Ross v. Lichtenfeld

Filing

OPINION, reversing judgment of the district court, by JMW., PNL., RSP., FILED.[714310] [10-5275]

Case: 10-5275

Document: 76-1

Page: 1

09/10/2012

714310

17

10-5275
Ross v. Lichtenfeld

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3
4
5

August Term 2012
(Submitted: January 17, 2012

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30

Decided: September 10, 2012)

Docket No. 10-5275-cv
-----------------------------------------------------x
RISA A. ROSS,
Plaintiff-Appellee,
-- v. -PETER F. BRESLIN, EVE HUNDT, MICHAEL GORDON, FELYCIA SUGARMAN,
DONNA WALSH, BRUCE PAVALOW, WARREN SCHLOAT, BOARD OF EDUCATION OF
THE KATONAH-LEWISBORO UNION FREE SCHOOL DISTRICT, KATONAHLEWISBORO UNION FREE SCHOOL DISTRICT, KEVIN SHELDON,
Defendants,
ROBERT LICHTENFELD,
Defendant-Appellant.

-----------------------------------------------------x
B e f o r e :

WALKER, LEVAL, and POOLER, Circuit Judges.

Defendant-appellant Robert Lichtenfeld appeals from an order

31

of the United States District Court for the Southern District of

32

New York (William G. Young, Judge) denying Lichtenfeld’s motion

33

for summary judgment with regard to plaintiff-appellee’s claim
1

Case: 10-5275

Document: 76-1

Page: 2

09/10/2012

714310

17

1

that she was fired in retaliation for her reports of financial

2

malfeasance.

3

pursuant to her official duties as a public employee and her

4

speech was therefore not protected by the First Amendment.

5

Accordingly, we hold that defendant-appellant is entitled to

6

summary judgment.

We conclude that plaintiff-appellee was speaking

REVERSED.

7
8
9
10
11
12
13
14
15
16
17

JONATHAN LOVETT, Law Office of
Jonathan Lovett, Hawthorne, New
York, for Plaintiff-Appellee.
RONDIENE E. NOVITZ, Cruser,
Mitchell & Novitz, LLP, Melville,
New York, for Defendant-Appellant.
JOHN M. WALKER, JR., Circuit Judge:
This appeal requires us to determine whether plaintiff-

18

appellee Risa A. Ross (“Ross”) was speaking pursuant to her

19

official duties as a payroll clerk typist for the Katonah-

20

Lewisboro Union Free School District (“the District”) when she

21

reported financial malfeasance to defendant-appellant Robert

22

Lichtenfeld (“Lichtenfeld”), the District’s Superintendent, and

23

to the Katonah-Lewisboro Board of Education (“the Board”).

24

United States District Court for the Southern District of New

25

York (William G. Young, Judge) held that Ross was speaking as a

26

private citizen and that her First Amendment retaliation claim

27

could proceed to trial.

28

complaints were made pursuant to her official duties and

We disagree.

2

The

We conclude that Ross’s

Case: 10-5275

Document: 76-1

Page: 3

09/10/2012

714310

1

therefore were not protected by the First Amendment.

2

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

3

Lichtenfeld is entitled to summary judgment on Ross’s First

4

17

See

Amendment retaliation claim.

Accordingly,

5
6
7

BACKGROUND
When reviewing an interlocutory appeal from a denial of a

8

motion for summary judgment, we resolve all factual disputes in

9

favor of the non-movant.

Droz v. McCadden, 580 F.3d 106, 108 (2d

10

Cir. 2009).

11

clerk typist.

12

Lichtenfeld was, at all relevant times, the District’s

13

Superintendent.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32

In 1998, Ross was hired by the District as a payroll
Her immediate supervisor was Margaret Taylor.

