10-3617-cv
Bearss v. Wilton

                            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, at 500 Pearl Street, in the City of New York,
on the 3rd day of November, two thousand eleven.

Present:
           RALPH K. WINTER,
           ROBERT A. KATZMANN,
           RICHARD C. WESLEY,
                            Circuit Judges.

____________________________________________________________

DEBRA BEARSS,

                           Plaintiff-Appellant,

                           - v. -                       No. 10-3617-cv

WENDY WILTON, Individually and in her capacity as
City Treasurer of the City of Rutland, CHRISTOPHER LOURAS,
Individually and in his capacity as Mayor of the City of Rutland,
CITY OF RUTLAND, VERMONT,

                     Defendants-Appellees.
____________________________________________________________

For Plaintiff-Appellant:                  PAUL S. KULIG, Kulig & Sullivan, P.C., Rutland, VT


For Defendants-Appellees:                 KEVIN J. COYLE, McNeil, Leddy & Sheahan, PC,
                                          Burlington, VT (John T. Leddy, McNeil, Leddy &
                                          Sheahan, PC, Burlington, VT, James F. Carroll,
                                          English, Carroll & Boe, PC, Middlebury, VT, on the
                                          brief)


   Appeal from the United States District Court for the District of Vermont (Conroy, M.J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

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

       Plaintiff-Appellant Debra Bearss appeals from a judgment, entered on August 10, 2010,

by the United States District Court for the District of Vermont (Conroy, M.J.), granting

Defendants-Appellees’ motion for summary judgment and dismissing Bearss’s claims arising

under 42 U.S.C. § 1983 for violation of Bearss’s rights under the First and Fourteenth

Amendments. Having dismissed the federal claims, the district court declined to exercise

supplemental jurisdiction over the remaining state law claims. We assume the parties’

familiarity with the facts, procedural history, and specification of issues on appeal.

       Summary judgment is appropriate only “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R.

Civ. P. 56(a). “We review de novo a district court’s grant of summary judgment, drawing all

factual inferences in favor of the non-moving party.” Sousa v. Roque, 578 F.3d 164, 169 (2d Cir.

2009) (internal quotation marks omitted).

       We turn first to Bearss’s First Amendment retaliation claims. “To survive summary

judgment on a section 1983 First Amendment retaliation claim a plaintiff must demonstrate that

he engaged in protected speech, and that the speech was a substantial or motivating factor in an

adverse decision taken by the defendant.” Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d

147, 152 (2d Cir. 2006). “Whether speech by a public employee is protected from retaliation

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under the First Amendment begins with this question: ‘whether the employee spoke as a citizen

on a matter of public concern.’” Huth v. Haslun, 598 F.3d 70, 73 (2d Cir. 2010) (quoting

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “If a public employee speaks not as a citizen

but instead pursuant to his or her ‘official duties,’ an employer’s response to that speech does not

violate the First Amendment.” Id. at 74.

       On appeal, Bearss argues that the district court erred in dismissing her claims of First

Amendment retaliation based on two instances of allegedly protected speech: (1) statements

published in a local newspaper rebutting allegations that former city officials had deleted public

documents in violation of state law; and (2) testimony given by Bearss in July 2007 at a Board of

Civil Authority (“BCA”) hearing regarding Bearss’s job performance in which she rebutted

allegations that employee benefits had been improperly made by the former city treasurer.

       The undisputed record demonstrates that, on both occasions, Bearss spoke as a public

employee and not as a citizen on a matter of public concern, and thus these instances of speech

were not protected. See Weintraub v. Bd. of Educ., 593 F.3d 196, 200 (2d Cir. 2010)

(“Regardless of the factual context, we have required a plaintiff alleging retaliation to establish

speech protected by the First Amendment.”) (internal quotation marks omitted).

       With respect to the newspaper statements, Bearss was quoted in the Rutland Herald:

       Debra Bearss, the city’s information technology coordinator, said no public
       information was deleted from city computers and no one at City Hall did anything out
       of the ordinary to them.




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       Cassarino’s computer, for example, appears to have been used only rarely, she said.
       His assistant, Jean Ross, who still works at City Hall “receives all the files in that
       office,” Bearss said. “I don’t think John used the computer very much.”

       [Former Assistant City Attorney Henry] Brislin had dozens of public files stored on
       his machine, and Bearss said she e-mailed all of them to city Legal Assistant Lisa
       Pearson before clearing out his electronic files . . . .

       As for Wilkinson’s computer, Bearss said she has never touched it. . . .

J.A. 26-27.

       In finding that the speech was not entitled to the protection of the First Amendment,

the district court noted that “Bearss was acting as an employee with first-hand knowledge of

the City’s computer use when she responded to the reporter’s inquiries.” J.A. 195. We

agree. “[U]nder the First Amendment, speech can be ‘pursuant to’ a public employee’s

official job duties even though it is not required by, or included in, the employee’s job

description, or in response to a request by the employer.” Weintraub, 593 F.3d at 203. Prior

to the newspaper statements, Wilton had circulated a memorandum that stated that “any

computer issues need to be addressed to Debra Bearss, IT Coordinator.” J.A. 25. Bearss

spoke to the newspaper as the “city’s information technology coordinator” and, therefore, we

conclude that her statements were “speech that owes its existence to a public employee’s

professional responsibilities.” Garcetti, 547 U.S. at 421; see also Carter v. Inc. Vill. of

Ocean Beach, 415 F. App’x 290, 293 (2d Cir. 2011) (summary order) (affirming summary

judgment on the ground that the misconduct that plaintiffs identified was learned “only by

virtue of their jobs as police officers”); Foley v. Town of Randolph, 598 F.3d 1, 7-8, 10 (1st

Cir. 2010) (holding that fire chief’s speech to press was “pursuant to official duties” because




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under the circumstances it took on character of “official communications” and had

“imprimatur of the Fire Department”).

