20-2068
Shara v. Maine-Endwell Cent. Sch. Dist.,
United States Court of Appeals
For the Second Circuit
August Term 2020
Argued: March 15, 2021
Decided: August 18, 2022
No. 20-2068
JAMES SHARA,
Plaintiff-Appellant,
v.
MAINE-ENDWELL CENTRAL SCHOOL
DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of New York
No. 20-cv-41, Thomas J. McAvoy, Judge.
Before: POOLER, SULLIVAN, and PARK, Circuit Judges.
Plaintiff-Appellant James Shara, a former bus driver for Defendant-
Appellee Maine-Endwell Central School District (the “School District”), appeals
from the dismissal of his complaint by the United States District Court for the
Northern District of New York (McAvoy, J.). Shara contends that the School
District violated his First Amendment rights by retaliating against him for speech
he purports to have made in his capacity as a union leader. In his district-court
complaint, however, Shara merely alleged that he had argued with a School
District mechanic – and later, a few School District officials – over the frequency
with which bus safety issues should be reported. He did not allege that the School
District’s existing policy permitted unsafe buses to remain on the roads, nor did
he allege that daily reporting would improve public safety. Because the claims in
Shara’s complaint suggest nothing more than a workplace dispute between School
District employees about internal reporting protocols, we conclude that he did not
plausibly allege that he spoke as a citizen or that he spoke on a matter of public
concern. We therefore hold that Shara has failed to allege that he engaged in
speech protected under the First Amendment, and we AFFIRM the district court’s
dismissal of his complaint.
Judge Pooler dissents in a separate opinion.
AFFIRMED.
RONALD R. BENJAMIN, Binghamton, NY,
for Plaintiff-Appellant.
ANGELO D. CATALANO, Coughlin &
Gerhart, LLP, Binghamton, NY, for
Defendant-Appellee.
RICHARD J. SULLIVAN, Circuit Judge:
Plaintiff-Appellant James Shara, a former bus driver for Defendant-
Appellee Maine-Endwell School District (the “School District”), appeals from the
dismissal of his complaint (the “Complaint”) by the district court (McAvoy, J.). In
the Complaint, Shara alleged that the School District suspended and ultimately
terminated him for arguing with a School District mechanic – and later with School
District officials – over the frequency with which bus inspection results should be
reported. This, he argues, infringed his right to engage in speech protected by the
First Amendment. But “when public employees make statements pursuant to
their official duties, . . . the Constitution does not insulate their communications
2
from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). “Rather,
the First Amendment protects a public employee’s right, in certain circumstances,
to speak as a citizen addressing matters of public concern.” Id. at 417 (emphasis
added).
Here, the specific details provided in the Complaint suggest that Shara’s
arguments with fellow School District personnel were had in his capacity as a
School District employee, not as a private citizen. Shara’s primary argument to
the contrary boils down to a series of (largely conclusory) assertions that he was
speaking in his capacity as a union official. But even assuming these assertions
are “entitled to be assumed true,” cf. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009), our
Court has expressly rejected any “categorical[]” rule “that when a person speaks
in his capacity as a union member, he speaks as a private citizen,” Montero v. City
of Yonkers, 890 F.3d 386, 399 (2d Cir. 2018). Likewise, while Shara now argues that
his arguments with co-workers addressed matters of public concern insofar as bus-
inspection reporting implicates the safety of all children riding the buses, he never
alleged in his Complaint that the School District’s preferred reporting policy
resulted in unsafe conditions or that his proposal of daily reporting would have
improved safety.
3
Accordingly, we conclude that Shara’s Complaint does not support a
plausible inference that he spoke as a citizen, or that he spoke on a matter of public
concern. Because Shara has failed to establish that he engaged in protected speech,
he cannot make out a prima facie case of First Amendment retaliation. We
therefore AFFIRM the district court’s dismissal of Shara’s Complaint.
I. Background
According to his Complaint, Shara was employed as a bus driver by the
School District from June 2016 to January 2019. After he was elected Vice President
of the bus drivers’ union in May 2018, Shara began raising concerns, purportedly
on behalf of union members, about matters including bus safety.
In October 2018, Shara spoke with Doug Miller, a transportation mechanic
for the School District, about “safety issues” with two specific buses that had failed
inspection. J. App’x at 18. In the discussions that ensued, the pair disagreed about
the frequency with which the safety issues should be reported, with Shara insisting
that the issues “be reported on a daily basis until corrected,” and Miller
maintaining that they “only need[ed] to be reported one time.” Id. Ultimately, the
disagreement was resolved by Mike Aubel, the School District’s Director of
Auxiliary Services, who agreed with Miller on the reporting protocol.
4
Nevertheless, Shara continued to raise the issue of reporting procedures over the
following weeks, allegedly “acting solely in his role as Vice President of the Union
with respect to safety issues and reporting requirements.” Id. Nowhere in his
Complaint, however, did Shara allege that unsafe buses were permitted on the
road; that his preferred method of daily reporting would have resulted in faster,
cheaper, or more effective repairs; or that he ever asserted as much in any of his
conversations with Miller or Aubel.
After Shara refused to abide by Aubel’s decision, the School District’s
Director of Personnel Relations, Randy Ray, told Shara that he would be charged
with insubordination if he continued to insist on his preferred method of
reporting. When Shara persisted, Aubel sent Shara a counseling memorandum in
January 2019, urging him to “comply with expectations,” including in “the
discussions” he purported to be “carrying out in his capacity as Vice President of
the Union,” and warned that he could be disciplined or fired if his behavior
continued. Id. at 18–19. Three days later, Shara was placed on administrative
leave, and after another three days, he was terminated.
On January 10, 2020, Shara filed his Complaint in district court, alleging that
the School District, a public employer, had violated his First Amendment rights
5
by firing him “for engaging in activity on behalf of the Union” and “advocating
for employees [who were members] of the Union.” Id. at 19. Shara sought
compensatory damages, reinstatement, and attorney’s fees. The School District
filed a motion to dismiss, arguing that the court lacked subject-matter jurisdiction
or, alternatively, that the Complaint failed to state a claim on which relief could be
granted.
The district court dismissed Shara’s Complaint with prejudice on June 12,
2020. The court determined that it had subject-matter jurisdiction to consider
Shara’s claims but held that he had failed to state a First Amendment retaliation
claim. Specifically, the court concluded that when he argued with School District
employees about the procedures for reporting bus safety issues, Shara had not
spoken as “a private citizen on a matter of public concern” but rather as an
employee on an employment matter “pursuant to his official duties.” Id. at 8–9.
Shara timely appealed.
