenged 17 conduct. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2080 (2011) (internal quotation marks omitted). 18 A Government official s conduct violates clearly established law when, at the time of the 19 challenged conduct, the contours of a right are sufficiently clear that every reasonable official 20 would have understood that what he is doing violates that right. Id. at 2083 (alterations and 21 internal quotation marks omitted). The question is not what a lawyer would learn or intuit from 22 researching case law, but what a reasonable person in [the] defendant s position should know 1 1 about the constitutionality of the conduct. . . . [W]e use an objective standard for judging the 2 actions of state and federal officials. Coollick v. Hughes, 699 F.3d 211, 220 (2d Cir. 2012) 3 (internal citations and quotation marks omitted). Under this standard, Looney s factual 4 allegations, if accepted as true, would have led the defendants to conclude that reducing 5 Looney s compensation and eliminating his benefits without a hearing violated his right to due 6 process. 7 Looney has sufficiently alleged in his complaint that he had a protected property interest 8 in his status as a full-time employee during the period of his appointment as Building Official 9 under this Court s prior holdings in Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775 (2d 10 Cir. 1991), Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002), and Harhay v. Town 11 of Ellington Board of Education, 323 F.3d 206 (2d Cir. 2003). Looney alleged that in 1994, 12 when he was appointed to his first statutory term as the Marlborough Building Official, the job 13 advertisement set forth a salary and pension/benefits package that were only available to full- 14 time employees of the Town. He also alleged that the then-First Selectman specifically told 15 Looney at the time he accepted the position that the Building Official role was a full-time 16 position with the benefits of other full-time employees, such as pension, healthcare, sick leave, 17 and vacation time. In addition, Looney alleged that the Town s personnel rules and regulations 18 designated him as a full-time employee entitled to all benefits provided to full-time employees. 19 Looney alleged that he was reappointed four more times by the Board of Selectmen as a 20 full time Building Official, and he enjoyed full-time salary and benefits during his entire sixteen 21 years as the Building Official without any indication that he could be reduced from his full-time 22 status. During this period, he received a salary and the same benefits as all other full-time 2 1 Marlborough employees. The complaint also alleged that in 2007, a collective bargaining 2 agreement entered into by the Town recognized the Building Official position as full-time.1 It 3 was only in 2010 after Looney spoke out against the actions of Town officials that he was 4 reduced to part-time status and his benefits were terminated. Our prior decisions require due 5 process protection for Looney so that he was at least entitled to a hearing before this reduction in 6 his pay and benefits. 7 In Ezekwo, we considered whether the plaintiff had a property interest in serving as chief 8 ophthalmology resident at the defendant Harlem Hospital Center, which was operated by New 9 York City. The hospital had historically awarded the position to all ophthalmology residents in 10 the last year of their three-year residencies. Ezekwo, 940 F.2d at 777-78. However, after the 11 plaintiff began writing letters to the hospital complaining about various working conditions, the 12 hospital decided to change the policy for selecting chief ophthalmology residents to what it 13 claimed was a merit-based program and denied the plaintiff the chief resident status. Id. at 14 778-79. In concluding that the plaintiff enjoyed a property interest in the position of chief 15 resident, we focused on two factors. First, we observed a course of conduct in which the 16 hospital had consistently offered explicit reassurances to the plaintiff, including verbal 17 statements from supervisors and written informational documents, that she would rotate into the 1 The collective bargaining agreement itself explicitly listed the Building Official as a salaried employee while other listed positions, such as Administrative Specialist and Tax Clerk, were listed as hourly positions. In addition, in their reply brief before the district court, the defendants conceded that Looney could have pursued his grievance regarding the reduction in hours, compensation, and benefits through the procedures established by the collective bargaining agreement. While Looney has not identified the collective bargaining agreement as a source for his property interest, the collective bargaining agreement does further underscore the Town s course of conduct upon which Looney reasonably relied to believe that he had a protected interest in his status as a full-time employee. 