Schoolcraft v. The City Of New York et al

Filing 87

Letter addressed to Judge Robert W. Sweet from Joshua P. Fitch dated 5/10/12 re: Counsel for the plaintiff writes to bring to the Court's attention recent supplemental authority relevant to plaintiff's motion to amend the complaint. Document filed by Adrian Schoolcraft. ***Accepted as a docket and file by Chambers. (mro) (mro).

/~-~.2f(
. . ~?\-:s:/
COHEN & FITCH LLP
~I \
\
NY 10279
233 BROADWAY, SUITE 1800
NEW YORK l

v

212.374,91.15
FAX: [phone]
TEL:

May 10~ 2012

BY FACSIMILE
212-805-7925
Honorable Robert W. Sweet
United States District Judge
Southern District of New York

500 Pearl Street
New York, New York 10007

Re:

Schoolcraft. v. CitJ.!. olNew Yor,k, et al.

10 CV 6005 (RWS)

Your Honor:
I am co·counsel for plaintiff in the above·refcrcnced matter. I write now to bring
the court's attention to recent supplemental authority relevant to plaintiffs motion to
amend the complaint in order to add a First Amendment Retaliation Claim,l Specifically,
plaintiff would urge this court consider the holding in Karl v. City of MOulltlake Terrace,
2012 U.S. App. LEXIS 9311 (9 th Cir. March 5, 2012) regarding the legal standard by
which to detennine whether an employees speech was made pursuant to his official job
duties.
In Karl, the Ninth Circuit held that the speech of an employee of the Mountlake
Terrace Police Department did oot <I'owe its existence m nor was it "'commissioned or
created'" by her employer. See Karl, 2012 U.S. App. LEXIS 9311 at ole 19 (citing Garcetti
v. Ceballos, 547 U.S. 410 (2006). More importantly for the motion in the instant ma,tter
is the fact that the Karl court also held in accordance with Garcetti that "[t]he scope and
content of a plaintiff's job responsibilities is a question of fact." Id.; see also Garcetti; 547
U.S. at 424 ("Formal job descriptions often bear little resemblance to the duties an
employee actually is expected to perfonn, and the listing of a given task in an employee's
written job description is neither necessary nor sufficient to demonstrate that conducting
the task is within the scope of the employee's professional duties for First Amendment
purposes. ") .
1 Additionally, plaintiff's were unable to i~sue any reply to defendants opposition because it was submitted
the day before the oral argument on. this issue and thus itselfnot in I;onfonnity with I~ocal Rule 6J(b) nor

did it give plaintiff the appropriate time to issue a reply under same.

This is of particular importance to the issues at play in the present case - namely,
whether plaintiff s speech was a function of his job duties or was he speaking as a citizen.
Given the holding in Karl, which is supported by the holding in Garcetti and Judge
Scheindlin's opinion in Anderson,:l defendants blanket assertions that plaintiffs job
required him to speak regarding matters of corruption and malfeasance witbin the
department are insufficient to meet their burden of proving the futility of these claims
since plaintiffs job responsibilities are a factual issue in dispute at this stage. Similarly,
defendants' reference to the Patrol Guide is of little import in view of the fact that what
an NYPD officer is required to do in reality oftcllhas little or nothing to do with the
Patrol Guide and until this issue is developed in discovery ~ defendant's claims of futility
cannot succeed.
A copy of the Karl decision is attached. Thank you for your consideration of this
request.

Very truly yours,

Cc:

VIAFAX
Suxanna Publicker, Esq.

Assistant Corpora.tion Counsel

The City of New York Law Department

100 Church Street

New York, New York 10007

Gregory John Radomisli

Martin Clearwater & Bell LLP

220 East 42 nd Street~ 13 th Floor

New York, NY 10017

Brian Lee

Ivone, Devine & Jensen LLP

2001 Marcus Avenue, Suite NlOO

Lake Success, NY 11042

2

.5..e£ Anderson

K Stflte
___

of

N~.2>'

York, Office of COUTtAdmin. of Unified, 6.14 F'supp.2d 404, 428

(S.D.N.~. 2009)( Where a publtc employee's speech concerns a government agency's breach of the public
trust, a~ It doc~ h.ere, the speech relates to more than a mere pcrson~J grievance and tht::refore falls outside

Garccttl'S restncttons. ").

Bruce M. Brady
Callan, Koster, Brady & Brennen LLP
1 Whitehall Street
New York, NY 10004

Page 1
2012 U.S, App. LEXIS 9311, ..

7 of236 DOCUMENTS

MARTHA KARL, Plaintiff-Appellee, v. CITY OF MOUNTLAKE TERRACE,

Defendant, and CHARLES CAW, also known as Pete, Defendant-Appellant.

.No. Il-35343

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

2012 U.S. App. LEXlS 9311

.March 5,2012, Argued and Submitted, Seattle, Washington
May 8, 20012, Filed

PRTOR HISTORY: [*1]
Appeal from the United States District Court for the
Westem District of Washington. D.C. No. 2:09-cv­
OI806-RSL. Robert S. Lasnik, District Judge, Presiding.
Karl v. City of Mountlake Terrace, 20 I, U.S. Dist.
LEXIS 41282 (W.D. Wash. Apr. 15.2011)

COUNSEL: Joseph R.

Shaeffer (argued), Andrea
Brennckc, MacDonald Hoague & Bayless, Seattle,
Washington, for the plaintiff-appellee Martha KarL

Brenda L. Bannon (argued), Mark R. Bucklin, Keating
Bucklin & McCormack lnc_ P.S., Seattle, Washington.,
for the defendant City of Mountlake Terrace &. the
defendant-appellant Charles Caw.
JUDGES: Before: Ferdinand F. Fernandez and R.ichard
A. Paez, Circuit Judges, and Lucy H. Koh, District
Judge.' Opinion by Judge Kob.
" The Honorable Lucy H. Koh, District Judge
for the U.S. District Court for the Northern
District of Califomia, sitting by designation.

