11-3097-cv
Kiehle v. County of Cortland

                   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.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3rd day of July, two thousand twelve.

PRESENT:    RALPH K. WINTER,
            CHESTER J. STRAUB,
            DENNY CHIN,
                           Circuit Judges.

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KRISTINA KIEHLE,
          Plaintiff-Appellant,

            -v.-                                                11-3097-cv

COUNTY OF CORTLAND, KRISTEN MONROE, sued
in her individual capacity, MAUREEN
SPANN, sued in her individual capacity,
TIFFANY PARKER, sued in her individual
capacity,
          Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:              STEPHEN BERGSTEIN, Bergstein &
                                      Ullrich, LLP, Chester, New York
                                      (Matthew E. Bergeron, Satter &
                                      Andrews, LLP, Syracuse, New York,
                                      James Francis Barna, The Barna Law
                                      Firm, Fayetteville, New York, on
                                      the brief).

FOR DEFENDANTS-APPELLEES:             DONALD S. THOMSON, Davidson &
                                      O'Mara, P.C., Elmira, New York.
          Appeal from a judgment of the United States District

Court for the Northern District of New York (McAvoy, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Kristina Kiehle appeals from the

district court's judgment entered on July 8, 2011, pursuant to

its decision and order dated July 8, 2011, granting summary

judgment to defendants-appellees, the County of Cortland and

three employees of the Cortland County Department of Social

Services ("DSS").   We assume the parties' familiarity with the

underlying facts, the procedural history, and the issues

presented for review.

          Kiehle sued defendants for retaliatory termination in

violation of her First Amendment rights when she was discharged

as a probationary DSS caseworker after testifying at a New York

State Family Court ("Family Court") hearing.   "A public employee

claiming First Amendment retaliation must demonstrate that: (1)

[her] speech addressed a matter of public concern, (2) [s]he

suffered an adverse employment action, and (3) a causal

connection existed between the speech and the adverse employment

action" such that "speech was a motivating factor in the

determination."   Feingold v. New York, 366 F.3d 138, 160 (2d Cir.
2004) (internal quotation marks omitted).

          Upon de novo review, we conclude that the district

court did not err in granting summary judgment to defendants.

See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d
Cir. 2003).

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            On August 18, 2008, at the Family Court hearing, Kiehle

testified that the Family Court petitioner -- a mother seeking to

re-obtain custody of her daughter -- was able to adequately

supervise, and was not neglectful of, her children.    Kiehle

recommended that the child be returned to the mother.    Kiehle's

testimony was offered voluntarily, for the petitioner, without a

subpoena.   When she took the stand, Kiehle introduced herself as

a DSS caseworker, and her conclusions were based on information

she obtained during the course of her public employment.

Further, while taking a position in her testimony that was

contrary to DSS's position in the proceeding, Kiehle did not

distinguish her personal views from those of DSS.

            Hence, as the district court concluded based on the

indisputable facts, Kiehle did not testify as a private citizen

on a matter of public concern at the Family Court hearing;

rather, she testified as a government employee -- as a DSS

caseworker.   "[W]hen public employees make statements pursuant to

their official duties, the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline."

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).     Thus, the

district court did not err in granting summary judgment to

defendants.




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          We have considered plaintiff's remaining arguments and

find them to be without merit.    Accordingly, we hereby AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 CATHERINE O'HAGAN WOLFE, CLERK




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