II. Standard of Review
We review de novo a district court’s dismissal of a complaint under Federal
Rule of Civil Procedure 12(b)(6), see Montero, 890 F.3d at 394, “accepting all factual
allegations as true and drawing all reasonable inferences in favor of the plaintiff,”
6
Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d
Cir. 2016). We need not, however, accept bare legal conclusions included in a
plaintiff’s complaint. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). To survive a
Rule 12(b)(6) motion to dismiss, a plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007), and provide more than a “formulaic recitation of the elements of a
cause of action” or “naked assertions devoid of further factual enhancement,”
Iqbal, 556 U.S. at 678 (internal quotation marks and alterations omitted).
III. Applicable Law
To make out a “prima facie case of First Amendment retaliation, a plaintiff
must establish (1) that the speech or conduct at issue was protected, (2) that the
defendant took adverse action against the plaintiff, and (3) that there was a causal
connection between the protected speech and the adverse action.” Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (internal quotation marks omitted). This
Court and the Supreme Court have long recognized that “the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern.” Garcetti, 547 U.S. at 417; see also Pickering v.
Bd. of Educ., 391 U.S. 563, 568 (1968); Janusaitis v. Middlebury Volunteer Fire Dep’t,
7
607 F.2d 17, 25–26 (2d Cir. 1979). So in assessing the first prong of the retaliation
test – whether a public employee’s speech is protected – we must consider “two
separate subquestions”: (1) whether the employee “spoke as a citizen rather than
solely as an employee,” and (2) whether he spoke on “a matter of public concern.”
Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (internal quotation
marks omitted). If either question is answered in the negative, our inquiry may
end there. If both questions are answered in the affirmative, we may proceed to
consider whether the employer “had an adequate justification for treating the
employee differently from any other member of the general public based on the
government’s needs as an employer.” Id. (citations omitted).
A. Citizen Speech
Turning to the first subquestion, we recognize “two relevant inquiries to
determine whether a public employee speaks as a citizen.” Montero, 890 F.3d at
397. First, courts may consider whether the employee’s speech falls outside of his
official responsibilities; second, they may ask “whether a civilian analogue” to the
employee’s speech exists. Id. (internal quotation marks omitted); see also Weintraub
v. Bd. of Educ., 593 F.3d 196, 203–04 (2d Cir. 2010) (explaining that submitting letters
to a local newspaper or discussing politics with a coworker are forms of speech
8
with civilian analogues, while an internal communication pursuant to an
employer’s dispute-resolution policy is not). While this latter inquiry “may be of
some help in determining” whether an employee speaks as a citizen, we have
emphasized that the heart of our analysis is “whether the speech at issue is itself
ordinarily within the scope of an employee’s duties.” Montero, 890 F.3d. at 397–
98.
To determine whether a public employee speaks pursuant to his official
duties, courts “examine the nature of the plaintiff’s job responsibilities, the nature
of the speech, and the relationship between the two,” along with other contextual
factors such as whether the plaintiff’s speech “was also conveyed to the public.”
Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). This objective, practical inquiry
should take into account the fact that a public employee’s speech “can be pursuant
to” his “official job duties even though it is not required by, or included in, [his]
job description, or in response to a request by the employer.” Weintraub, 593 F.3d
at 203 (internal quotation marks omitted). As this Court has previously explained,
speech may be “pursuant to” an employee’s official duties when it is “part-and-
parcel of” the employee’s concerns about his ability to properly execute his duties.
Id. (internal quotation marks omitted).
9
In performing this analysis, we find particularly instructive our prior
decisions in Montero and Weintraub. Like the present case, Montero involved a First
Amendment retaliation claim based on comments that a public employee alleged
to have made in his capacity as a union official. Montero, a police officer and vice
president of his local police union, alleged that he had suffered retaliation after he
spoke at union meetings and criticized the close relationship between the union
president and police commissioner; condemned the commissioner’s decision to
discontinue certain police units; and called for a no-confidence vote on the
commissioner’s continued tenure. Montero, 890 F.3d at 390–91. Based on its
conclusion that Montero had made these statements pursuant to his official duties,
the district court dismissed his First Amendment retaliation claims. Id. at 400.
Reversing the district court’s decision in part, we held that Montero’s criticism of
the commissioner’s choice to cut certain units and his call for a no-confidence vote
warranted First Amendment protection as statements on matters of public concern
because Montero had alleged that the termination of police units would “endanger
public safety.” Id. We also explained that, “taking the amended complaint’s
allegations as true, Montero spoke in his role as a union officer, and his union
speech was not composed of statements made as a ‘means to fulfill’ or ‘undertaken
10
in the course of performing’ his responsibilities as a police officer.” Id. at 399
(quoting Weintraub, 593 F.3d at 203). However, we specifically confined this
holding to the facts alleged and declined to hold “categorically that when a person
speaks in his capacity as a union member, he speaks as a private citizen.” Id.
In Weintraub, a public-school teacher twice reported a student to the school’s
assistant principal after the student threw books at the teacher during class. 593
F.3d at 198–99. After the assistant principal decided not to discipline the student,
the teacher – Weintraub – told other teachers at the school about the incidents and
filed a formal grievance with his union representative. Id. at 199. When Weintraub
was later fired, he brought suit alleging that school and city officials violated his
First Amendment rights by retaliating against him for complaining to others and
filing the grievance. Id. We affirmed the district court’s dismissal of Weintraub’s
claims, concluding that his speech – which Weintraub asserted concerned the
safety of students and teachers – was “part-and-parcel of his concerns about his
ability to properly execute his duties.” Id. at 203 (internal quotation marks
omitted). We explained that Weintraub’s speech concerned his ability “to
maintain classroom discipline, which is an indispensable prerequisite to effective
teaching and classroom learning.” Id. Filing a grievance about safety in his
11
classroom was thus undertaken in the performance of his “primary employment
responsibility of teaching.” Id. We observed that this analysis was bolstered by
the fact that Weintraub’s grievance through his union did not have a citizen
analogue — a relevant consideration when analyzing whether he had spoken as a
citizen. Id. Accordingly, we determined that Weintraub’s grievance was
employee speech, and thus unprotected by the First Amendment. Id. at 205.
B. Matters of Public Concern
In addition to establishing that he spoke as a citizen and not as an employee,
a plaintiff alleging a First Amendment retaliation claim must also show that he
spoke on a matter of public concern. Montero, 890 F.3d at 399. “To constitute
speech on a matter of public concern, an employee’s expression must ‘be fairly
considered as relating to any matter of political, social, or other concern to the
community.’” Id. (quoting Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011)).
