Ross v. Lichtenfeld

10-5275
Ross v. Lichtenfeld

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 August Term 2012

5 (Submitted: January 17, 2012 Decided: September 10, 2012)

6 Docket No. 10-5275-cv

7 -----------------------------------------------------x
8
9 RISA A. ROSS,
10
11 Plaintiff-Appellee,
12
13 -- v. --
14
15 PETER F. BRESLIN, EVE HUNDT, MICHAEL GORDON, FELYCIA SUGARMAN,
16 DONNA WALSH, BRUCE PAVALOW, WARREN SCHLOAT, BOARD OF EDUCATION OF
17 THE KATONAH-LEWISBORO UNION FREE SCHOOL DISTRICT, KATONAH-
18 LEWISBORO UNION FREE SCHOOL DISTRICT, KEVIN SHELDON,
19
20 Defendants,
21
22 ROBERT LICHTENFELD,
23
24 Defendant-Appellant.
25
26
27 -----------------------------------------------------x
28
29 B e f o r e : WALKER, LEVAL, and POOLER, Circuit Judges.
30 Defendant-appellant Robert Lichtenfeld appeals from an order

31 of the United States District Court for the Southern District of

32 New York (William G. Young, Judge) denying Lichtenfeld’s motion

33 for summary judgment with regard to plaintiff-appellee’s claim

1
 1 that she was fired in retaliation for her reports of financial

2 malfeasance. We conclude that plaintiff-appellee was speaking

3 pursuant to her official duties as a public employee and her

4 speech was therefore not protected by the First Amendment.

5 Accordingly, we hold that defendant-appellant is entitled to

6 summary judgment. REVERSED.

7

8 JONATHAN LOVETT, Law Office of
9 Jonathan Lovett, Hawthorne, New
10 York, for Plaintiff-Appellee.
11
12 RONDIENE E. NOVITZ, Cruser,
13 Mitchell & Novitz, LLP, Melville,
14 New York, for Defendant-Appellant.
15
16 JOHN M. WALKER, JR., Circuit Judge:

17 This appeal requires us to determine whether plaintiff-

18 appellee Risa A. Ross (“Ross”) was speaking pursuant to her

19 official duties as a payroll clerk typist for the Katonah-

20 Lewisboro Union Free School District (“the District”) when she

21 reported financial malfeasance to defendant-appellant Robert

22 Lichtenfeld (“Lichtenfeld”), the District’s Superintendent, and

23 to the Katonah-Lewisboro Board of Education (“the Board”). The

24 United States District Court for the Southern District of New

25 York (William G. Young, Judge) held that Ross was speaking as a

26 private citizen and that her First Amendment retaliation claim

27 could proceed to trial. We disagree. We conclude that Ross’s

28 complaints were made pursuant to her official duties and
2
 1 therefore were not protected by the First Amendment. See

2 Garcetti v. Ceballos, 547 U.S. 410 (2006). Accordingly,

3 Lichtenfeld is entitled to summary judgment on Ross’s First

4 Amendment retaliation claim.

5

6 BACKGROUND

7 When reviewing an interlocutory appeal from a denial of a

8 motion for summary judgment, we resolve all factual disputes in

9 favor of the non-movant. Droz v. McCadden, 580 F.3d 106, 108 (2d

10 Cir. 2009). In 1998, Ross was hired by the District as a payroll

11 clerk typist. Her immediate supervisor was Margaret Taylor.

12 Lichtenfeld was, at all relevant times, the District’s

13 Superintendent. Ross testified that her job duties were:

14 To process biweekly payrolls for approximately 800
15 people, transmit direct deposit, [and] mail out [checks
16 relating to other payments, such as taxes and
17 garnishments,] . . . . getting the pay reqs.
18 [requisitions] . . . and processing, making sure that
19 the pay rates were correct, making sure that the totals
20 were correct, and verifying. If there was a mistake
21 with a pay req., bringing it to the appropriate
22 person’s attention.
23 . . . .
24 If it was a mistake that I felt was a mistake, I would
25 bring it to the person’s attention. . . . If there was
26 a pay req. that I disagreed with and I had questions
27 about . . . .
28 . . .
29 I brought – a lot of them I brought to Bob
30 [Lichtenfeld]’s attention that I didn’t think were
31 appropriate.
32

3
 1 Ross Deposition 64-65. Ross’s job required her to know the

2 current salary of each district employee.

