     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.




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