Ross testified that her job duties were:

To process biweekly payrolls for approximately 800
people, transmit direct deposit, [and] mail out [checks
relating to other payments, such as taxes and
garnishments,] . . . . getting the pay reqs.
[requisitions] . . . and processing, making sure that
the pay rates were correct, making sure that the totals
were correct, and verifying. If there was a mistake
with a pay req., bringing it to the appropriate
person’s attention.
. . . .
If it was a mistake that I felt was a mistake, I would
bring it to the person’s attention. . . . If there was
a pay req. that I disagreed with and I had questions
about . . . .
. . .
I brought – a lot of them I brought to Bob
[Lichtenfeld]’s attention that I didn’t think were
appropriate.

3

Case: 10-5275

Document: 76-1

Page: 4

09/10/2012

1

Ross Deposition 64-65.

2

714310

17

current salary of each district employee.

3

Ross’s job required her to know the

Between May 2003 and July 2006, Ross met with Lichtenfeld on

4

numerous occasions to express concern over payments she believed

5

to be improper.

6

informed Lichtenfeld that Howard “Lee” Turner, a District

7

courier, had forged his supervisor’s signature to obtain

8

additional pay.

9

a supervisor told her to forget about Turner’s actions and not

At their first meeting in May 2003, Ross

Ross played voicemails for Lichtenfeld in which

10

say anything.

11

forgery.

12

action and received compensation for his accrued vacation time

13

and two months of continued health insurance.

14

Lichtenfeld informed the Board of Turner’s

Turner voluntarily resigned to avoid disciplinary

On February 10, 2004, Ross again met with Lichtenfeld to

15

tell him that John Thibdeau, the director of administrative

16

services, was retaliating against her for questioning improper

17

payments he had approved and for an incident involving Lisa Kor.

18

At this meeting, Ross gave Lichtenfeld documentation of some of

19

these disbursements.

20

documentation, he said something to the effect of: “Oh, my God.

21

This is worse than the Enron scandal.

22

heads will spin.”

23

Ross continued to meet with Lichtenfeld about similar complaints.

When Lichtenfeld looked at the

If taxpayers find out

Ross Deposition 119.

4

Following this meeting,

Case: 10-5275

1

Document: 76-1

Page: 5

09/10/2012

714310

17

Ross’s complaints primarily concerned improper disbursements

2

which she believed were made without the required Board approval

3

based on her review of Board meeting agendas.

4

by Lichtenfeld that “Board action people” (individuals not under

5

contract who must be annually approved by the Board) were not

6

entitled to overtime.

7

of Board action people who were receiving overtime pay without

8

Board approval.

9

illegal to give out bonuses or performance awards without Board

She had been told

She approached Lichtenfeld with examples

Similarly, Lichtenfeld told Ross that it was

10

approval.

11

bonuses, stipends, at least one longevity payment, and other

12

miscellaneous disbursements all of which she believed were made

13

without the necessary Board approval.

14

Ross complained that Lichtenfeld had spent $500 of District funds

15

to buy chocolates for a gift.

16

Ross complained of numerous performance awards,

In a separate incident,

In October 2005, the District hired Renee Gargano

17

(“Gargano”) as an outside consultant to help resolve

18

interpersonal problems among the staff.

19

relevant times Deputy Superintendent of the Putnam/Northern

20

Westchester BOCES (“Putnam”), a nearby school district.

21

viewing a list of employees, Gargano recognized Ross’s name and

22

informed Lichtenfeld that Ross had previously been employed by

23

Putnam.

24

call when Ross was hired by the District.

Gargano was at all

Upon

Gargano did not recall having received a reference check

5

Further investigation

Case: 10-5275

Document: 76-1

Page: 6

09/10/2012

714310

17

1

revealed that Ross had failed to list her employment with – and

2

termination from – Putnam, as well as two other school districts,

3

on her employment application.

4

In January 2006, Ross met with Gargano.

Ross told Gargano

5

about the improper payments she had reported to Lichtenfeld and

6

showed her the relevant documentation.

7

documents and said she would discuss the matter with Lichtenfeld.

8
9

Gargano took the

On May 23, 2006, Ross was suspended with pay by Kevin
Sheldon, the District’s Assistant Business Administrator.

On

10

July 21, 2006, Ross wrote a letter on her personal stationary to

11

the individual Board members outlining the concerns she had

12

raised to Lichtenfeld.