“Whether speech is on a matter of public concern is a question of law” that
courts decide by “examining the content, form, and context of a given statement,
as revealed by the whole record.” Id. (internal quotation marks omitted). Courts
may consider a speaker’s motive as part of this analysis, although that factor is not
dispositive. See Golodner v. Berliner, 770 F.3d 196, 202 (2d Cir. 2014). Likewise,
12
courts may consider the forum and manner in which an employee makes a
statement. See Specht v. City of New York, 15 F.4th 594, 600 (2d Cir. 2021); Agosto v.
N.Y.C. Dep’t of Educ., 982 F.3d 86, 95 (2d Cir. 2020). While these factors are also
nondispositive, we have suggested that internal workplace complaints –
especially those “filed with an employer using an internal grievance procedure”
rather than through a channel available to the public – are rarely made “to
communicate to the public or to advance a political or social point of view beyond
the employment context.” Agosto, 982 F.3d at 95 (internal quotation marks
omitted). This is because speech does not involve a matter of public concern when
it “principally focuses on” the speaker’s personal issues or speech “that is
calculated to redress personal grievances,” even if it also incidentally “touch[es]
on a matter of general importance.” Montero, 890 F.3d at 399–400 (internal
quotation marks and citations omitted); cf. Lynch v. Ackley, 811 F.3d 569, 581 (2d
Cir. 2016) (observing that “[l]abor versus management disputes . . . often have a
strong flavor of ‘personal grievance’ notwithstanding that the personal grievance
is shared by numerous employees”).
For example, we recently held that a fire marshal’s email to colleagues about
his “take on the course of [an] investigation and his reaction to what he considered
13
inappropriate pressure from his supervisors” was not protected speech because
neither the substance nor the intended audience “suggest[ed] that [the employee]
sought to inform the public on a matter of political, social, or community interest.”
Specht, 15 F.4th at 601; see also id. (reasoning that “[i]f the email were ever released
to the public, it would convey no information other than the fact that a single
employee was upset by an incident that occurred in the workplace”). By contrast,
however, we also determined that Specht (the fire marshal) had engaged in
protected speech when he “expressed his views on the handling of the
investigation of the fire outside” of his workplace, including to the New York City
Department of Investigation, the City Comptroller’s Office, representatives of the
District Attorney’s office, and the local press. Id. We explained that in these
statements, Specht had “alleged that members of the FDNY worked to mask the
cause of a serious fire” to protect a movie production company – implicating
matters of public concern like “governmental malfeasance, public safety, . . . [and]
the public fisc.” Id. at 601–02.
Finally, although it is true that union-related speech can address a matter of
public concern, we have “rejected the notion that all activities undertaken through
a union necessarily become matters of public concern merely by virtue of their
14
collateral connection to the union.” Agosto, 982 F.3d at 97 (emphasis added)
(internal quotation marks omitted). Indeed, this Court found no public concern
where a plaintiff filed a union grievance based on management’s presence at a
union meeting, deeming it a labor-management dispute. See Lynch, 811 F.3d at
581–82. Similarly, we found no public concern where a public-school teacher
lodged several union grievances based on his manager’s alleged failures to comply
with a collective bargaining agreement and interference with union activities.
Agosto, 982 F.3d at 95–97. In contrast, we found that a plaintiff had spoken on a
matter of public concern at a union meeting when he criticized policy decisions of
the police commissioner based on his belief that the decisions “were bad for the
police force, bad for members of the [union,] and bad for the community,” and
would “endanger public safety.” Montero, 890 F.3d at 400 (internal quotation
marks omitted).
IV. Discussion
Guided by the body of precedent surveyed above, we conclude that Shara
failed to plausibly allege either (1) that his statements to School District officials
concerning bus safety reporting procedures occurred outside of his role as a school
15
bus driver, or (2) that he spoke on a matter of public concern. We will address
each part of this analysis in turn.
First, while Shara alleged that he was “involved in negotiations concerning
safety issues and other issues concerning the agreement between the [School]
District and the Union,” J. App’x at 16, and was “advocating on behalf of the Union
members with respect to issues relating to bus safety,” id. at 18, these broad
conclusions do not align with his actual description of the speech at issue. In his
Complaint, Shara merely alleged that he “convers[ed] with the [School District’s]
transportation mechanic, Doug Miller, regarding safety issues on two of the
District’s buses that failed inspection,” and that those “discussions continued” as
he insisted that “safety issues be reported on a daily basis until corrected” while
Miller and Aubel maintained “that they only need to be reported one time.” Id.
Unlike the police officer in Montero, who alleged that he had spoken out at a union
meeting against policy decisions that could affect community safety, 890 F.3d
at 391, Shara nowhere alleged that his conversations with School District officials
concerned policy decisions that affected the School District’s mission or the local
community. Rather, Shara merely asserted that he spoke in his union capacity.
But his position as an officer of the union does not transform his employment-
16
related conversations into speech as a citizen. See Lane v. Franks, 573 U.S. 228, 240
(2014) (“The critical question . . . is whether the speech at issue is itself ordinarily
within the scope of an employee’s duties.”); Montero, 890 F.3d at 399. Moreover,
the discussions detailed in Shara’s Complaint simply reflected workplace
disagreements about technical protocols for reporting bus inspection results. Cf.
Agosto, 982 F.3d at 95 (explaining that a plaintiff had “not identif[ied] how [a]
dispute . . . about an internal [collective bargaining agreement] procedure for
altering teachers’ planning periods is of political, social, or other concern to the
New York City community rather than an internal dispute of interest to
employees” (internal quotation marks and alterations omitted)).
We conclude that the discussions described in Shara’s Complaint were
conducted pursuant to his official work duties and constituted an “indispensable
prerequisite” to the successful completion of his role as a bus driver. See Weintraub,
593 F.3d at 203. Because these conversations were “part-and-parcel of [Shara’s]
concerns about his ability to properly execute his duties,” his speech was that of
an employee. Id. (internal quotation marks omitted). The fact that there is no
civilian analogue to this speech, since it occurred only in discussions with School
17
District officials in the workplace and possibly in the process of union
negotiations, reinforces this conclusion. See Montero, 890 F.3d at 398.