3 Between May 2003 and July 2006, Ross met with Lichtenfeld on

4 numerous occasions to express concern over payments she believed

5 to be improper. At their first meeting in May 2003, Ross

6 informed Lichtenfeld that Howard “Lee” Turner, a District

7 courier, had forged his supervisor’s signature to obtain

8 additional pay. Ross played voicemails for Lichtenfeld in which

9 a supervisor told her to forget about Turner’s actions and not

10 say anything. Lichtenfeld informed the Board of Turner’s

11 forgery. Turner voluntarily resigned to avoid disciplinary

12 action and received compensation for his accrued vacation time

13 and two months of continued health insurance.

14 On February 10, 2004, Ross again met with Lichtenfeld to

15 tell him that John Thibdeau, the director of administrative

16 services, was retaliating against her for questioning improper

17 payments he had approved and for an incident involving Lisa Kor.

18 At this meeting, Ross gave Lichtenfeld documentation of some of

19 these disbursements. When Lichtenfeld looked at the

20 documentation, he said something to the effect of: “Oh, my God.

21 This is worse than the Enron scandal. If taxpayers find out

22 heads will spin.” Ross Deposition 119. Following this meeting,

23 Ross continued to meet with Lichtenfeld about similar complaints.

4
 1 Ross’s complaints primarily concerned improper disbursements

2 which she believed were made without the required Board approval

3 based on her review of Board meeting agendas. She had been told

4 by Lichtenfeld that “Board action people” (individuals not under

5 contract who must be annually approved by the Board) were not

6 entitled to overtime. She approached Lichtenfeld with examples

7 of Board action people who were receiving overtime pay without

8 Board approval. Similarly, Lichtenfeld told Ross that it was

9 illegal to give out bonuses or performance awards without Board

10 approval. Ross complained of numerous performance awards,

11 bonuses, stipends, at least one longevity payment, and other

12 miscellaneous disbursements all of which she believed were made

13 without the necessary Board approval. In a separate incident,

14 Ross complained that Lichtenfeld had spent $500 of District funds

15 to buy chocolates for a gift.

16 In October 2005, the District hired Renee Gargano

17 (“Gargano”) as an outside consultant to help resolve

18 interpersonal problems among the staff. Gargano was at all

19 relevant times Deputy Superintendent of the Putnam/Northern

20 Westchester BOCES (“Putnam”), a nearby school district. Upon

21 viewing a list of employees, Gargano recognized Ross’s name and

22 informed Lichtenfeld that Ross had previously been employed by

23 Putnam. Gargano did not recall having received a reference check

24 call when Ross was hired by the District. Further investigation
5
 1 revealed that Ross had failed to list her employment with – and

2 termination from – Putnam, as well as two other school districts,

3 on her employment application.

4 In January 2006, Ross met with Gargano. Ross told Gargano

5 about the improper payments she had reported to Lichtenfeld and

6 showed her the relevant documentation. Gargano took the

7 documents and said she would discuss the matter with Lichtenfeld.

8 On May 23, 2006, Ross was suspended with pay by Kevin

9 Sheldon, the District’s Assistant Business Administrator. On

10 July 21, 2006, Ross wrote a letter on her personal stationary to

11 the individual Board members outlining the concerns she had

12 raised to Lichtenfeld. The letter began: “Although I am an

13 employee of the School District, I am writing to you, . . .

14 President of the Board of Education, on a personal note out of

15 complete frustration with the District’s administration.” After

16 explaining her conversations with Lichtenfeld and noting her

17 frustration with his failure to take what she considered to be

18 appropriate action, she stated that her suspension was in

19 retaliation for reporting financial malfeasance.

20 After the Board received this letter, it convened an

21 executive session at which Lichtenfeld recommended Ross’s

22 termination. The Board voted to terminate her. It subsequently

23 learned, however, that Ross had been entitled to a pre-

24 termination hearing. It rescinded her termination and initiated
6
 1 a disciplinary hearing, which was held on August 24 and 31, 2006,

2 before Hearing Officer Joseph E. Wooley. The Hearing Officer

3 found that Ross had knowingly made false statements on her

4 application and recommended that she be terminated. On December

5 19, 2006, the Board voted unanimously to terminate Ross.