3 1 chief resident position. See id. at 783. Second, we highlighted the importance to the holder of 2 the right. Id. (quoting Brown v. Brienen, 722 F.2d 360, 364 (7th Cir. 1983)). We found that the 3 plaintiff s interest in serving as chief resident was sufficiently important because her interest 4 was more than merely financial and because the position, due in large part to the very nature 5 of medical training itself, was of significant professional value. Id. Accordingly, we found that 6 the plaintiff s expectation of performing the duties of Chief Resident was reasonable and well 7 founded and rose to the level of a property interest entitled to the protections afforded by the Due 8 Process Clause. Id. 9 In Ciambriello, we concluded that a civil service employee enjoyed a protected property 10 interest in his position as a maintenance mechanic and thus was entitled to a hearing when his 11 employer sought to demote him back to his former position as equipment operator. 292 F.3d at 12 318. As in Ezekwo, we focused on the course of conduct toward the plaintiff and concluded that 13 he had a reasonable expectation that he would retain his position in that case, based on the 14 terms of a collective bargaining agreement. Also, as in Ezekwo, we emphasized that the 15 plaintiff s interest in his position, while not a once-in-a-lifetime opportunity[,] is still 16 significant. 292 F.3d at 318. After working for the County for nearly five years, [the plaintiff] 17 was promoted to a position that entailed higher pay and greater benefits. [The plaintiff] served 18 in the higher position for well over two years, only to be returned to his original position and 19 salary. Id. We therefore had no trouble concluding that this right was a property right of 20 sufficient importance to [the plaintiff] to warrant constitutional protection. Id. (emphasis 21 added). 22 4 1 In Harhay, we concluded that a previously terminated public school teacher possessed a 2 property interest in her position on a reappointment list for purposes of determining whether 3 she would be rehired when a vacancy occurred. 323 F.3d at 209, 212. Although we also 4 concluded that the plaintiff had been afforded adequate process through the grievance procedure 5 in her collective bargaining agreement, in determining whether she had a due process right in the 6 possibility of reappointment we emphasized the importance to the plaintiff of the reappointment 7 protection. See id. at 212-13. As in Ezekwo and Ciambriello, we underscored that the plaintiff s 8 position on the reappointment list can and should be characterized as an important interest 9 as opposed to a trivial and insubstantial interest as it directly affects her right to be employed 10 11 at all. Id. (quoting Ezekwo, 940 F.2d at 783). These decisions emphasize the importance of a course of conduct on which a plaintiff 12 might reasonably rely to establish a property right in the interest in question. However, they do 13 not require, as the majority concludes, that this course of conduct be established through a 14 written or spoken guarantee as to the terms of [the plaintiff s] employment. As we held in 15 Ezekwo, [a]dditional contractual provisions may be implied into a contract as a result of a 16 course of dealing between the parties. The parties through their conduct and practice can create 17 additional rights and duties. 940 F.2d at 782 (citing Perry v. Sindermann, 408 U.S. 593, 602 18 (1972)). The allegations here of the initial representations to Looney for his first appointment, 19 the advertisement for the position, the Town personnel rules and regulations, and the collective 20 bargaining agreement, as well as Looney s reappointment each time over the course of sixteen 21 years to the position of a full-time Building Official without any diminutions of his hours or 22 compensation, are sufficient to allege a course of conduct that implicates a property interest in 5 1 full-time employment.2 Even if the majority is correct that the bar for such a property interest is 2 set so high as to require a written guarantee or explicit indication, I also believe that the 3 allegations in the complaint reach it.3 4 As to the importance to the holder of the right, Ezekwo, 940 F.2d at 783 (internal 5 quotation marks omitted), Looney lost all his health and retirement benefits as well as a 6 significant amount of salary due to the reduction in his hours. If the suspension of a university 7 professor for two weeks without pay implicates a protected property interest, see Narumanchi v. 2 The majority points to Article 23 of the collective bargaining agreement, which provides the hierarchy under which the Town would implement layoffs or reductions in hours. In reviewing a motion to dismiss, our review is limited to the facts as presented within the four corners of the complaint, to documents attached to the complaint, or to documents incorporated within the complaint by reference. Taylor v. Vt. Dep t of Educ., 313 F.3d 768, 776 (2d Cir. 2002). Limited quotation does not constitute incorporation by reference. Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) (alteration and internal quotation marks omitted). Looney s brief mention of the collective bargaining agreement in his complaint does not constitute incorporation by reference under Cosmas, and so it would be inappropriate to rely on the collective bargaining agreement as a basis for resolving a motion to dismiss. However, even if the collective bargaining agreement is incorporated by reference into the complaint, Article 23 provides that layoffs within a job title would take effect in inverse order of seniority, starting with temporary and seasonal employees, part-time probationary employees, full-time probationary employees, and concluding [b]y seniority of the remaining employees in the job title. Looney was clearly not a temporary or seasonal employee, and because he had served as a Town employee for more than six months, he no longer qualified as a probationary employee under Article 13 of the collective bargaining agreement. Based on a plain reading of Article 23, Looney therefore would seem to have been on notice about a possible reduction in hours under the collective bargaining agreement only if there had previously been layoffs of temporary, seasonal, and probationary employees. However, the extent to which layoffs were occurring around the time Looney s hours were reduced is a factual question that we cannot resolve at this juncture. 3 Looney alleged that the representations regarding the full-time nature of the Building Official position were made to him the first time he was appointed Building Official. It surely is not required that those assurances needed to have been repeated to Looney explicitly each time he was reappointed to his new statutory term as Building Official, especially when he was at all times treated as a full-time employee. Nevertheless, Looney alleges that each time he was reappointed, it was as a full-time Building Official with pension and benefits, and he should be given the opportunity to produce evidence to that effect. 6 1 Bd. of Trs., 850 F.2d 70, 72 (2d Cir. 1988), then surely such a reduction in a Building Official s 2 compensation and the elimination of his benefits require due process protections as well. While 3 there is no allegation that his [position] was a once-in-a-lifetime opportunity[,] the interest is 4 still significant. Ciambriello, 292 F.3d at 318. I therefore conclude that Looney has adequately 5 alleged a clearly established, constitutionally protected interest in his full-time employment, and 6 that Black is therefore not entitled to qualified immunity as to Looney s due process claim at this 7 stage of the litigation. 8 II. 9 First Amendment Claim The complaint also contains sufficient allegations that Looney s speech merited the 10 protections of the First Amendment. A public employee is not protected by the First 11 Amendment only if the speech at issue owed its existence to [the plaintiff s] job duties and was 12 made in furtherance of those duties. Ross v. Breslin, 693 F.3d 300, 308 (2d Cir. 2012). 13 Evidence about both the specific content of Looney s speech to the Marlborough residents and 14 Looney s job responsibilities must be presented before it would be appropriate to dismiss his 15 claim on the ground of qualified immunity. 16 In order to establish a First Amendment retaliation claim, plaintiffs must prove that: (1) 17 they engaged in constitutionally protected speech because they spoke as citizens on a matter of 18 public concern; (2) they suffered an adverse employment action; and (3) the speech was a 19 motivating factor in the adverse employment decision. Skehan v. Vill. of Mamaroneck, 465 20 F.3d 96, 106 (2d Cir. 2006), overruled on other grounds, Appel v. Spiridon, 531 F.3d 138, 140 21 (2d Cir. 2008) (per curiam). To demonstrate that the plaintiff was speaking as a citizen, the 22 plaintiff must show that he was not speaking pursuant to [his] official duties. Ross, 693 F.3d 7 1 at 305 (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). If the plaintiff satisfies the 2 three prongs of the Skehan test, the 3 4 5 6 7 8 9 10 defendants may nevertheless escape liability if they can demonstrate that either (1) the defendant would have taken the same adverse action against the plaintiff regardless of the plaintiff s speech; or (2) the plaintiff s expression was likely to disrupt the government s activities and that the harm caused by the disruption outweighs the value of the plaintiff s expression. Skehan, 465 F.3d at 106. It is clear that Looney suffered an adverse employment 11 action in this case, and Looney has adequately alleged in his complaint that his speech 12 motivated the defendants decision to reduce his compensation and benefits.4 As a result, the 13 critical questions are whether Looney was speaking on a matter of public concern and whether 14 he was speaking as a private citizen or pursuant to his official duties. 