While the dissent argues that “Shara’s speech had a clear civilian analogue
because he submitted a FOIL request to the state regarding public school bus
safety inspections,” Dissent at 14, Shara’s FOIL request is a red herring for the
simple reason that it is not the speech for which he was disciplined. According to
Shara’s own Complaint, he was disciplined for the “discussions” he had with
“Miller,” “Aubel,” and “Ray.” J. App’x at 18–19. Indeed, nowhere in the
Complaint did Shara even mention his FOIL request – let alone allege that it was
what got him suspended or ultimately fired. “While we construe pleaded facts in
the light most favorable to the plaintiff, we can draw inferences based only on the
facts actually alleged, and we are not free to speculate about unpleaded facts that
might be favorable to the plaintiff.” Darby v. Greenman, 14 F.4th 124, 130 (2d
Cir. 2021). Taking Shara’s allegations at face value, it is clear that the speech for
which he was actually disciplined had no relevant civilian analogue: after all, Miller,
Aubel, and Ray hardly constitute “an ‘independent state agency’ responsible for
entertaining complaints by ‘any citizen in a democratic society regardless of his
status as a public employee.’” Jackler, 658 F.3d at 241 (quoting Weintraub, 593 F.3d
18
at 204). Furthermore, the dissent’s analysis of Shara’s FOIL request would imply
that when a public employee has been disciplined for unprotected speech, he can
generate for himself a valid First Amendment claim simply by later engaging in
protected speech on the same topic. But we have never so held, and we decline to
do so here. Accordingly, we conclude that Shara has failed to plausibly allege that
he was speaking as a private citizen in the conversations about bus-inspection
reporting that led to his termination.
Moreover, even if it could be argued that Shara’s conversations with Miller
and Aubel about bus safety reporting constituted speech in his capacity as a
private citizen, Shara’s claim would still fail since he never alleged in his
Complaint that his speech involved a matter of public concern. 1 Although Shara
now attempts to portray himself as a sort of whistleblower on bus safety, see Shara
Br. at 7–8, the allegations in his Complaint were much more pedestrian and
1To be sure, Shara argues for the first time on appeal that his discussions with Miller and Aubel
were focused on “the safety of [the] [D]istrict’s school buses carrying schoolchildren to and from
school,” and were designed to ensure that the School District “fulfill[ed] its responsibilities to
provide safe buses every day, not just some days.” Shara Br. at 14. But because such claims did
not appear in the Complaint, they are not relevant to our present analysis. See, e.g., In re Nortel
Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (“It is a well-established general rule that
an appellate court will not consider an issue raised for the first time on appeal. The law in this
Circuit is clear that where a party has shifted his position on appeal and advances arguments
available but not pressed below, waiver will bar raising the issue on appeal.” (internal citations
and alterations omitted)).
19
involved little more than an intramural dispute among school employees about
the best way to report maintenance issues involving the School District’s buses.
Nowhere in his Complaint did Shara allege that the School District’s reporting
practice permitted unsafe buses to be out on the road or that Miller and Aubel
were attempting to sweep needed bus repairs under the rug. See Specht, 15 F.4th
at 601–02. Shara simply alleged that he preferred a reporting procedure whereby
“safety issues [would] be reported on a daily basis until corrected,” while Miller
and Aubel favored a procedure that required them to be “reported one time.” J.
App’x at 18. 2
Reporting policies, even when discussed in the context of union
negotiations, generally fall into the category of workplace and union operations,
2 The dissent contends that Shara’s speech is a “paradigmatic example of speech on a matter of
public concern” because it “concerned the safety of the workplace, the safety of the Maine-
Endwell community’s schoolchildren, and the safety of other motorists whose lives might be at
risk of colliding with a school bus with faulty brakes or other mechanical issues.” Dissent at 21.
But the Complaint’s allegations about Shara’s speech speak solely to the reporting frequency of
failed bus inspections. See J. App’x at 18. They say nothing about the operation of buses after
failing inspections, much less about workplace safety or the safety of schoolchildren and other
motorists. The dissent’s extrapolation of potential downstream consequences from the actual
subject matter of Shara’s speech is not a “reasonable inference” to be drawn in Shara’s favor.
Instead, we take the relevant speech at face value as alleged by the plaintiff. See Twombly, 550 U.S.
at 562 (“[W]hen a plaintiff . . . supplies facts to support his claim, we do . . . impose[] a duty on
the courts to conjure up unpleaded facts that might turn a frivolous claim of unconstitutional
action into a substantial one . . . .” (citation and alteration omitted)); Darby, 14 F.4th at 130 (“[W]e
are not free to speculate about unpleaded facts that might be favorable to the plaintiff.”).
20
which we have declined to treat as matters of public concern. Cf. Agosto, 982 F.3d
at 95–97. So in contrast to Montero, where an officer spoke at a union meeting
about policies that “were bad for the police force, bad for members of the [union,]
and bad for the community” and would “endanger public safety,” 890 F.3d at 400,
or Matthews, where an officer complained to executive officers that an arrest quota
policy in his precinct was “damaging to the NYPD’s core mission,” 779 F.3d at 169,
Shara’s back and forth with Miller and Aubel concerning the frequency of bus
safety reports does not rise to the level of speech involving a matter of public
concern. And we will not impute to such speech a public character merely because
the employee is also a union officer. See Montero, 890 F.3d at 399.
Far from involving matters of “political, social, or other concern to the
community,” id. (citation omitted), Shara’s spat with Miller and Aubel concerned
an internal work dispute over paperwork that would not be of interest to the
public. See Specht, 15 F.4th at 600–01; Agosto, 982 F.3d at 95–97. Put differently,
while an exposé on unsafe buses might be of interest to the community at large,
internal communications that pertain solely to the protocols for reporting bus
safety inspection results are not aimed at – and would hardly be expected to attract
the attention of – reporters or members of the public. See Specht, 15 F.4th at 600–
21
02. Shara’s allegations clearly involved such internal communications, and for that
reason cannot be said to involve a matter of public concern.
V. Conclusion
For the reasons discussed above, we AFFIRM the district court’s decision.
22
POOLER, Circuit Judge, dissenting:
Are parents of students in the Maine-Endwell School District interested in
knowing that two school buses failed inspection? Is the safety of schoolchildren,
public employees, and motorists an issue the public is interested in? The answer
to these questions is obviously yes, and that should have resolved this case.
Over “50 years ago, [the Supreme] Court declared that citizens do not
surrender their First Amendment rights by accepting public employment.” Lane
v. Franks, 573 U.S. 228, 231 (2014) (citing Pickering v. Bd. of Ed. of Township High
School Dist. 205, 391 U.S. 563, 568 (1968)). Speech concerning “information related
to or learned through public employment” is protected by the First Amendment,
which “was fashioned to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people.” Id. at 236 (quoting
Roth v. United States, 354 U.S. 476, 484 (1957)). In fact, “[t]here is considerable
value. . . in encouraging, rather than inhibiting, speech by public employees.” Id.
