11-3097-cv
Kiehle v. County of Cortland
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of July, two thousand twelve.
PRESENT: RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.
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KRISTINA KIEHLE,
Plaintiff-Appellant,
-v.- 11-3097-cv
COUNTY OF CORTLAND, KRISTEN MONROE, sued
in her individual capacity, MAUREEN
SPANN, sued in her individual capacity,
TIFFANY PARKER, sued in her individual
capacity,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: STEPHEN BERGSTEIN, Bergstein &
Ullrich, LLP, Chester, New York
(Matthew E. Bergeron, Satter &
Andrews, LLP, Syracuse, New York,
James Francis Barna, The Barna Law
Firm, Fayetteville, New York, on
the brief).
FOR DEFENDANTS-APPELLEES: DONALD S. THOMSON, Davidson &
O'Mara, P.C., Elmira, New York.
Appeal from a judgment of the United States District
Court for the Northern District of New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Kristina Kiehle appeals from the
district court's judgment entered on July 8, 2011, pursuant to
its decision and order dated July 8, 2011, granting summary
judgment to defendants-appellees, the County of Cortland and
three employees of the Cortland County Department of Social
Services ("DSS"). We assume the parties' familiarity with the
underlying facts, the procedural history, and the issues
presented for review.
Kiehle sued defendants for retaliatory termination in
violation of her First Amendment rights when she was discharged
as a probationary DSS caseworker after testifying at a New York
State Family Court ("Family Court") hearing. "A public employee
claiming First Amendment retaliation must demonstrate that: (1)
[her] speech addressed a matter of public concern, (2) [s]he
suffered an adverse employment action, and (3) a causal
connection existed between the speech and the adverse employment
action" such that "speech was a motivating factor in the
determination." Feingold v. New York, 366 F.3d 138, 160 (2d Cir.
2004) (internal quotation marks omitted).
Upon de novo review, we conclude that the district
court did not err in granting summary judgment to defendants.
See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d
Cir. 2003).
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On August 18, 2008, at the Family Court hearing, Kiehle
testified that the Family Court petitioner -- a mother seeking to
re-obtain custody of her daughter -- was able to adequately
supervise, and was not neglectful of, her children. Kiehle
recommended that the child be returned to the mother. Kiehle's
testimony was offered voluntarily, for the petitioner, without a
subpoena. When she took the stand, Kiehle introduced herself as
a DSS caseworker, and her conclusions were based on information
she obtained during the course of her public employment.
Further, while taking a position in her testimony that was
contrary to DSS's position in the proceeding, Kiehle did not
distinguish her personal views from those of DSS.
Hence, as the district court concluded based on the
indisputable facts, Kiehle did not testify as a private citizen
on a matter of public concern at the Family Court hearing;
rather, she testified as a government employee -- as a DSS
caseworker. "[W]hen public employees make statements pursuant to
their official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline."
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, the
district court did not err in granting summary judgment to
defendants.
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We have considered plaintiff's remaining arguments and
find them to be without merit. Accordingly, we hereby AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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