6 Ross filed this amended complaint in March 2007 claiming in

7 relevant part that her termination was a violation of her First

8 Amendment rights. Lichtenfeld moved for summary judgment. On

9 December 6, 2010, the district court granted the motion as to

10 some of Ross’s claims, but denied it with regard to her First

11 Amendment retaliation claim. Ross v. Lichtenfeld, 755 F. Supp.

12 2d 467 (S.D.N.Y. 2010). The district court concluded that

13 Lichtenfeld was not entitled to qualified immunity on that claim.

14 Id. at 479. Lichtenfeld appeals.

15

16

17 DISCUSSION

18 An interlocutory appeal from a denial of summary judgment is

19 permissible when a district court denies the defendant qualified

20 immunity. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d

21 756, 760 (2d Cir. 2003). Such an appeal is allowed only if the

22 defendant contends that he is entitled to qualified immunity

23 under the plaintiff’s version of the facts. Id. at 761. Ross

24 argues that we lack jurisdiction because this appeal is based on
7
 1 disputed facts, i.e., Lichtenfeld’s intent. However, we agree

2 with Lichtenfeld that even under Ross’s version of the facts, her

3 complaints are not entitled to First Amendment protection because

4 they were made pursuant to her job duties. Thus, Ross’s

5 jurisdictional argument is without merit.

6 We will grant summary judgment if, taking all the facts in

7 the light most favorable to the non-moving party, the defendant

8 was entitled to qualified immunity as a matter of law. Id. at

9 760-61. In general, qualified immunity shields “government

10 officials performing discretionary functions . . . from liability

11 for civil damages insofar as their conduct does not violate

12 clearly established statutory or constitutional rights of which a

13 reasonable person would have known.” Harlow v. Fitzgerald, 457

14 U.S. 800, 818 (1982). The qualified immunity inquiry can turn on

15 either of two questions: whether the complaint alleges the

16 deprivation of an actual constitutional right, or whether the

17 right was clearly established at the time of the incident. See

18 Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). A “no”

19 answer to either question requires judgment for the defendant.

20 See id. at 245; Costello v. City of Burlington, 632 F.3d 41, 51

21 (2d Cir. 2011) (Pooler, J., concurring). The district court

22 concluded that Ross had presented sufficient evidence that

23 Lichtenfeld violated her clearly established First Amendment

24 right to freedom of speech. We disagree and hold that, because
8
 1 Ross was speaking pursuant to her official duties and not as a

2 private citizen, her speech was not protected by the First

3 Amendment. Because we find that the complaint does not allege a

4 violation of a constitutional right, it is clear a fortiori that

5 the right was not clearly established at the time of the

6 incident.

7 In the First Amendment context, “the State has interests as

8 an employer in regulating the speech of its employees that differ

9 significantly from those it possesses in connection with

10 regulation of the speech of the citizenry in general.” Pickering

11 v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill.,

12 391 U.S. 563, 568 (1968). Speech by a public employee is

13 protected by the First Amendment only when the employee is

14 speaking “as a citizen . . . on a matter of public concern.”

15 Piscottano v. Murphy, 511 F.3d 247, 269-70 (2d Cir. 2007). In

16 Garcetti v. Ceballos, the Supreme Court held that “when public

17 employees make statements pursuant to their official duties, the

18 employees are not speaking as citizens for First Amendment

19 purposes, and the Constitution does not insulate their

20 communications from employer discipline.” 547 U.S. at 421. This

21 is the case even when the subject of an employee’s speech is a

22 matter of public concern. Jackler v. Byrne, 658 F.3d 225, 237

23 (2d Cir. 2011); Anemone v. Metro. Transp. Auth., 629 F.3d 97,

24 115-16 (2d Cir. 2011). Therefore, if, as a matter of law, Ross
9
 1 was speaking pursuant to her official duties, Lichtenfeld is

2 entitled to summary judgment.

3 In Garcetti, the plaintiff, Richard Ceballos, who was a

4 deputy district attorney, was asked by a defense attorney to

5 review an affidavit that had been used to obtain a search

6 warrant. Ceballos discovered significant misrepresentations in

7 the affidavit. He informed his supervisors of his discovery and

8 wrote a disposition memo recommending that the charges be

9 dismissed. He claimed that he was subsequently subjected to

10 retaliatory employment action. 547 U.S. at 413-15. The Supreme

11 Court determined that he had not been speaking as a citizen when

12 he told his supervisors about the problems with the affidavit:

13 “The controlling factor in Ceballos’ case is that his expressions

14 were made pursuant to his duties as a calendar deputy. . . .

15 Ceballos spoke as a prosecutor fulfilling a responsibility to

16 advise his supervisor about how best to proceed with a pending

17 case . . . .” Id. at 421. In short, “Ceballos wrote his

18 disposition memo because that is part of what he, as a calendar

19 deputy, was employed to do.” Id.