13

employee of the School District, I am writing to you, . . .

14

President of the Board of Education, on a personal note out of

15

complete frustration with the District’s administration.”

16

explaining her conversations with Lichtenfeld and noting her

17

frustration with his failure to take what she considered to be

18

appropriate action, she stated that her suspension was in

19

retaliation for reporting financial malfeasance.

The letter began: “Although I am an

20

After the Board received this letter, it convened an

21

executive session at which Lichtenfeld recommended Ross’s

22

termination.

23

learned, however, that Ross had been entitled to a pre-

24

termination hearing.

After

The Board voted to terminate her.

It subsequently

It rescinded her termination and initiated
6

Case: 10-5275

Document: 76-1

Page: 7

09/10/2012

714310

17

1

a disciplinary hearing, which was held on August 24 and 31, 2006,

2

before Hearing Officer Joseph E. Wooley.

3

found that Ross had knowingly made false statements on her

4

application and recommended that she be terminated.

5

19, 2006, the Board voted unanimously to terminate Ross.

6

The Hearing Officer

On December

Ross filed this amended complaint in March 2007 claiming in

7

relevant part that her termination was a violation of her First

8

Amendment rights.

9

December 6, 2010, the district court granted the motion as to

10

some of Ross’s claims, but denied it with regard to her First

11

Amendment retaliation claim.

12

2d 467 (S.D.N.Y. 2010).

13

Lichtenfeld was not entitled to qualified immunity on that claim.

14

Id. at 479.

Lichtenfeld moved for summary judgment.

On

Ross v. Lichtenfeld, 755 F. Supp.

The district court concluded that

Lichtenfeld appeals.

15
16
17
18

DISCUSSION
An interlocutory appeal from a denial of summary judgment is

19

permissible when a district court denies the defendant qualified

20

immunity.

21

756, 760 (2d Cir. 2003).

22

defendant contends that he is entitled to qualified immunity

23

under the plaintiff’s version of the facts.

24

argues that we lack jurisdiction because this appeal is based on

See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d
Such an appeal is allowed only if the

7

Id. at 761.

Ross

Case: 10-5275

Document: 76-1

Page: 8

09/10/2012

714310

17

1

disputed facts, i.e., Lichtenfeld’s intent.

However, we agree

2

with Lichtenfeld that even under Ross’s version of the facts, her

3

complaints are not entitled to First Amendment protection because

4

they were made pursuant to her job duties.

5

jurisdictional argument is without merit.

Thus, Ross’s

6

We will grant summary judgment if, taking all the facts in

7

the light most favorable to the non-moving party, the defendant

8

was entitled to qualified immunity as a matter of law.

9

760-61.

Id. at

In general, qualified immunity shields “government

10

officials performing discretionary functions . . . from liability

11

for civil damages insofar as their conduct does not violate

12

clearly established statutory or constitutional rights of which a

13

reasonable person would have known.”

14

U.S. 800, 818 (1982).

15

either of two questions:

16

deprivation of an actual constitutional right, or whether the

17

right was clearly established at the time of the incident.

18

Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009).

19

answer to either question requires judgment for the defendant.

20

See id. at 245; Costello v. City of Burlington, 632 F.3d 41, 51

21

(2d Cir. 2011) (Pooler, J., concurring).

22

concluded that Ross had presented sufficient evidence that

23

Lichtenfeld violated her clearly established First Amendment

24

right to freedom of speech.

Harlow v. Fitzgerald, 457

The qualified immunity inquiry can turn on
whether the complaint alleges the

See

A “no”

The district court

We disagree and hold that, because
8

Case: 10-5275

Document: 76-1

Page: 9

09/10/2012

714310

17

1

Ross was speaking pursuant to her official duties and not as a

2

private citizen, her speech was not protected by the First

3

Amendment.

4

violation of a constitutional right, it is clear a fortiori that

5

the right was not clearly established at the time of the

6

incident.