“Government employees are often in the best position to know what ails the
agencies for which they work.” Waters v. Churchill, 511 U.S. 661, 674 (1994). “The
interest at stake is as much the public’s interest in receiving informed opinion as
it is the employee’s own right to disseminate it.” San Diego v. Roe, 543 U.S. 77, 82
1
(2004). In reconciling these principles with the government’s interest in the
efficient administration of its public services, we have devised a two-part test: “to
determine whether a public employee’s speech is constitutionally protected,
courts must determine both that the employee spoke as a private citizen and that
the speech at issue addressed a matter of public concern.” Montero v. City of
Yonkers, 890 F.3d 386, 393 (2d Cir. 2018).
The majority strays from these well-established principles of public
employee First Amendment rights. James Shara, a bus driver and union vice
president, was fired for raising concerns regarding the reporting of public school
bus safety issues. Shara spoke as a private citizen because he made these
comments outside of the scope of his official responsibilities and in the context of
his position as a union official. Shara’s comments were on a matter of public
concern because the safety of schoolchildren, public employees, and other
motorists are subjects of general interest and of value to the public.
The majority also deviates from bedrock principles of civil procedure by
failing to “draw all reasonable inferences” in Shara’s favor, as required at the
motion to dismiss stage. Lynch v. City of New York, 952 F.3d 67, 76 (2d Cir. 2020).
2
In doing so, the majority stifles discovery and prevents the court from learning
information necessary to properly resolve this dispute.
Because I believe Shara has stated a case sufficient to survive the motion to
dismiss, I respectfully dissent.
I. Factual Background
The majority leaves out the following key facts, which are set out in
Shara’s complaint and are salient as to why his First Amendment rights were
infringed. After Shara’s fall 2018 discussions about bus safety with various
members of the School District management, Randy J. Ray, director of personnel
relations for the School District, “indicated” that Shara would be charged with
insubordination. App’x at 18 ¶ 18. Joseph W. Beasley, a labor relations specialist
for the union, informed the School District that Shara could raise safety issues
during union negotiations given Shara’s position as the union’s vice president.
Matters escalated in January 2019. On January 3, Shara met with Aubel;
Miller; Jeff L’Amoreauz, assistant superintendent of schools; Darleen Fernquist,
head bus driver; Beasley; and Fred Sperry, union president. Aubel summarized
the meeting in a January 4, 2019 memorandum. Importantly, the memorandum
noted that Shara was asked if he had “received [his] FOIL Request [seeking]
3
information from Albany regarding [the School District’s] inspections during
October.” App’x at 29.
On January 7, the School District placed Shara on administrative leave.
Three days later, the School District fired him. The union filed an improper
practice charge with the New York State Public Employment Relations Board
(“PERB”), which sought, in part, Shara’s reinstatement and that the School
District “cease and desist” from actions violative of labor laws. App’x at 25. The
PERB proceeding appears not to have been yet resolved.
Shara filed this action on January 10, 2020. The School District moved to
dismiss, arguing that the action was barred by the collateral estoppel doctrine
because of the PERB proceeding and that Shara failed to state a First Amendment
retaliation claim. The district court dismissed the complaint with prejudice on
June 12, 2020. It denied the School District’s arguments based on the collateral
estoppel doctrine because PERB had not yet rendered a decision. It nonetheless
granted the motion to dismiss for failure to state a claim, concluding that Shara
failed to allege that the School District terminated him because he spoke as a
private citizen on a matter of public concern. The district court relied on Shara’s
statement in his complaint that Beasley informed the district that Shara had
4
“every right to bring up workplace concerns regarding safety issues during
[u]nion negotiations.” Shara v. Maine-Endwell Cent. Sch. Dist., No. 3:20-CV-41
(TJM/ML), 2020 WL 3128541, at *4 (N.D.N.Y. June 12, 2020) (citing App’x at 18 ¶
20). The district court characterized Shara’s complaint as one regarding “the
procedure to notify his employer about unsafe bus conditions,” and reasoned
that, “[e]ven if the speech grew partly from [Shara’s] role in the union, the speech
still addressed a matter of job performance and requirements, and not an issue
that concerned the public.” Id.
II. Public Employee Speech Under the First Amendment
In evaluating a First Amendment retaliation claim, we balance “the
interests of the [employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting the efficiency
of the public service it performs through its employees.” Pickering, 391 U.S. at
568. “It bears emphasis that our precedents dating back to Pickering have
recognized that speech by public employees on subject matter related to their
employment holds special value precisely because those employees gain
knowledge of matters of public concern through their employment.” Lane, 573
U.S. at 231.
5
In Pickering, the Supreme Court observed that “[t]eachers are . . . the
members of a community most likely to have informed and definite opinions as
to how funds allotted to the operation of the schools should be spent.
Accordingly, it is essential that they be able to speak out freely on such questions
without fear of retaliatory dismissal.” 391 U.S. at 572; see also Garcetti v. Ceballos,
547 U.S. 410, 421 (2006) (recognizing that “[t]he same is true of many other
categories of public employees”). In San Diego v. Roe, the Court again noted that
public employees “are uniquely qualified to comment” on “matters concerning
government policies that are of interest to the public at large.” 543 U.S. at 80.
A. Speech as a Private Citizen
Under the First Amendment, “a state cannot condition public employment
on a basis that infringes the employee’s constitutionally protected interest in
freedom of expression.” Connick v. Myers, 461 U.S. 138, 142 (1983). “Rather, the
First Amendment protects a public employee’s right, in certain circumstances, to
speak as a citizen addressing matters of public concern.” Garcetti, 547 U.S. at 417.
Here, Shara’s comments, taken in the light most favorable to him, are “citizen
speech” on a matter of “public concern.”
6
In Matthews, “we identified two relevant inquiries to determine whether a
public employee speaks as a citizen: (1) whether ‘the speech fall[s] outside of the
employee’s official responsibilities,’ and (2) whether ‘a civilian analogue exists.’”
Montero, 890 F.3d at 397 (quoting Matthews v. City of New York, 779 F.3d 167, 173
(2d Cir. 2015)) (alterations in original).
Official Responsibilities
In order to determine whether “speech falls outside of the employee’s
official responsibilities,” we consider “whether the employee’s speech was ‘part-
and-parcel of [the employee’s] concerns about his ability to properly execute his
duties.’” Montero, 890 F.3d at 398 (quoting Weintraub v. Bd. of Educ. of City Sch.
Dist. of N.Y., 593 F.3d 196, 203 (2d Cir. 2010)).