15 As to the first question regarding the content of the statements, Looney s factual 16 allegations sufficiently indicate that he was speaking on a matter of public concern. The 17 Supreme Court has defined matters of public concern to include any matter of political, 18 social, or other concern to the community. Connick v. Myers, 461 U.S. 138, 146 (1983). 4 Looney names Black, Clark, and LaBella in his complaint on the First Amendment claim. However, his complaint alleges that First Selectman Black reduced Looney s hours without having obtained the approval of the Board of Selectmen, and that Clark and LaBella s involvement was in recommending against reappointing Looney as Building Official in retaliation for Looney s lawsuit against the Town, and then voting against reappointing him. Nonetheless, I believe that Looney has sufficiently alleged unlawful retaliation on the part of Clark and LaBella as well as Black. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977) (holding that a plaintiff may establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms ); see also Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir. 1996) (Jacobs, J., concurring) ( It is beyond question that a state agency may not discharge, refuse to rehire, fail to promote, or demote a public employee in retaliation for speaking on a matter of public concern. (citing Rutan v. Republican Party, 497 U.S. 62, 75 (1990), and Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (emphasis added)). 8 1 Whether an employee s speech addresses a matter of public concern is a question of law for the 2 court to decide, taking into account the content, form, and context of a given statement as 3 revealed by the whole record. Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999). 4 The category of issues of public concern discussed in Connick has been interpreted 5 broadly to include commenting on policy decisions affecting the public fisc, see Lewis, 165 F.3d 6 at 163-64, and raising concerns about the lawfulness of public officials actions, Hoyt v. 7 Andreucci, 433 F.3d 320, 330 (2d Cir. 2006). Here, according to his second amended complaint, 8 Looney was communicating with a Town resident regarding wood burning boiler/stove and 9 smoke discharge as public health concerns and with members of the public about an outside 10 agency enforcing a cease and desist order against Town residents. 5 These statements are 11 commentary on public health issues and regulatory enforcement actions, and thus address a 12 matter of public concern. 13 The allegations of the complaint are also sufficient to show that Looney was speaking as 14 a private citizen, rather than pursuant to [his] official duties. Ross, 693 F.3d at 305 (internal 15 quotation marks omitted). The Supreme Court defines speech made pursuant to a public 16 employee s job duties as speech that owes its existence to a public employee s professional 17 responsibilities. Garcetti, 547 U.S. at 421. The inquiry into whether speech is pursuant to 18 one s official duties is a practical one under which 19 20 21 [f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee s 5 Although the complaint does not say explicitly whether the outside agency enforcing the cease and desist order relating to smoke discharges from wood-burning stoves was a state or local agency, the complaint is clear that the order was enforced by an agency outside the one in which Looney was employed as Building Official and related to a subject matter that was not part of Looney s responsibilities. 9 1 2 3 4 5 6 written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee s professional duties for First Amendment purposes. Id. at 424-25. To determine whether speech was made pursuant to one s official job duties, it is 7 necessary to ascertain whether the speech at issue owed its existence to [the plaintiff s] job 8 duties and was made in furtherance of those duties. Ross, 693 F.3d at 308 (emphasis added). 