7

Because we find that the complaint does not allege a

In the First Amendment context, “the State has interests as

8

an employer in regulating the speech of its employees that differ

9

significantly from those it possesses in connection with

10

regulation of the speech of the citizenry in general.”

Pickering

11

v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill.,

12

391 U.S. 563, 568 (1968).

13

protected by the First Amendment only when the employee is

14

speaking “as a citizen . . . on a matter of public concern.”

15

Piscottano v. Murphy, 511 F.3d 247, 269-70 (2d Cir. 2007).

16

Garcetti v. Ceballos, the Supreme Court held that “when public

17

employees make statements pursuant to their official duties, the

18

employees are not speaking as citizens for First Amendment

19

purposes, and the Constitution does not insulate their

20

communications from employer discipline.”

21

is the case even when the subject of an employee’s speech is a

22

matter of public concern.

23

(2d Cir. 2011); Anemone v. Metro. Transp. Auth., 629 F.3d 97,

24

115-16 (2d Cir. 2011).

Speech by a public employee is

547 U.S. at 421.

In

This

Jackler v. Byrne, 658 F.3d 225, 237

Therefore, if, as a matter of law, Ross
9

Case: 10-5275

Document: 76-1

Page: 10

09/10/2012

714310

1

was speaking pursuant to her official duties, Lichtenfeld is

2

17

entitled to summary judgment.

3

In Garcetti, the plaintiff, Richard Ceballos, who was a

4

deputy district attorney, was asked by a defense attorney to

5

review an affidavit that had been used to obtain a search

6

warrant.

7

the affidavit.

8

wrote a disposition memo recommending that the charges be

9

dismissed.

Ceballos discovered significant misrepresentations in
He informed his supervisors of his discovery and

He claimed that he was subsequently subjected to

10

retaliatory employment action.

11

Court determined that he had not been speaking as a citizen when

12

he told his supervisors about the problems with the affidavit:

13

“The controlling factor in Ceballos’ case is that his expressions

14

were made pursuant to his duties as a calendar deputy. . . .

15

Ceballos spoke as a prosecutor fulfilling a responsibility to

16

advise his supervisor about how best to proceed with a pending

17

case . . . .”

18

disposition memo because that is part of what he, as a calendar

19

deputy, was employed to do.”

20

Id. at 421.

547 U.S. at 413-15.

The Supreme

In short, “Ceballos wrote his

Id.

The Court further observed that “[r]estricting speech that

21

owes its existence to a public employee’s professional

22

responsibilities does not infringe any liberties the employee

23

might have enjoyed as a private citizen.”

24

Instead, “[i]t simply reflects the exercise of employer control
10

Id. at 421-22.

Case: 10-5275

Document: 76-1

Page: 11

09/10/2012

714310

1

over what the employer itself has commissioned or created.”

2

17

at 422.

3

Id.

In Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir. 2010),

4

we addressed the applicability of Garcetti to a teacher’s

5

complaints about his school administration’s failure to

6

discipline a disruptive student.

7

to punish a student in Weintraub’s class for throwing a book on

8

two separate occasions, Weintraub told his supervisor and co-

9

workers that he intended to file an employee grievance with his

After the administration failed

10

union, and thereafter filed the grievance.

Weintraub, 593 F.3d

11

at 198-99.

12

pursuant to his official duties because they were not required by

13

his job description, school policy, or other relevant

14

regulations.

15

that “under the First Amendment, speech can be ‘pursuant to’ a

16

public employee’s official job duties even though it is not

17

required by, or included in, the employee’s job description, or

18

in response to a request by the employer.”

19

emphasized that the inquiry into whether speech was made pursuant

20

to an employee’s “official duties is ‘a practical one,’” id. at

21

202 (quoting Garcetti, 547 U.S. at 424), focused on whether the

22

speech “was part-and-parcel of his concerns about his ability to

23

properly execute his duties.”

24

(internal quotation marks omitted).

Weintraub argued that his complaints were not made

Id. at 201-02.

We rejected this argument, holding

Id. at 203.

