    17-3233
    Conte v. Bergeson
                             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 ASUMMARY 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 13th day of March, two thousand nineteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                DEBRA ANN LIVINGSTON,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    _____________________________________

    Renata Conte,

                              Plaintiff-Appellant,

                        v.                                                       17-3233

    Rachel Bergeson, in her Official and Individual
    capacity, Samuel L. Stanley, Jr., in his Official and
    Individual capacity, Peter Baigent, in his Official
    and Individual capacity, Jerrold Stein, in his
    Official and Individual capacity, Sharon Fletcher, in
    her Official and Individual capacity, Joann Goetz,
    in her Official and Individual capacity, Susan Blum,
    in her Official and Individual capacity,

                      Defendants-Appellees.
    _____________________________________


    FOR PLAINTIFF-APPELLANT:                                Renata Conte, pro se, South Setauket, NY.



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FOR DEFENDANTS-APPELLEES:                             David S. Frankel, Assistant Solicitor
                                                      General, Anisha Dasgputa, Deputy Solicitor
                                                      General, for Barbara D. Underwood,
                                                      Attorney General, State of New York, New
                                                      York, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New

York (Azrack, J.; Lindsay, M.J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Renata Conte, pro se,1 filed a 42 U.S.C. § 1983 action against Rachel Bergeson

and other employees of the State University of New York at Stony Brook, alleging violations of

her First and Fourteenth Amendment rights, as well as state law. Conte, a licensed pharmacist,

asserted that the defendants retaliated against her and refused to renew her employment contract

because she complained to the New York State Board of Pharmacy about Bergeson’s alleged

illegal dispensation of medication.     The district court granted the defendants’ motion for

summary judgment, and Conte now appeals.             We assume the parties’ familiarity with the

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

       We review the district court’s grant of summary judgment de novo, “viewing the evidence

in the light most favorable to the non-moving party.” Cotarelo v. Vill. of Sleepy Hollow Police

Dep’t, 460 F.3d 247, 251 (2d Cir. 2006). Summary judgment is appropriate when there are “no

genuine material issues of fact and the moving party is entitled to judgment as a matter of law.”

Id.




       1
       Conte was represented by counsel until the magistrate judge issued a report and
recommendation dismissing her case in August 2017.


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       “To survive a motion for summary judgment on a First Amendment retaliation claim, the

plaintiff must present evidence which shows [1] that the speech at issue was protected, [2] that

[s]he suffered an adverse employment action, and [3] that there was a causal connection between

the protected speech and the adverse employment action.” Id. (internal quotation marks and

citation omitted). Courts conduct a two-step inquiry to determine whether a public employee’s

speech is protected. “‘The first [step] requires determining whether the employee spoke as a

citizen on a matter of public concern.’” Matthews v. City of New York, 779 F.3d 167, 172 (2d

Cir. 2015) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). This first step, in turn,

“encompasses two separate subquestions: (1) whether the subject of the employee’s speech was a

matter of public concern and (2) whether the employee spoke ‘as a citizen’ rather than solely as an

employee.” Id. (internal citation and quotation marks omitted).

               If the answer to either question is no, that is the end of the matter.
               If . . . both questions are answered in the affirmative, the court then
               proceeds to the second step of the inquiry, commonly referred to as
               the Pickering analysis: whether the relevant government entity “had
               an adequate justification for treating the employee differently from
               any other member of the public based on the government’s needs as
               an employer.”

Id. (quoting Lane v. Franks, 573 U.S. 228, 237 (2014)).

       To assess whether the plaintiff’s speech was a matter of public concern, courts consider

“whether the employee’s speech was calculated to redress personal grievances or whether it had a

broader public purpose.” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008) (internal

quotation marks and citation omitted). To determine whether a plaintiff spoke as an employee or

a citizen, courts examine “the nature of the plaintiff’s job responsibilities, the nature of the speech,

and the relationship between the two.” Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012).

“Speech can be ‘pursuant to’ a public employee’s official job duties even though it is not required


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by or included in that employee’s job description.” Weintraub v. Bd. of Educ., 593 F.3d 196, 203

(2d Cir. 2010) (concluding that speech was pursuant to employee’s official duties because it related

to his “ability to properly execute his duties”).

       Conte argues that her grievances to an outside regulatory body—the New York State Board

of Pharmacy—were a matter of public concern because, by complaining about an individual who

was dispensing medication without a license, she was voicing a concern related to the well-being

of the Stony Brook student body. We agree with the district court that this claim fails at step one

of the analysis because, even if Conte is correct that her complaints were about a matter of public

concern, she was speaking as an employee, pursuant to her job duties, rather than as a private

citizen. See Ross, 693 F.3d at 305 (stating that the “Constitution does not insulate” public

employees making statements pursuant to their official duties from employer discipline “even

when the subject of an employee’s speech is a matter of public concern”). Conte’s duties as a

supervising pharmacist included ensuring that the pharmacy was in “compliance with the laws and

regulations of federal and state agencies governing pharmac[ies].” Defendants’ App. at 299.

While it may not have been explicitly within Conte’s job description to file her grievance about

the pharmacy’s lack of compliance with an outside body, and the Board invites and receives

complaints from the general public, those facts do not render her speech that of a private citizen.

“[T]he existence of a civilian analogue is not dispositive of whether a public employee spoke as a

private citizen . . . .” Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018). Rather, it

is “merely a factor” that a court can consider “as part of the inquiry into whether the public

employee’s speech was made pursuant to his ordinary employment-related responsibilities.” Id.

Here, Conte’s complaint to the Board concerned the pharmacy’s failure to abide by applicable rule




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and regulations, which was squarely part of her job duties. Accordingly, the district court

properly ruled that Conte’s speech was not protected by the First Amendment.

       We also perceive no error in the district court’s dismissal of Conte’s Fourteenth

Amendment due process claims. To assert a property interest under procedural due process

rights, a public employee must have a “legitimate claim of entitlement” to continued employment,

such as a “state statute or University rule or policy.” Bd. of Regents of State Colls. v. Roth, 408

U.S. 564, 577-78 (1972). Here, Conte does not argue that there was a written policy that provided

her with a property interest in her job. Rather, she asserts that she had de facto tenure rights akin

to the plaintiff in Perry v. Sindermann, 408 U.S. 593 (1972). But Perry is distinguishable; in that

case, the employee relied on a faculty guide, which stated that the college “wishes the faculty

member to feel that he has permanent tenure,” as well as on the college’s guidelines, which stated

that an employee who worked for at least seven years had a form of tenure. 408 U.S. at 600.

Conte does not cite similar evidence indicating that Stony Brook’s renewal of her annual contract

amounted to tenure. Moreover, Conte conceded that the defendants had discretion to decide

whether she should continue to be employed, which militates against a finding of tenure. Because

“a benefit is not a protected entitlement if government officials may grant or deny it in their

discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005), Conte did not have a

protected property interest in continued employment.

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

Accordingly, we AFFIRM the district court’s decision.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk of Court




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