     11-2721-cv
     Massaro v. N.Y.C. Dep’t of Educ.


                                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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
     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 for the Second
 2   Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl
 3   Street, in the City of New York, on the 31st day of May, two thousand twelve.
 4
 5   Present:        AMALYA L. KEARSE,
 6                   SUSAN L. CARNEY,
 7                   J. CLIFFORD WALLACE,*
 8                                          Circuit Judges.
 9   ___________________________________________________________
10
11   YVONNE T. MASSARO,
12
13                            Plaintiff-Appellant,
14
15                              -v-                                                No. 11-2721-cv
16
17   NEW YORK CITY DEPARTMENT OF EDUCATION,
18
19                            Defendant-Appellee.
20
21
22   Appearing for Appellant:                       Stewart L. Karlin, The Law Offices of
23                                                  Stewart Lee Karlin, P.C., New York, NY.
24
25   Appearing for Appellee:                        Julian L. Kalkstein, Diana Lawless, of
26                                                  counsel, for Michael A. Cardozo, Corporation
27                                                  Counsel of the City of New York, New York,
28                                                  NY.


             *
                The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth
     Circuit, sitting by designation.
 1         Appeal from the United States District Court for the Southern District of

 2   New York (Swain, Judge). ON CONSIDERATION WHEREOF, it is hereby

 3   ORDERED, ADJUDGED, and DECREED that the judgment of the District Court

 4   be and it hereby is AFFIRMED.

 5         Plaintiff-Appellant Yvonne T. Massaro appeals from the district court’s 2011

 6   award of summary judgment in favor of Defendant-Appellee New York City

 7   Department of Education (“DOE”), dismissing Massaro’s claim under 42 U.S.C.

 8   § 1983 for alleged violations of her First and Fourteenth Amendment rights.

 9   Massaro, a public school teacher, alleged that defendant retaliated against her for

10   engaging in protected speech—i.e., complaining that she had contracted scabies

11   from the “unsanitary” conditions in her classroom—by, inter alia, changing her

12   schedule and cancelling one of her classes. We assume the parties’ familiarity with

13   the underlying facts, the procedural history, and the arguments raised on appeal,

14   which we reference only as necessary to explain our decision.

15         A district court’s summary judgment is subject to our de novo review.

16   Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). We affirm if, after

17   construing the evidence in the light most favorable to the non-moving party and

18   drawing all reasonable inferences in its favor, “‘there is no genuine dispute as to

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

20   (quoting Fed. R. Civ. P. 56(a)).

21         “To survive summary judgment on a First Amendment retaliation claim, a

22   public employee must bring forth evidence showing that [s]he has engaged in

23   protected First Amendment activity, [s]he suffered an adverse employment action,


                                                2
 1   and there was a causal connection between the protected activity and the adverse

 2   employment action.” Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir.

 3   2011) (internal quotation marks omitted). To determine whether a plaintiff’s

 4   speech is constitutionally protected, “a court must begin by asking ‘whether the

 5   employee spoke as a citizen on a matter of public concern.’” Sousa v. Roque, 578

 6   F.3d 164, 170 (2d Cir. 2009) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

 7   “If the court determines that the plaintiff either did not speak as a citizen or did not

 8   speak on a matter of public concern, ‘the employee has no First Amendment cause

 9   of action based on . . . her employer’s reaction to the speech.’” Id. (quoting Garcetti,

10   547 U.S. at 418). Determining whether an employee spoke as an employee and not

11   as a citizen is “largely a question of law for the court.” Jackler v. Byrne, 658 F.3d

12   225, 237 (2d Cir. 2011).

