17-3839
Luke Weinstein v. University of Connecticut, et al.

                             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 TO 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of December, two thousand eighteen.

Present:
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges,
            PAUL A. CROTTY,
                  District Judge.*
_____________________________________

LUKE WEINSTEIN,

                           Plaintiff-Appellant,

                  v.                                                         17-3839

UNIVERSITY OF CONNECTICUT,
P. CHRISTOPHER EARLEY

                  Defendants-Appellees
_____________________________________

For Plaintiff-Appellant:                              TODD STEIGMAN, (Jacques J. Parenteau on the brief),
                                                      Madsen, Prestley & Parenteau, LLC, Hartford,
                                                      Connecticut


*
  Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting
by designation.


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For Defendants-Appellees:                  NANCY A. BROUILLET, Assistant Attorney General
                                           (Erik T. Lohr, Assistant Attorney General, on the brief),
                                           for George Jepsen, Attorney General for the State of
                                           Connecticut, Hartford, Connecticut

       Appeal from a judgment of the United States District Court for the District of Connecticut

(Eginton, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Luke Weinstein appeals from an award of summary judgment to the

former dean of the University of Connecticut’s School of Business, P. Christopher Earley, entered

on November 1, 2017, on Weinstein’s First Amendment claim of employer retaliation, brought

pursuant to 42 U.S.C. § 1983.

       We review a district court’s grant of summary judgment de novo, “resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police

Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only

when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Doninger

v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We may affirm on

any grounds supported by the record, whether or not relied upon by the district court. See Mitchell

v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       A plaintiff claiming First Amendment retaliation must make a prima facie showing of (1)

constitutionally protected speech, (2) an adverse action, and (3) a causal connection between that

adverse action and the protected speech. Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir.

2015). The doctrine in this area balances two important interests: “Government employers, like


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private employers, need a significant degree of control over their employees’ words and actions,”

and yet, “public employees do not surrender all their First Amendment rights by reason of their

employment.” Garcetti v. Ceballos, 547 U.S. 410, 417-18 (2006).

       Weinstein asserts that the district court erred in holding that a labor grievance he filed with

the University was not protected speech. He also claims that the district court improperly decided

disputed issues of fact in applying the Pickering interest-balancing framework, see Pickering v.

Board of Education, 391 U.S. 563 (1968), and in holding that Earley was entitled to the Mount

Healthy defense. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). We

need not decide these issues, however, because we conclude that Earley is entitled to qualified

immunity.

       Under the doctrine of qualified immunity, government officials, such as school

administrators, “are shielded from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is “clearly established” if

“it would be clear to a reasonable person in the position of the defendant that his conduct was

unlawful in the situation he confronted.” Colvin v. Keen, 900 F.3d 63, 75 (2d Cir. 2018) (quoting

Saucier v. Katz, 533 U.S. 194, 202 (2001) (alterations omitted)). We do not “define clearly

established law at a high level of generality.” City of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76

(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, clearly established law

must be “particularized” to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

A court need not rely on a “case directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741.




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       We conclude that qualified immunity is appropriate here. “Whether speech by a public

employee is protected from retaliation under the First Amendment begins with this question:

‘whether the employee spoke as a citizen on a matter of public concern.’” Huth v. Haslun, 598

F.3d 70, 73-74 (2d Cir. 2010) (quoting Garcetti, 547 U.S. at 418). Weinstein alleges that he

engaged in protected speech both when he brought a complaint to the University’s Director of

Compliance concerning Earley’s allegedly nepotistic behavior and when he filed a labor grievance

with the University. Given the “specific facts and context” of Weinstein’s comments, Doninger,

642 F.3d at 351 (quoting Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007)), it was objectively

reasonable for Earley to believe he could decide not to reappoint Weinstein as Assistant Professor

in Resident without violating Weinstein’s First Amendment rights.

       At the time the University decided not to reappoint Weinstein (2011), our case law

indicated that for speech to be on a matter of public concern it should have “a broader public

purpose” and not be merely “calculated to redress personal grievances.” Reuland v. Hynes, 460

F.3d 409, 417 (2d Cir. 2006) (quotation omitted). By contrast, Weinstein’s complaints were

“personal in nature and generally related to [his] own situation,” and did not expose “pervasive or

systemic misconduct by a public agency.” Huth, 598 F.3d at 74–75 (quotation omitted). Weinstein

made his first nepotism allegations while disputing changes being made to the University’s

Innovation Accelerator Program, and subsequently when contesting the University’s handling of

his reappointment. In both instances, his speech was focused on the private matter of his

employment, which is not a matter of public concern. See Lewis v. Cowen, 165 F.3d 154, 164 (2d

Cir. 1999) accord Ezekwo v. N.Y. City Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991).

Although a speaker’s motive is not “dispositive” for the public concern inquiry, Sousa v. Roque,

578 F.3d 164, 169 (2d Cir. 2009), given the context of Weinstein’s comments, at a minimum,


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officials “‘of reasonable competence could disagree’ on” whether Weinstein’s speech was

protected by the First Amendment. Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In such circumstances the Defendant-

Appellee Earley is entitled to qualified immunity.

       We have considered Weinstein’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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