In Montero, a Yonkers police officer and former union vice president
appealed from the district court’s dismissal of his complaint raising a First
Amendment retaliation claim. Id. at 390. We affirmed the district court’s
dismissal on qualified immunity grounds but vacated the dismissal as to
defendant Keith Olson, the union president. Montero’s complaint alleged that
Olson retaliated against him after he criticized Olson’s close relationship to the
then-police commissioner because of that commissioner’s decision to
7
“discontinue several police units . . . [which] would adversely affect the [police
department, the union,] and the surrounding community.” Id. at 391. Montero
also called for a no-confidence vote against the police commissioner. Id. Montero
alleged that about one month after he called for the vote, the defendants
“conducted an unauthorized investigation focused on Montero’s use of overtime
slips,” which resulted in Montero’s transfer the next month to a less desirable
division. Id. at 391-92. Then, about six months after he called for the vote,
defendants “conducted a second unauthorized investigation . . . for
insubordination.” Id. at 392. Ultimately, about three years later, Montero was
expelled from the union. Id. at 392-93. In partially vacating the district court’s
dismissal, our Circuit reasoned that “Montero made his remarks as union vice
president, a role in which he was not required to serve.” Id. at 398. We concluded
that “taking the amended complaint’s allegations as true, Montero spoke in his
role as a union officer, and his union speech was not composed of statements
made as a means to fulfill or undertaken in the course of performing his
responsibilities as a police driver.” Id. (internal quotation marks omitted).
In Matthews v. City of New York, which we relied on in Montero, we
considered whether a police officer spoke as a citizen when he criticized an
8
arrest-quota policy to precinct commanders. 779 F.3d at 169. We “concluded that
Matthews’s complaints were not what he was employed to do” because he “had
no role in setting policy; he was neither expected to speak on policy nor
consulted on formulating policy,” and “ordinary citizens were also regularly
provided the opportunity to raise issues with the precinct commanders.”
Montero, 890 F.3d at 397 (quoting Matthews, 779 F.3d at 174, 176).
And in Weintraub v. Board of Education, a teacher filed a grievance through
his union regarding his school’s failure to discipline a student that assaulted him.
593 F.3d at 198-99. We concluded that Weintraub did not speak as a private
citizen because his grievance was “pursuant to his official duties because it was
part-and-parcel of his concerns . . . as a public school teacher—namely, to
maintain classroom discipline, which is an indispensable prerequisite to effective
teaching and classroom learning.” Id. at 203 (internal quotation marks omitted).
Filing a union grievance was not a “form or channel of discourse available to
non-employee citizens.” Id. at 204.
The majority concludes that Shara failed to plausibly allege that his
statements to School District officials concerning bus safety reporting occurred
outside of his role as a school bus driver. Maj. Op. at 15-16. The majority’s
9
reliance on Garcetti is misguided. There, Richard Ceballos, a police officer, was
fired for engaging in speech that was required as part of his job. See Garcetti, 547
U.S. at 421 (“The controlling factor in Ceballos’ case is that his expressions were
made pursuant to his duties as a calendar deputy.”). The majority, misapplying
Garcetti, wrongly construes Shara’s speech as that of an employee simply because
it touches on his duties. As in Garcetti, here Shara’s comments “concerned the
subject matter of [his] employment, . . . but this, too, is nondispositive.” Id. “The
First Amendment protects some expressions related to the speaker’s job.” Id. The
fact that Shara expressed his comments internally, “rather than publicly, is not
dispositive.” Id. at 420-21. “Employees in some cases may receive First
Amendment protection for expressions made at work.” Id.
Shara’s comments were made as a private citizen because they went
beyond the scope of his job duties as a bus driver. Specifically, Shara believed
that the frequency of reporting school bus mechanical issues was too low and
that such issues should have been reported more often. App’x at 18 ¶ 16 (“That
the discussions continued whereby plaintiff and Mr. Miller had disagreements
concerning the reporting of the safety issues, with the plaintiff insisting that
safety issues be reported on a daily basis until corrected and Mr. Miller and Mike
10
Aubel, Director of Auxiliary Services for the School District, asserted that they
only need to be reported one time.”). Shara’s responsibilities included reporting
whether a bus he drove was experiencing a safety issue, but his comments went
to the frequency of reporting by all bus drivers. “Such policy-oriented speech
was neither part of [Shara’s] job description nor part of the practical reality of his
everyday work.” Matthews, 779 F.3d at 174. Shara’s comments went beyond
stating he felt unsafe driving school buses with mechanical issues; instead, he
criticized a district-wide policy regarding how often mechanical issues are
reported. Shara is thus similarly situated to the plaintiff in Matthews, who “had
no role in setting policy,” because Shara was solely employed by the School
District as a bus driver. 779 F.3d at 174. Complaining of the frequency of bus
safety reporting was “not what he was employed to do,” nor “was it part-and-
parcel” of his regular job. Id.
Of course, we would have a better sense of how Shara’s speech went
beyond the scope of his official responsibilities if this case proceeded to
discovery in the regular course and we learned the day-to-day responsibilities of
school bus drivers in the Maine-Endwell School District. In Matthews, the district
court had initially granted New York City’s motion to dismiss. See Matthews v.
11
City of New York, No. 12 Civ. 1354, 2012 WL 8084831, at *1 (S.D.N.Y. Apr. 12,
2012). However, we vacated and remanded, holding that “[t]he record in this
case is not yet sufficiently developed . . . to determine as a matter of law whether
Officer Matthews spoke pursuant to his official duties when he voiced the
complaints.” Matthews v. City of New York, 488 F. App’x 532, 533 (2d Cir. 2012).
We stated that discovery was necessary as to “the nature of the plaintiff’s job
responsibilities, the nature of the speech, and the relationship between the two.”
Id. (internal quotation marks omitted).
After discovery in Matthews, the district court granted the City’s motion for
summary judgment. Matthews appealed. Presented with a fully developed
factual record, we vacated and remanded the district court’s grant of summary
judgment. In doing so, we looked to the NYPD Patrol Guide, produced during
discovery, that outlined the “Duties and Responsibilities” of police officers. See
Matthews, 779 F.3d at 171. We concluded that Matthews’ speech addressed a
“precinct-wide policy.” Id. at 174.
Here, in contrast, the record is insufficiently developed for us to
understand what Shara’s official responsibilities were. I would venture a guess
that criticizing a district-wide policy was not “part of [Shara’s] job description”
12
nor “part of the practical reality of his everyday work.” Id. So just how much of
Shara’s speech is “part-and-parcel” of the responsibilities of a public school bus
driver? Unfortunately, we cannot and will not learn the answer to that question
because the majority, instead of construing the facts in the manner most
favorable to Shara, improperly draws every inference in favor of the School
District. See Lynch, 952 F.3d at 76-77 (vacating a Rule 12(b)(6) dismissal where the
district court did not accept the plaintiff’s allegations as true).
Civilian Analogue
Speech has a “relevant civilian analogue” if it is made through “channels
available to citizens generally.” Jackler v. Byrne, 658 F.3d 225, 238 (2d Cir. 2011).