20 The Court further observed that “[r]estricting speech that

21 owes its existence to a public employee’s professional

22 responsibilities does not infringe any liberties the employee

23 might have enjoyed as a private citizen.” Id. at 421-22.

24 Instead, “[i]t simply reflects the exercise of employer control
10
 1 over what the employer itself has commissioned or created.” Id.

2 at 422.

3 In Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir. 2010),

4 we addressed the applicability of Garcetti to a teacher’s

5 complaints about his school administration’s failure to

6 discipline a disruptive student. After the administration failed

7 to punish a student in Weintraub’s class for throwing a book on

8 two separate occasions, Weintraub told his supervisor and co-

9 workers that he intended to file an employee grievance with his

10 union, and thereafter filed the grievance. Weintraub, 593 F.3d

11 at 198-99. Weintraub argued that his complaints were not made

12 pursuant to his official duties because they were not required by

13 his job description, school policy, or other relevant

14 regulations. Id. at 201-02. We rejected this argument, holding

15 that “under the First Amendment, speech can be ‘pursuant to’ a

16 public employee’s official job duties even though it is not

17 required by, or included in, the employee’s job description, or

18 in response to a request by the employer.” Id. at 203. We

19 emphasized that the inquiry into whether speech was made pursuant

20 to an employee’s “official duties is ‘a practical one,’” id. at

21 202 (quoting Garcetti, 547 U.S. at 424), focused on whether the

22 speech “was part-and-parcel of his concerns about his ability to

23 properly execute his duties.” Weintraub, 593 F.3d at 203

24 (internal quotation marks omitted). We further noted that
11
 1 Weintraub’s speech took the form of an employee grievance, an

2 avenue unavailable to private citizens. Id. at 203-04 (“Although

3 the lack of a citizen analogue is not dispositive in this case,

4 it does bear on the perspective of the speaker - whether the

5 public employee is speaking as a citizen . . . .” (internal

6 citation and quotation marks omitted)).

7 The inquiry into whether a public employee is speaking

8 pursuant to her official duties is not susceptible to a bright-

9 line rule. Courts must examine the nature of the plaintiff’s job

10 responsibilities, the nature of the speech, and the relationship

11 between the two. See id. at 201-02. Other contextual factors,

12 such as whether the complaint was also conveyed to the public,

13 may properly influence a court’s decision. See id. at 205.

14 In this case, Ross alleges three instances of protected

15 speech: her reports to Lichtenfeld about improper payments and

16 promotions, her statements to Gargano about the same issues, and

17 her letter to the Board members. The district court concluded

18 that the statements to Gargano were not protected because they

19 were in the nature of an employee grievance, but that Ross’s

20 statements to Lichtenfeld and her letter to the Board were

21 entitled to First Amendment protection because in those

22 instances, in the district court’s view, she was speaking on a

23 matter of public concern, she went outside the chain of command,

24 and her complaints were not in the nature of an employee
12
 1 grievance. Ross, 755 F. Supp. 2d at 474-75. Lichtenfeld

2 contends that, although Ross’s speech was on a matter of public

3 concern, it was made pursuant to her duties as a payroll clerk

4 typist and is therefore not protected by the First Amendment. We

5 agree.

6 Ross testified that her job duties included processing the

7 payroll and making sure pay rates were correct. She stated that

8 if there was a mistake with a pay requisition, her duty was to

9 “bring[] it to the appropriate person’s attention.” Ross

10 Deposition 64. She specifically noted that she brought many such

11 requisitions to Lichtenfeld’s attention. Id. at 65. Ross

12 learned that overtime for Board action people and performance

13 bonuses without Board approval – the cause of most of her

14 individualized complaints – were improper because she was told so

15 by Lichtenfeld and her supervisor. Id. at 89, 95-97. She

16 further stated that she was not able to balance out the payroll

17 without knowing whether certain payments had been approved by the

18 Board. Id. at 100-01. Ross attempts to downplay the importance

19 of her role in the District’s payroll system, noting that

20 descriptions of her job consistently refer to it as “clerical.”

21 Appellee’s Br. at 19. However, “[f]ormal job descriptions often

22 bear little resemblance to the duties an employee actually is

23 expected to perform.” Garcetti, 547 U.S. at 424-25.