We

Weintraub, 593 F.3d at 203

11

We further noted that

Case: 10-5275

Document: 76-1

Page: 12

09/10/2012

714310

17

1

Weintraub’s speech took the form of an employee grievance, an

2

avenue unavailable to private citizens.

3

the lack of a citizen analogue is not dispositive in this case,

4

it does bear on the perspective of the speaker - whether the

5

public employee is speaking as a citizen . . . .” (internal

6

citation and quotation marks omitted)).

Id. at 203-04 (“Although

7

The inquiry into whether a public employee is speaking

8

pursuant to her official duties is not susceptible to a bright-

9

line rule.

Courts must examine the nature of the plaintiff’s job

10

responsibilities, the nature of the speech, and the relationship

11

between the two.

12

such as whether the complaint was also conveyed to the public,

13

may properly influence a court’s decision.

14

See id. at 201-02.

Other contextual factors,

See id. at 205.

In this case, Ross alleges three instances of protected

15

speech: her reports to Lichtenfeld about improper payments and

16

promotions, her statements to Gargano about the same issues, and

17

her letter to the Board members.

18

that the statements to Gargano were not protected because they

19

were in the nature of an employee grievance, but that Ross’s

20

statements to Lichtenfeld and her letter to the Board were

21

entitled to First Amendment protection because in those

22

instances, in the district court’s view, she was speaking on a

23

matter of public concern, she went outside the chain of command,

24

and her complaints were not in the nature of an employee

The district court concluded

12

Case: 10-5275

Document: 76-1

Page: 13

09/10/2012

17

1

grievance.

2

contends that, although Ross’s speech was on a matter of public

3

concern, it was made pursuant to her duties as a payroll clerk

4

typist and is therefore not protected by the First Amendment.

5

agree.

6

Ross, 755 F. Supp. 2d at 474-75.

714310

Lichtenfeld

We

Ross testified that her job duties included processing the

7

payroll and making sure pay rates were correct.

She stated that

8

if there was a mistake with a pay requisition, her duty was to

9

“bring[] it to the appropriate person’s attention.”

Ross

10

Deposition 64.

She specifically noted that she brought many such

11

requisitions to Lichtenfeld’s attention.

12

learned that overtime for Board action people and performance

13

bonuses without Board approval – the cause of most of her

14

individualized complaints – were improper because she was told so

15

by Lichtenfeld and her supervisor.

16

further stated that she was not able to balance out the payroll

17

without knowing whether certain payments had been approved by the

18

Board.

19

of her role in the District’s payroll system, noting that

20

descriptions of her job consistently refer to it as “clerical.”

21

Appellee’s Br. at 19.

22

bear little resemblance to the duties an employee actually is

23

expected to perform.”

Id. at 100-01.

Id. at 65.

Id. at 89, 95-97.

Ross

She

Ross attempts to downplay the importance

However, “[f]ormal job descriptions often

Garcetti, 547 U.S. at 424-25.

13

Case: 10-5275

Document: 76-1

Page: 14

09/10/2012

714310

17

1

Ross’s testimony makes plain that reporting pay

2

irregularities to a supervisor was one of her job duties.

3

admitted that her responsibilities included reporting mistakes to

4

supervisors.

5

relayed to Lichtenfeld in the ordinary course of performing her

6

work, and she was not able to meet her responsibility of

7

balancing the payroll without resolving pay requisition

8

irregularities on at least one occasion.

9

Lichtenfeld were part and parcel of her official

10

She

Moreover, she acquired all of the information she

Her reports to

responsibilities.

11

Ross urges that she was speaking as a private citizen

12

because she went outside the chain of command by first bringing

13

her concerns to Lichtenfeld instead of her supervisor and then by

14

writing to the Board.

15

included bringing payroll irregularities “to the appropriate

16

person’s attention,” and went on to say that she frequently

17

brought such issues to Lichtenfeld, implying that reporting to

18

Lichtenfeld as “the appropriate person” was within the purview of

19

her job duties.