“[A]n indicium that speech by a public employee has a civilian analogue is that
the employee’s speech was to an ‘independent state agency’ responsible for
entertaining complaints by ‘any citizen in a democratic society regardless of his
status as a public employee.’” Id. at 241 (quoting Weintraub, 593 F.3d at 204).
In Garcetti, the Supreme Court provided two examples of civilian
analogues: “writing a letter to a local newspaper” and “discussing politics with a
co-worker.” 547 U.S. at 423-24. Our own precedents provide other examples. In
Jackler, we considered a police officer’s First Amendment retaliation claim where
13
the officer had been fired for refusing to retract a truthful police incident report.
658 F.3d at 234. We held that Jackler’s refusal to retract the report had a civilian
analogue because a non-employee citizen may also refuse to retract a truthful
police report. Id. at 241. In Weintraub, on the other hand, we found the teacher’s
speech unprotected in part because the “lodging of a union grievance is not a
form or channel of discourse available to non-employee citizens, as would be a
letter to the editor or a complaint to an elected representative or inspector
general.” 593 F.3d at 204. And in Matthews, we concluded that because Matthews
“did not follow internal grievance procedures, but rather went directly to the
Precinct commanders” he “chose a path that was available to ordinary citizens.”
Matthews, 779 F.3d at 175-76.
Here, Shara’s speech had a clear civilian analogue because he submitted a
FOIL request to the state regarding public school bus safety inspections. See
App’x at 28-29 (counseling memorandum stating that Shara did not answer
whether he had “received [his] FOIL Request information from Albany
regarding our inspections during October”). The majority attempts to minimize
Shara’s FOIL request. And for good reason, as a FOIL request is the epitome of a
civilian analogue. Any citizen concerned about how often school bus
14
maintenance issues were being reported could file a FOIL request seeking such
information. By filing a FOIL request, Shara “chose a path that was available to
ordinary citizens,” Matthews, 779 F.3d at 175–76, instead of solely following
internal grievance procedures. The majority counters that this approach to
Shara’s FOIL request would “imply that when a public employee has been
disciplined for unprotected speech, he can generate for himself a valid First
Amendment claim simply by later engaging in protected speech on the same
topic. Maj. Op. at 19. This concern is unwarranted because Shara engaged in the
protected speech before he was disciplined. The counseling memorandum sent to
Shara on January 4, 2019 already references his FOIL request, and he was not
placed on administrative leave until January 7. See App’x at 29.
Furthermore, Shara’s comments were made in his capacity as the union
vice president. See App’x at 17 ¶ 13 (“[S]ubsequent to May of 2018, [Shara] began
carrying out his responsibilities as Vice President of the Maine-Endwell
Transportation Association, which included numerous conversations with
School District officials in his capacity as Vice President of the Union.”); App’x at
18 ¶ 17 (“That over the next several weeks, discussions ensued with plaintiff
acting solely in his role as Vice President of the Union with respect to safety
15
issues and reporting requirements.”). In Montero, we concluded that, taking “the
amended complaint’s allegations as true,” “when Montero spoke in his capacity
as a union member, he spoke as a private citizen.” Montero, 890 F.3d at 399. We
credited Montero’s allegation that he spoke in his role as a union officer and that
his union speech was not “composed of statements made as a ‘means to fulfill’ or
‘undertaken in the course of performing’” his official responsibilities. Id.
The Supreme Court has held that when unions speak, they “speak[] for the
employees, not the employer.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., 138
S. Ct. 2448, 2474 (2018) (emphasis in original). And a number of our sister circuits
have already adopted this rule in the context of public employee speech. See
Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015) (“We . . . hold that speech in
connection with union activities is speech ‘as a citizen’ for purposes of the First
Amendment.”); Ellins v. City of Sierra Madre, 710 F.3d 1049, 1059-60 (9th Cir. 2013)
(“Given the inherent institutional conflict of interest between an employer and its
employees’ union, we conclude that a police officer does not act in furtherance of
his public duties when speaking as a representative of the police union.”); Fuerst
v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006) (“Because [an employee’s] comments
that precipitated the adverse action taken against him were made in his capacity
16
as a union representative, rather than in the course of his employment as a
deputy sheriff . . . [Garcetti] is inapposite.”).
Recently, another of our sister circuits concluded that statements made by
a bus driver, who served as union president, to a local television station while
wearing his work uniform and driving a bus on his employer’s property in the
middle of his workday were made in his capacity “as a citizen.” Bruce v.
Worcester Reg'l Transit Auth., 34 F.4th 129, 136 (1st Cir. 2022). There, Christopher
Bruce gave a television interview regarding the union’s efforts to mobilize
against budget cuts to regional transportation authorities. Id. at 133. The First
Circuit reversed the district court’s grant of summary judgment to the defendant
transportation agency because a reasonable juror could have found that Bruce
was speaking to the television station “in his capacity as a union president.” Id. at
138. The First Circuit noted it was not dispositive that Bruce “was interviewed in
uniform, while driving a bus on [his employer’s] property in the middle of his
workday” because “Garcetti is clear in holding that there is a distinction between
speech made ‘pursuant to [an employee’s] official duties’ and speech made ‘at
work.’” Id. at 137 (quoting Garcetti, 547 U.S. at 420-21). Moreover, the First Circuit
concluded, “the fact that the [television network] was seeking comments from
17
[transit authority] drivers in their role as drivers” did not suffice to show that
Bruce himself was speaking in that capacity rather than in his capacity as a union
president. Id. at 138.
Here, the majority errs in failing to take as true Shara’s allegation that he
spoke in his role as a union officer. See Maj. Op. at 16 (“First, while Shara alleged
that he was ‘involved in negotiations concerning safety issues and other issues
concerning the agreement between the [School] District and the Union,’ and was
‘advocating on behalf of the Union members with respect to issues relating to
bus safety,’ these broad conclusions do not align with his actual description of
the speech at issue.” (citations omitted)). Instead, the majority improperly creates
a new hurdle for similarly-situated plaintiffs by concluding that Shara’s
complaint was insufficient because it failed to include the magic words that his
conversations with officials “concerned policy decisions that affected the School
District’s mission or the local community.” Maj. Op. at 16. It does not require
much of a logical leap to infer that discussions regarding school bus safety
between a union official and school district officials implicate the School
District’s mission of caring for the safety of its public employees and
schoolchildren or the community’s interest in the same. See, infra, section II.B.
18
Shara’s position as a union official and his allegations that he “act[ed] solely in
his role as Vice President of the Union” strongly supports an inference that Shara
was speaking on an issue broader than one “ordinarily within the scope of [his]
employee[] duties.” Lane, 573 U.S. at 240.