9 In Ross, we considered whether a school district payroll clerk whose role informally included 10 reporting suspicious payroll requests to her supervisor was entitled to First Amendment 11 protections for writing letters to school board members containing allegations of financial 12 malfeasance. Id. at 302-03. We concluded that the clerk was not entitled to First Amendment 13 protection because her letters, despite being sent outside the chain of command, were written in 14 furtherance of her informal reporting duties. Id. at 308. We have also held that a teacher s 15 complaints to a school board about the inadequate discipline of a disorderly student were 16 part-and-parcel of his duties because they dealt with his ability to maintain classroom 17 discipline, which is an indispensable prerequisite to effective teaching and classroom learning. 18 Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010) (citation and internal quotation 19 marks omitted). Conversely, we concluded that First Amendment protections applied to a police 20 officer s refusal to speak about a colleague s misconduct in part because the speech did not 21 implicate [the plaintiff s] ability to do his own job properly. Jackler v. Byrne, 658 F.3d 225, 22 240 (2d Cir. 2011). 23 24 It may be that Looney s position as Building Official made it possible for him to deliver his comments to the Marlborough residents, and so the comments may have owed [their] 10 1 existence to [Looney s] job duties. Ross, 693 F.3d at 308. However, Looney s complaint 2 sufficiently alleges that his comments were not made in furtherance of his job duties either 3 formal or informal. After making the comments to a Marlborough resident, Looney alleges that 4 he was admonished by his supervisor (the Director of Planning and Development for the Town 5 of Marlborough) to restrict his actions in the office to that of his duties and not to make 6 determinations or engage in discussions of substantive matters outside his job duties concerning 7 other Town agenc[ies] or jurisdiction[s]. Looney also alleges that he was told by that 8 supervisor to stop voicing his opinion regarding an outside agency enforcing a cease and desist 9 order against Town residents. It could be that a Building Official whose principal 10 responsibilities are the enforcement of the state building code would be involved as part of his 11 job with wood-burning stoves and the potential harms they pose to public health, or less likely 12 that his job involved other agencies cease and desist orders, but such a conclusion is not clear 13 on the basis of the pleadings alone. Indeed, Looney s allegations indicate that, at the very least, 14 the Town s Planning and Development Director believed Looney s comments fell outside his 15 official job duties. In the absence of evidence to the contrary, I do not believe that the 16 defendants are entitled to qualified immunity on Looney s speech claim at this stage. 17 The defendants could be entitled to qualified immunity by demonstrating that Looney s 18 statements were likely to disrupt the government s activities and that the harm caused by the 19 disruption outweighs the value of [Looney s] expression. Skehan, 465 F.3d at 106. For 20 instance, the defendants could demonstrate that Looney s comments were encouraging 21 Marlborough residents not to comply with other local regulations. The defendants could also 22 demonstrate that Looney occupied an executive or policymaking position whose expressive 11 1 activities . . . will be more disruptive to the operation of the workplace than similar activity by a 2 low level employee. Faghri v. Univ. of Conn., 621 F.3d 92, 98 (2d Cir. 2010) (internal 3 quotation marks omitted). But I do not believe Fahgri reaches so far as to inhibit lower-level 4 officials, such as Looney, from being able to publicly challenge Town policies based merely on 5 the allegations presented here. As a result, I conclude that dismissing Looney s First 6 Amendment claim at this stage is premature. 7 8 * * * Looney s complaint contains sufficient allegations to withstand dismissal on the basis of 9 qualified immunity. On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil 10 Procedure, we must construe the complaint liberally, accepting all factual allegations in the 11 complaint as true, and drawing all reasonable inference in the plaintiff s favor. McGarry v. 12 Pallito, 687 F.3d 505, 510 (2d Cir. 2012) (internal quotation marks omitted). Because Looney 13 has sufficiently alleged a constitutionally protected interest in his status as a full-time employee 14 and has adequately alleged that his speech was entitled to First Amendment protections, I 15 conclude that finding the defendants are entitled to qualified immunity would be premature at 16 this time. As a result, I would affirm the district court s decision denying the motion to dismiss 17 and leave the determination of qualified immunity to another day. 12