20

her concerns to Lichtenfeld because she believed her supervisor

21

was ignoring them; and she similarly wrote to the Board only when

22

she believed that Lichtenfeld was not acting on her complaints.

23

Taking a complaint up the chain of command to find someone who

24

will take it seriously “does not, without more, transform [her]

However, Ross testified that her duties

Ross Deposition 64-65.

14

Moreover, Ross brought

Case: 10-5275

Document: 76-1

Page: 15

09/10/2012

714310

1

speech into protected speech made as a private citizen.”

2

17

Anemone, 629 F.3d at 116.

3

Ross’s assertion in her letter that she was writing “on a

4

personal note” rather than as a District employee does not alter

5

our conclusion.

6

is not dispositive.

7

An employee’s characterization of her own speech

Because Ross never attempted to communicate her complaints

8

to the public, she cannot avail herself of the argument that her

9

duties in no way included public revelation of misconduct of

10

district officials that is generally available to the employee

11

who takes the issue public.

12

(where the plaintiff had no such argument as he never

13

communicated with the public).

14

Cf. Weintraub, 593 F.3d at 205

We emphasize that our holding that Ross’s speech was

15

unprotected does not rest on the fact that her speech was made in

16

the workplace as opposed to elsewhere.

17

even in the workplace can be protected as that of a private

18

citizen if it is not made pursuant to the employee’s official

19

duties as an employee.

20

nature of the speech itself and its relationship to the

21

plaintiff’s job responsibilities.

22

complaints about workplace misconduct, while they may be

23

unprotected by the First Amendment if made as part of the

24

plaintiff’s job duties, still may be protected by whistleblower

Speech to a supervisor

Courts must focus their inquiry on the

15

We also observe that

Case: 10-5275

Document: 76-1

Page: 16

09/10/2012

714310

17

1

laws or other similar employment codes.

2

at 425-26; Ruotolo v. City of N.Y., 514 F.3d 184, 189 n.1 (2d

3

Cir. 2008).

4

See Garcetti, 547 U.S.

Finally, we note that this circuit’s recent holding in

5

Jackler v. Byrne, 658 F.3d 225, does not bear on our case.

In

6

Jackler, the plaintiff was a probationary police officer who

7

allegedly witnessed the use of excessive force against a suspect

8

by a fellow officer.

That suspect filed a civilian complaint

9

against the officer.

At the request of his supervisor, and in

10

accordance with written police procedure, Jackler filed a report

11

corroborating the accusation of excessive force.

12

Jackler’s supervisors pressured him to retract the report and

13

falsify his story to protect the offending officer.

14

refused, he was not hired as a full-time officer.

15

The panel concluded that Jackler had a cognizable First Amendment

16

claim because, when he refused to file a false report, he was

17

speaking as a citizen.

18

Id. at 230-31.

When Jackler

Id. at 231-32.

Jackler involved very different circumstances from this

19

case.

The panel emphasized that Jackler had been asked to

20

“retract his truthful statements and make statements that were

21

false,” and determined that “his refusals to accede to those

22

demands constituted speech activity that was significantly

23

different from the mere filing of his initial Report.”

24

241.

Id. at

Indeed, if Jackler had made a false statement to the
16

Case: 10-5275

Document: 76-1

Page: 17

09/10/2012

714310

17

1

police, he would have violated New York law.

2

Jackler is therefore plainly distinguishable on its facts.

3

alleges that she suffered retaliation for making affirmative

4

statements of misconduct to her supervisors, not for refusing to

5

make false statements that no misconduct had occurred.

6

Id. at 239.
Ross

In this case, the speech that prompted Ross’s retaliation

7

claim owed its existence to her job duties and was made in

8

furtherance of those duties.

9

with reporting pay irregularities to her supervisors, and that is

As a payroll clerk, she was tasked

10

what she did here.

Accordingly, her complaints to Lichtenfeld

11

and the Board were not protected by the First Amendment, and

12

Lichtenfeld is entitled to summary judgment.

13

CONCLUSION

14

For the foregoing reasons, the judgment of the district

15

court is REVERSED.

17