13         Public employees speak as employees—and not as citizens—when they “make

14   statements pursuant to their official duties.” Garcetti, 547 U.S. at 421. “The

15   objective inquiry into whether a public employee spoke ‘pursuant to’ . . . her official

16   duties is ‘a practical one.’” Weintraub v. Bd. of Educ. of the City Sch. Dist. of the

17   City of N.Y., 593 F.3d 196, 202 (2d Cir. 2010) (quoting Garcetti, 547 U.S. at 424).

18   We have held that speech may be deemed “pursuant to” a public employee’s official

19   duties if it is “part-and-parcel of [her] concerns about [her] ability to properly

20   execute [her] duties.” Id. at 203 (internal quotation marks omitted). The “lack of a

21   citizen analogue” to the form of the plaintiff’s speech also “bear[s] on . . . whether

22   the public employee is speaking as a citizen.” Id. at 204; see also id. (noting that,

23   unlike actions that are available equally to government employees and ordinary


                                                 3
 1   citizens, “[t]he lodging of a union grievance is not a form or channel of discourse

 2   available to non-employee citizens”).

 3         Massaro works as an art teacher for the DOE at the Edward R. Murrow High

 4   School. In December 2005, Massaro informed school administrators that she had

 5   contracted scabies and that, in her opinion, the scabies was caused by the

 6   unsanitary conditions in her classroom. In connection with her scabies infection,

 7   Massaro submitted several documents to the DOE. These included a

 8   Comprehensive Injury Report, in which she claimed that she had been bitten by

 9   mites in her classroom; and an Accident Report, in which she described, among

10   other things, her “unclean working environment,” her expenses related to her

11   scabies infection, and the school’s alleged failure to clean her classroom or,

12   alternatively, to transfer her to a different classroom. On several occasions between

13   December 2005 and February 2006, Massaro also complained verbally to school

14   administrators about these same matters.

15         The district court determined that Massaro’s complaints regarding her health

16   issues and the allegedly unsanitary conditions in her classroom did not constitute

17   constitutionally protected speech. We agree. The district court’s conclusion that

18   Massaro spoke as an employee rather than a private citizen is supported by the

19   facts that she aired her complaints only to several school administrators rather

20   than to the public, and that most of those complaints were made in the context of

21   internal safety and medical absence-related forms (at least one of which was

22   marked “confidential”), “for which there is no relevant citizen analogue,” Weintraub,

23   593 F.3d at 203. We further conclude, as did the district court, that Massaro’s


                                                4
 1   complaints concerned her ability “to properly execute [her] duties” as a public school

 2   teacher, id. (internal quotation marks omitted), because they were aimed at

 3   resolving her health issues so that she could continue to teach, and ensuring that

 4   she had a safe and clean environment in which to work and that her use of sick

 5   days was appropriately credited. Accordingly, the undisputed evidence

 6   demonstrates that Massaro’s statements to defendant were made pursuant to her

 7   official duties. We have no difficulty in concluding on this record that Massaro

 8   spoke as an employee—not as a private citizen.

 9         Massaro’s assertion that her job responsibilities did not expressly require her

10   to report health hazards in her classroom does not persuade us otherwise. See id.

11   (“[S]peech can be ‘pursuant to’ a public employee’s official job duties even though it

12   is not required by, or included in, the employee’s job description, or in response to a

13   request by the employer.”). Although one can conceive of a setting in which a public

14   school teacher’s remarks on a potential health hazard at school are delivered in

15   such a way as to constitute public comments on a matter of public concern that are

16   delivered as a citizen, not an employee, this is not that case.

17         Further, as to the remaining elements required to prove a First Amendment

18   retaliation claim, we discern from the record no basis from which a reasonable jury

19   could find conduct that rises to the level of an “adverse employment action,” Zelnik

20   v. Fashion Inst. of Tech., 464 F.3d 217, 226-27 (2d Cir. 2006) (to qualify as an

21   “adverse employment action” the alleged act of retaliation must be “more than de

22   minimis”). Nor is there evidence demonstrating a nexus between Massaro’s speech

23   and the purportedly adverse employment actions.


                                                5
1         We have considered Massaro’s remaining arguments and conclude that they

2   are without merit. The judgment of the district court is therefore AFFIRMED.

3
4
5                                               FOR THE COURT:
6                                               Catherine O’Hagan Wolfe, Clerk
7




                                            6