       We turn next to Bearss’s testimony at the 2007 BCA hearing. The district court

found that Bearss testified predominantly about matters within the scope of her job duties,

specifically relating to the defense of her job performance against Wilton’s accusations of

incompetence and inexperience. Bearss points to statements that she made concerning

allegations that employee benefit determinations had been made in violation of City policy,

rebutting them as “policy decisions” with which Bearss personally did not agree. Bearss

argues that the statements addressed potential malfeasance by the former city treasurer and

thus she spoke as a private citizen on a matter of public concern. Under those circumstances,

she claims, her speech was protected by the First Amendment. See, e.g., Johnson v. Ganim,

342 F.3d 105, 112 (2d Cir. 2003) (“Discussion regarding current government policies and

activities is perhaps the paradigmatic matter of public concern.” (alteration and internal

quotation marks omitted)). Nevertheless, the district court noted that Bearss’s speech “was

not intended to remedy working conditions for a group of City employees, and was not

aimed at any alleged City-wide epidemic affecting many employees.” J.A. 200; see also

Plofsky v. Giuliano, 375 F. App’x 151, 153-54 (2d Cir. 2010) (summary order) (holding that

complaints by a plaintiff and his lawyer about Connecticut State Ethics Commission

disciplinary proceeding were “largely personal in nature” even though “contemporaneous

newspaper reports suggested there was, in fact, some public interest in the statements made

by plaintiff and his attorney”).




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       Taking into account the “content, form, and context of a given statement, as revealed

by the whole record,” Sousa, 578 F.3d at 170 (quoting Connick v. Myers, 461 U.S. 138, 147-

48 (1983)) (internal quotation mark omitted), we agree with the district court that the record

supports the conclusion that Bearss’s statements were motivated by personal interest in

responding to criticism of her job performance and not motivated by a desire to “advance a

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

the absence of a citizen analogue further supports our conclusion that her speech was not

made as a private citizen, but rather as a public employee. In Weintraub, this Court held that

the “lodging of a union grievance is not a form or channel of discourse available to non-

employee citizens.” 593 F.3d at 204. Bearss’s statements were made in a forum not

available to citizens who not are not employees of the City of Rutland.

        We turn next to Bearss’s retaliation claim based on political association. To

establish a First Amendment retaliation claim for political association, the plaintiff must

show that she engaged in political association and that such conduct was the cause of

defendants’ retaliatory action. See Brady v. Town of Colchester, 863 F.2d 205, 217 (2d Cir.

1988). On appeal, Bearss argues that the record shows that soon after Bearss defended

Wilkinson’s actions, Wilton attempted to fire her. Moreover, Bearss emphasizes that while

Wilton’s firing decision was on appeal, Wilton made a statement on a local talk radio show

that once Bearss had been terminated “the last of the political insiders” would be gone. Pl.

Br. 47. The plaintiff thus claims that she “had a protected interest in making statements on

matters of political significance without suffering retaliation on the basis that such statements

made Bearss (in Wilton’s eyes) a ‘political insider.’” Id. at 48. Defendants argue that Bearss



                                               6
has failed to show that her statements in defense of the former city treasurer were made for

political reasons, but rather, such statements were made as a public employee in defense of

her job, and thus, she was not engaged in political association protected by the First

Amendment. We agree with defendants, for the reasons discussed above with respect to

Bearss’s First Amendment claims regarding her protected speech, that the record is

insufficient to show that Bearss was engaged in protected political association when she

spoke in defense of her former supervisor’s decisionmaking. The evidence does not support

Bearss’s contention on appeal that Wilton’s actions were based on any political association

between Bearss and the former city treasurer.

       We turn finally to Bearss’s procedural due process claim relating to the 2008 BCA

hearing. “An essential principle of due process is that a deprivation of life, liberty, or

property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the

case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). “This principle

requires ‘some kind of a hearing’ prior to the discharge of an employee who has a

constitutionally protected property interest in his employment.” Id. Such an employee “is

entitled to oral or written notice of the charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the story.” Id. at 546.

       Bearss claims she was unlawfully deprived of her property interest in her position

when, at the April 2008 hearing, the BCA did not permit her to present all the evidence

regarding Wilton’s allegedly retaliatory conduct. The district court held that defendants were

entitled to summary judgment because “the undisputed facts reveal that neither party had any

control or authority over the procedures followed at the April 2008 BCA hearing.” J.A. 209.



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It further found that all of the defendants were entitled to summary judgment because “the

undisputed facts reveal that Bearss was afforded written notice of the charges, an explanation

of the employer’s evidence, and an opportunity to present her side of the story at the April

2008 BCA hearing.” Id. A review of the transcript of the 2008 BCA hearing demonstrates

that Bearss’s argument is meritless: despite initial objections from the City’s attorney, the

Board granted Bearss’s attorney ample opportunity to elicit testimony from Bearss until he

determined that he had nothing more to ask. Bearss’s attorney concluded by stating,

“Nothing further.” J.A. 77. Thus, the BCA did not deprive Bearss of the opportunity to fully

present evidence of Wilton’s allegedly retaliatory conduct.

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

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.



                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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