     11-70-cv
     Kaplan v. Crisafi


                          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 16th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    RALPH K. WINTER,
10                    REENA RAGGI,
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       Matthew D’Olimpio,
15                Plaintiff,
16
17       Michael Kaplan,
18                Plaintiff-Appellant,
19
20                    -v.-                                               11-70-cv
21
22       Louis Crisafi, in his individual
23       capacity; Brendan Vallely, in his
24       individual capacity; Thomas
25       D'Amicantonio, in his individual
26       capacity; James Giglio, in his
27       individual capacity; Michael Moffett,
28       in his individual capacity; Paul
29       Nadel, in his individual capacity;
30       Jennifer Treacy, in her individual
31       capacity; Kenneth Post, in his

                                                  1
 1   individual capacity; Timothy Dewey, in
 2   his individual capacity,
 3            Defendants-Appellees.
 4   - - - - - - - - - - - - - - - - - - - -X
 5
 6   FOR PLAINTIFF-APPELLANT:    James B. LeBow, LeBow and
 7                               Associates, PLLC, New York, NY.
 8
 9   FOR DEFENDANTS-APPELLEES:   Robert C. Weisz, Assistant
10                               Solicitor General, New York, NY
11                               (Eric T. Schneiderman, Attorney
12                               General of the State of New
13                               York; Barbara Underwood,
14                               Solicitor General; and Michael
15                               S. Belohlavek, Senior Counsel,
16                               on the brief).
17

18       Appeal from a judgment of the United States District

19   Court for the Southern District of New York (Rakoff, J.).

20

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

22   AND DECREED that the judgment of the District Court is

23   AFFIRMED.

24

25       Plaintiff-Appellant, Michael Kaplan, appeals the

26   District Court’s decision dismissing his suit, which alleged

27   that he was retaliated against in violation of the First

28   Amendment for reporting supposed misconduct by his

29   supervising officer, Louis Crisafi.   We assume the parties’

30   familiarity with the underlying facts, the procedural

31   history of the case, and the issues on appeal.


                                  2
1        This Court reviews de novo a district court’s dismissal

2    of a complaint under Rule 12(b)(6) of the Federal Rules of

3    Civil Procedure.   Fowlkes v. Adamec, 432 F.3d 90, 95 (2d

4    Cir. 2005).

5        “In order to establish a First Amendment retaliation

6    claim, plaintiffs must prove that: (1) they engaged in

7    constitutionally protected speech because they spoke as

8    citizens on a matter of public concern; (2) they suffered an

9    adverse employment action; and (3) the speech was a

10   ‘motivating factor’ in the adverse employment decision.”

11   Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir.

12   2006), overruled on other grounds as recognized in Appel v.

13   Spiridon, 531 F.3d 138, 139-40 (2d Cir. 2008) (per curiam).

14       The first element conforms to the Supreme Court’s

15   instruction “that when public employees make statements

16   pursuant to their official duties, the employees are not

17   speaking as citizens for First Amendment purposes, and the

18   Constitution does not insulate their communications from

19   employer discipline.”   Garcetti v. Ceballos, 547 U.S. 410,

20   421 (2006).   “The controlling factor” is whether the

21   plaintiff’s “expressions were made pursuant to his

22   [employment] duties.”   Id.   An expression is pursuant to

23   one’s employment duty (and thus unprotected by the First

24   Amendment), if it is “in furtherance of one of his core

                                    3
1    duties,” Weintraub v. Bd. of Educ., 593 F.3d 196, 198 (2d

2    Cir. 2010), “part-and-parcel of his concerns about his

3    ability to properly execute his duties,” id. at 203, or

4    “‘speech that owes its existence to a public employee’s

5    professional responsibilities,” id. at 201 (quoting

6    Garcetti, 547 U.S. at 421).

7        Kaplan’s appeal “has focused on his complaints to the

8    Inspector General and the retaliation that ensued

9    thereafter,” Kaplan Reply Br. at 7, but Kaplan’s reporting

10   to the Inspector General was part of his employment duties.

11   Under Section 55(1) of New York Executive Law, a state

12   employee such as Kaplan

13       shall report promptly to the state inspector general

14       any information concerning corruption, fraud, criminal

15       activity, conflicts of interest or abuse by another

16       state officer or employee relating to his or her office

17       or employment . . . . The knowing failure of any

18       officer or employee to so report shall be cause for

19       removal from office or employment or other appropriate

20       penalty.

21   Kaplan’s complaints regarding Crisafi are in those

22   categories.    For example, Kaplan reported that Crisafi was

23   purposely violating suspects’ constitutional rights, a

24   federal crime (see 18 U.S.C. § 242); Kaplan claimed that

                                    4
1    Crisafi obtained his state job by misrepresenting his

2    credentials (i.e., fraud); and     Kaplan reported that Crisafi

3    had improperly placed police lights and a siren on his

4    personal vehicle and was working other jobs during business

5    hours (i.e., corruption and abuse of office).

6        Finally, Kaplan reported that Crisafi was ordering or

7    taking part in ill-conceived arrests, searches, and

8    undercover operations and abusing prescription narcotics.

9    Speech that is “part-and-parcel of [an employee’s] concerns

10   about his ability to properly execute his duties” is the

11   speech of a public employee pursuant to his duties and not

12   of a private citizen.   Weintraub, 593 F.3d at 203 (internal

13   quotation marks omitted).    As Kaplan concedes, a number of

14   Crisafi’s alleged actions “affect[ed] [Kaplan’s] performance

15   of his own duties.”   Kaplan Opening Br. at 31.   Crisafi was

16   Kaplan’s immediate supervisor, and Crisafi’s alleged

17   behavior raised reasonable concerns by Kaplan of his ability

18   to execute his own duties.

19       Because Kaplan’s report to the Inspector General was

20   made pursuant to and in furtherance of his employment

21   duties, see Weintraub, 593 F.3d at 198, 201, 203, Kaplan was

22   acting as a public employee and not a private citizen.1


         1
           Kaplan’s reliance on our decision in Jackler v.
     Byrne, 658 F.3d 225 (2d Cir. 2011), is misplaced. In that
                                    5
1   Accordingly, any retaliation against his speech did not

2   violate his First Amendment rights.

3

4       We have considered all of Kaplan’s additional arguments

5   and find them to be without merit.    Accordingly, the

6   judgment of the District Court is AFFIRMED.

7
8                              FOR THE COURT:
9                              Catherine O’Hagan Wolfe, Clerk




    case, we concluded that an officer who refused an order to
    retract a truthful statement and replace it with a false one
    acted as a private citizen, rather than as a public
    employee. See id. at 241-42. Jackler’s reasoning does not
    extend to this quite different factual context, where the
    employee engaged in speech mandated by law as a duty of his
    job.
                                 6
