         11-1734-cv
         Matthews v. Blumenthal 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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 24th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10
11
12
13       ANDREW N. MATTHEWS, Sergeant,
14
15                                     Plaintiff-Appellant,
16
17                      -v.-                                                11-1734-cv
18
19       EDWARD LYNCH, Col., CHRISTOPHER ARCIERO,
20       Major, WILLIAM PODGORSKI, Lt., THOMAS
21       DAVOREN, Col., JOHN DANNAHER, III,
22       Commander,
23
24                                     Defendants-Appellees,
25
26       RICHARD BLUMENTHAL,
27
28                                     Defendant.
29
30
31       FOR APPELLANT:                JACQUES J. PARENTEAU, Madsen, Prestley &
32                                     Parenteau, LLC, New London, Conn.
33
1    FOR APPELLEES:    JOHN P. SHEA, JR. (Zachary D. Schurin, on
2                      the brief), Sullivan, Schoen, Campane &
3                      Connon, LLC, Hartford, Conn.
4
5         Appeal from the United States District Court for the
6    District of Connecticut (Eginton, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the United States District

10   Court for the District of Connecticut be AFFIRMED.

11       Appellant appeals from a judgment of the United States

12   District Court for the District of Connecticut (Eginton,

13   J.), which granted Appellees’ motion for judgment on the

14   pleadings on Appellant’s First Amendment retaliation claim.

15   We assume the parties’ familiarity with the underlying

16   facts, the procedural history, and the issues presented for

17   review.

18       We review a judgment under Federal Rule of Civil

19   Procedure 12(c) de novo, accepting the complaint’s factual

20   allegations as true and drawing all reasonable inferences in

21   favor of the plaintiff.   Hayden v. Paterson, 594 F.3d 150,

22   160 (2d Cir. 2010).   To survive a Rule 12(c) motion, the

23   complaint must state a plausible claim to relief.    Id.

24       Determining whether public employee speech enjoys First

25   Amendment protection “entails two inquiries: (1) ‘whether

26   the employee spoke as a citizen on a matter of public

                                   2
1    concern’ and, if so, (2) ‘whether the relevant government

2    entity had an adequate justification for treating the

3    employee differently from any other member of the general

4    public.’”    Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d

5    Cir. 2008) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418

6    (2006)).    If the public employee was not speaking as a

7    citizen at the time of his speech, “the employee has no

8    First Amendment cause of action based on his or her

9    employer’s reaction to the speech.”    Garcetti, 547 U.S. at

10   418.

11          “‘[W]hen public employees make statements pursuant to

12   their official duties, the employees are not speaking as

13   citizens for First Amendment purposes.’”     Weintraub v. Bd.

14   of Educ. of City Sch. Dist., 593 F.3d 196, 201 (2d Cir.

15   2010) (quoting Garcetti, 547 U.S. at 421).    The inquiry into

16   whether an employee spoke pursuant to his official duties is

17   “practical.”    Jackler v. Byrne, 658 F.3d 225, 237 (2d Cir.

18   2011) (internal quotation marks omitted).    Speech is made

19   pursuant to an employee’s official duties when it “owes its

20   existence to [the employee’s] professional

21   responsibilities.”    Weintraub, 593 F.3d at 201 (internal

22   quotation marks omitted).    “[S]peech can be pursuant to a


                                    3
1    public employee’s official job duties even though it is not

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

3    or in response to a request by the employer.”     Anemone v.

4    Metro. Transp. Auth., 629 F.3d 97, 116 (2d Cir. 2011)

5    (internal quotation marks omitted).

6        The district court did not err in concluding, based on

7    the allegations in the complaint, that Appellant’s speech

8    was made pursuant to his official employment duties and not

9    as a citizen.     Appellant was an officer in the Connecticut

10   State Police Internal Affairs unit.     As such, according to

11   the complaint, he was tasked with investigating police

12   misconduct.     In the course of performing his duties, he

13   learned that the Connecticut State Police covered up officer

14   misconduct, which included the commission of crimes, driving

15   while intoxicated, and misuse of funds.     Appellant’s

16   complaint further states that he disclosed this misconduct

17   to the Connecticut Attorney General’s Office, the

18   Connecticut Auditors of Public Accounts, and the New York

19   State Police, which was tasked with investigating misconduct

20   in the Connecticut State Police.     Appellees, superior

21   officers in the Connecticut State Police, allegedly

22   retaliated against Appellant for making these disclosures.


                                     4
1        As a practical matter, Appellant’s speech was made

2    pursuant to his official duties.   Importantly, he conceded

3    at oral argument that, as an Internal Affairs officer, he

4    had a broad responsibility to investigate and report police

5    misconduct, including the misconduct alleged in the

6    complaint.   Thus, appellant’s complaints to outside agencies

7    were "part and parcel" of his ability to properly execute

8    his duties–i.e., enforce the law and effectively combat

9    police misconduct.   See, e.g., Carter v. Inc. Vill. of Oak

10   Beach, 693 F. Supp. 2d 203, 211 (E.D.N.Y. 2010), aff’d, 415

11   F. App’x 290 (2d Cir. 2011).   Appellant’s additional

12   concession at oral argument that he first reported the

13   misconduct up his chain of command further supports our

14   determination that he was acting pursuant to his employment

15   duties.

16       For the foregoing reasons, the judgment of the district

17   court is hereby AFFIRMED.   Appellees’ unopposed motion to

18   strike dated October 5, 2011, is DISMISSED as moot.

19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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