13
 1 Ross’s testimony makes plain that reporting pay

2 irregularities to a supervisor was one of her job duties. She

3 admitted that her responsibilities included reporting mistakes to

4 supervisors. Moreover, she acquired all of the information she

5 relayed to Lichtenfeld in the ordinary course of performing her

6 work, and she was not able to meet her responsibility of

7 balancing the payroll without resolving pay requisition

8 irregularities on at least one occasion. Her reports to

9 Lichtenfeld were part and parcel of her official

10 responsibilities.

11 Ross urges that she was speaking as a private citizen

12 because she went outside the chain of command by first bringing

13 her concerns to Lichtenfeld instead of her supervisor and then by

14 writing to the Board. However, Ross testified that her duties

15 included bringing payroll irregularities “to the appropriate

16 person’s attention,” and went on to say that she frequently

17 brought such issues to Lichtenfeld, implying that reporting to

18 Lichtenfeld as “the appropriate person” was within the purview of

19 her job duties. Ross Deposition 64-65. Moreover, Ross brought

20 her concerns to Lichtenfeld because she believed her supervisor

21 was ignoring them; and she similarly wrote to the Board only when

22 she believed that Lichtenfeld was not acting on her complaints.

23 Taking a complaint up the chain of command to find someone who

24 will take it seriously “does not, without more, transform [her]
14
 1 speech into protected speech made as a private citizen.”

2 Anemone, 629 F.3d at 116.

3 Ross’s assertion in her letter that she was writing “on a

4 personal note” rather than as a District employee does not alter

5 our conclusion. An employee’s characterization of her own speech

6 is not dispositive.

7 Because Ross never attempted to communicate her complaints

8 to the public, she cannot avail herself of the argument that her

9 duties in no way included public revelation of misconduct of

10 district officials that is generally available to the employee

11 who takes the issue public. Cf. Weintraub, 593 F.3d at 205

12 (where the plaintiff had no such argument as he never

13 communicated with the public).

14 We emphasize that our holding that Ross’s speech was

15 unprotected does not rest on the fact that her speech was made in

16 the workplace as opposed to elsewhere. Speech to a supervisor

17 even in the workplace can be protected as that of a private

18 citizen if it is not made pursuant to the employee’s official

19 duties as an employee. Courts must focus their inquiry on the

20 nature of the speech itself and its relationship to the

21 plaintiff’s job responsibilities. We also observe that

22 complaints about workplace misconduct, while they may be

23 unprotected by the First Amendment if made as part of the

24 plaintiff’s job duties, still may be protected by whistleblower
15
 1 laws or other similar employment codes. See Garcetti, 547 U.S.

2 at 425-26; Ruotolo v. City of N.Y., 514 F.3d 184, 189 n.1 (2d

3 Cir. 2008).

4 Finally, we note that this circuit’s recent holding in

5 Jackler v. Byrne, 658 F.3d 225, does not bear on our case. In

6 Jackler, the plaintiff was a probationary police officer who

7 allegedly witnessed the use of excessive force against a suspect

8 by a fellow officer. That suspect filed a civilian complaint

9 against the officer. At the request of his supervisor, and in

10 accordance with written police procedure, Jackler filed a report

11 corroborating the accusation of excessive force. Id. at 230-31.

12 Jackler’s supervisors pressured him to retract the report and

13 falsify his story to protect the offending officer. When Jackler

14 refused, he was not hired as a full-time officer. Id. at 231-32.

15 The panel concluded that Jackler had a cognizable First Amendment

16 claim because, when he refused to file a false report, he was

17 speaking as a citizen.

18 Jackler involved very different circumstances from this

19 case. The panel emphasized that Jackler had been asked to

20 “retract his truthful statements and make statements that were

21 false,” and determined that “his refusals to accede to those

22 demands constituted speech activity that was significantly

23 different from the mere filing of his initial Report.” Id. at

24 241. Indeed, if Jackler had made a false statement to the
16
 1 police, he would have violated New York law. Id. at 239.

2 Jackler is therefore plainly distinguishable on its facts. Ross

3 alleges that she suffered retaliation for making affirmative

4 statements of misconduct to her supervisors, not for refusing to

5 make false statements that no misconduct had occurred.

6 In this case, the speech that prompted Ross’s retaliation

7 claim owed its existence to her job duties and was made in

8 furtherance of those duties. As a payroll clerk, she was tasked

9 with reporting pay irregularities to her supervisors, and that is

10 what she did here. Accordingly, her complaints to Lichtenfeld

11 and the Board were not protected by the First Amendment, and

12 Lichtenfeld is entitled to summary judgment.

13 CONCLUSION

14 For the foregoing reasons, the judgment of the district

15 court is REVERSED.

17