Ross v. Lichtenfeld

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