B. Public Concern
The majority’s gravest error, however, lies in its conclusion that Shara’s
speech was not on a matter of public concern. Speech involves a matter of public
concern “when it can ‘be fairly considered as relating to any matter of political,
social, or other concern to the community,’ or when it ‘is a subject of legitimate
news interest; that is, a subject of general interest and of value and concern to the
public.’” Id. at 241 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). “The
inquiry turns on the ‘content, form, and context’ of the speech.” Id. at 241
(quoting Connick, 461 U.S. at 147-48).
“The fact that a statement was made to the employer in private is not
determinative of whether its subject was a matter of public concern.” Jackler, 658
F.3d at 236. “To constitute speech on a matter of public concern, an employee’s
expression must ‘be fairly considered as relating to any matter of political, social,
or other concern to the community.’” Id. (quoting Connick, 461 U.S. at 146).
19
“Speech that, although touching on a topic of general importance, primarily
concerns an issue that is personal in nature and generally related to [the
speaker’s] own situation, such as his or her assignments, promotion, or salary,
does not address matters of public concern.” Id. at 236 (internal quotation marks
and citations omitted).
Shara’s comments were clearly on a matter of public concern. Shara was
concerned with the frequency of reporting safety issues regarding the School
District’s buses used to transport schoolchildren. See App’x at 18 ¶¶ 15-17.
Shara’s speech began on October 26, 2018, when he discussed safety issues with
Miller, regarding “two of the District’s buses that failed inspection.” App’x at 18
¶ 15. Those discussions regarding the frequency of reporting safety issues
continued, “with [Shara] insisting that safety issues be reported on a daily basis
until corrected and [Miller] and [Aubel] assert[ing] that they only need to be
reported one time.” App’x at 18 ¶ 16. Further, a labor relations specialist working
with the union told the School District contemporaneously that Shara “had every
right to bring up workplace concerns regarding safety issues.” App’x at 18 ¶ 20.
We have held that the safety of public employees is, indeed, a matter of
public concern. See, e.g., Munafo v. Metro. Transp. Auth., 285 F.3d 201, 212 (2d Cir.
20
2002) (“[S]afety in the workplace is a matter of public concern.”). Common sense
dictates that Shara’s speech concerned the safety of the workplace, the safety of
the Maine-Endwell community’s schoolchildren, and the safety of other
motorists whose lives might be at risk of colliding with a school bus with faulty
brakes or other mechanical issues, such as the two buses that had already failed
inspection. Surely speech on such a topic is the paradigmatic example of speech
on a matter of public concern. See Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Ed.,
444 F.3d 158, 164 (2d Cir. 2006) (“[T]he possible insufficiencies of the school’s
response implicate the health, welfare and safety of young students, all of which
are matters of importance to the public.”).
The majority inexplicably does not think so. Instead, the majority argues
that Shara failed to “allege that the School District’s reporting practice permitted
unsafe buses to be out on the road or that Miller and Aubel were attempting to
sweep needed bus repairs under the rug.” Maj. Op. at 20. Not so. Shara’s
complaint specifically alleges that the discussions with Miller involved “safety
issues on two of the District’s buses that failed inspection.” App’x at 18 ¶ 15.
Shara alleges he “insist[ed] that safety issues be reported on a daily basis until
corrected.” App’x at 18 ¶ 16. Again, the majority faults Shara for not including
21
magic words it prefers. But the only way to read Shara’s allegations regarding
safety issues on buses that failed inspection is to conclude that such buses were
indeed “out on the road,” and that in not reporting problems daily until
corrected, district officials were “attempting to sweep needed bus repairs under
the rug.” An issue reported only once is far more likely to fly under the radar
than one that is reported daily. Shara’s request that bus safety issues be reported
daily indicates that his concern was on buses that failed safety inspections but
continued to be used to transport schoolchildren and public employees.
The majority continues its improper practice of drawing inferences against
Shara when it states that “Shara’s spat with Miller and Aubel concerned an
internal work dispute over paperwork that would not be of interest to the
public.” Maj. Op. at 21. The majority conjures a “paperwork” dispute out of thin
air. There is no allegation in the complaint that Shara was concerned about
paperwork. In fact, the majority’s position is nonsensical: if the district adopted
Shara’s preferred policy that bus safety issues be reported daily, that would
create more “paperwork” for himself and his fellow drivers, not less. “To
identify matters of public concern, ‘we consider the motive of the speaker.’”
Specht v. City of New York, 15 F.4th 594, 600 (2d Cir. 2021) (quoting Golodner v.
22
Berliner, 770 F.3d 196, 203 (2d Cir. 2014)). Typically, employees do not seek more
work from management, so Shara’s “motive” in requesting that bus safety issues
be reported more frequently is another indication that he was actually concerned
with the presence of unsafe buses on public roads. Similarly, it does not follow
that Shara resorted to filing a FOIL request over an internal workplace dispute.
Instead, Shara’s FOIL request also supports an inference that he was speaking on
a matter of public concern. Regardless, any workplace tension between Shara
and Miller and Aubel does not transform Shara’s speech into an ordinary
workplace dispute because “an individual motivated by a personal grievance can
simultaneously speak on a matter affecting the public at large.” Id.
Finally, the majority makes a confusing point that “an exposé on unsafe
buses might be of interest to the community at large,” but “internal
communications that pertain solely to the protocols for reporting bus safety
inspection results are not aimed at – and would hardly be expected to attract the
attention of – reporters or members of the public.” Maj. Op. at 21-22. If the fact
that two of the School District’s buses failed safety inspections but potentially
remained in use transporting schoolchildren is not “an exposé on unsafe buses,”
then I am not sure what is. The majority assumes, without any basis in the
23
limited record before us, that the public would not be interested to know that
two buses failed safety inspections or the process by which the School District
manages its equipment responsible for carrying children to and from school. I
think the opposite far more likely. But in any event, assuming the public would
not be interested is hardly an appropriate basis to support dismissal when the
procedural posture demands all facts and inferences be construed in Shara’s
favor.
Drawing all inferences in Shara’s favor, as we must, his complaint clearly
asserts that he was speaking out on matters of public safety: the quintessential
matter of public concern. As aptly stated in Munafo: “If one needed to consult
more than common sense, one would need look no farther than the existence of
laws such as the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et.
seq. (1994), and similar state laws, see, e.g., N.Y. Lab. Law § 202 et seq. (McKinney
Supp. 2001), to recognize that safety in the workplace is a matter of public
concern.” Munafo, 285 F.3d at 212.
For the reasons given above, I respectfully dissent.
24