OPINION BY: Lucy R Koh

OPINION
KOH, District Judge:

Defendant Charles "Pete" Caw ("Caw"), Assistant
Chief of Police in tbe City of Mountlake Terrace Police
l)cpan:mem:.. appeals from the denia.l of qualified
immunity in Plaintiff Martha Karl's ("Karl") 42 u.S.C §
1983 action alleging Fitsf Amendment retaliation. The
district court held it was clearly established in December
2008 that it supervisor cannot retaliate against a public

employee for his or her subpoenaed deposition testimony
["'2] offered as a citizen in the context of a civil I'ights
lawsuit. We affirm.

l. Background
Karl began working for tbe City of Mountlake
Terrace Police Department ("Police Department") in
April 2003 as the Confidential Administrative Assistant
to the Chief of Police, who at that time was Scott Smith
("Smith"). Her job duties were primarily clerical and
included processing time cards, Ol.ttending and taking
minutes at meetings, organizing trainings, answering the
phone, and photocopying.

In 2008, Karl was snbpoenaed to give deposition
testimony in a fecie(al civil rights suit fiJed by former
Police Department employee Sgt. Jonathan Wender
("Wender") against the City of Mountlake Terrace (the
"CityH), Smith, and otbers. Wender's lawsuit ''''as brought
under 42 u.s. C- § J983 for purponed violations of his
Fourteenth Amendment right to due process and his FirSI
Ame~dment right to free speech. Specifically, Wender
alleged that he had been discharged without due process
and in retaliation for his outspoken criticism of the "war
on drugs,"
Karl was deposed by Wender'S counsel in May 2008
and again in July 2008. Among other things, Karl
testified that Wender was outspoken about his views on
the need for ["'3] drug pollcy reform; that Smith and
Caw disapproved of his comments to the press and his
involvement in the organization "Law Enforcement
Against Prohibition;" and that Caw urged Smith to
terminate Wender becCluse other local p~lice agencies
were watching to see whether Smith would take a strong
stance on drug law enforcement. Karl further testified
that Wender had a reputation for honesty, while Smith

Page 2

2012 U,S. App. LEXIS 9311, *
had a reputation for being dishonest, and Caw had a
reputation as a "smooth talker" and a "back stabber."
After Karl's deposition, Caw was overheard commenting
that Karl's testimony "rea.lly hurt" the City, that she could
not be trusted anymore, and that The Police Department
would have to find a way to "get rid Qfher."

In September 2008, Smith was replaced by Greg
Wilson ("Wilson") as Chief of Police. Caw told Wilson
he had some concerns about Karl's work performance as
an administrative assistant. Shortly thereafter. Karl was
involuntarily transferred to a parHime "records
specialist" position within the police Department, where
she was subject to a six-month probationary period and
was placed under Caws direct supervision. Karl's new
position involved computer data entry of reports, ['''4]
citations, and warrant information, though she had no
prior similar data entry experience. According to one
veteran records specialist, a new records specialist with
no prior relevant experience typically requires six to nine
months of full-time work to become proficient at the job.
Nevertheless, just nine weeks after Karl's transfer, Caw
warned Karl that failure to meet certain previously
undisclosed performance targets within three weeks
would likely result in her termination.
One week. later, WHson sent Karl home on
administrative leave following a verbal altercation
between Karl and another new records specialist. Wilson
disciplined only Karl for tIllS incident. Wilson stated that
his deoision was based, in part, on information Caw had
relayed to Wilson <'tbout Karl's criticism of the records
specialist training program. After Karl was placed on
leave, Wilson reviewed her training records, spoke with
Caw, and recommended to City Manager John Caulfield
("Caulfield") -- the only person with authority to hire and
fire employees -- that Caulfield tenninate Karl's
employment. On Wilson's recommendati.on, Caulfield
terminated Karl's employment with the Police
Department in January 2009.
Karl [*5] filed this action in December 2009 under
42 U.S,c, § 1983, alleging retaliation in violation of her
First Amendment rights. t The district court issued an
ord~r on January 11, 2011, granting in part and denying
in part Caw's motion for partial sUI'tlmary judgment. With
respect to Karl's First Ame.ndment retaliation claim, the
the
court determined that: Karl's deposition testimony
Wender lawsuit constituted speech on a matter of public
concern, and Karl's deposition testimony was given in
her capacity as a private citizen, not as a public
employee. On April t 5, 2011, the district court issued
another order granting in part and denying in part Caw's
second motion for partial summary judgment. The court
concluded thilt there was a triable issue of fact as to
whether Caw harbored retaliatory animus based on Karl's
testimony in the Wender lawsuit, and whether Caw set in
motion iii series of actions that caused Karl's tennination.

in

Finally, the court held that Karl's constitutional Tight to
be free from retaUation because of her testimony was
clearly established in 2008, Caw thereafter filed this
interloclltory appeal solely challenging the denial of his
claim to qualified immunity.
The other [·6] defendants named in Karl's
complaint have either been dismissed from the
case or have not appealed, Lil<ewise, no other
claims alleged in Karl's complaint arc before the
court.
II. Jurisdiction Bnd Standud of Review
Although a denial of summary judgment i.s
ordinarily not a final appealable order, we have
jurisdiction under 28
§ 1291 to review a district
court's denial of a claim of qualified irmJ1unity to the
extent the denial turns on an issue of law. Mitchell v.
FONyth, 472 U.S 511,530.105 S. Cr. 2806, 86 L. Ed. 2d
411 (1985). Under the collateral order doctrine, "[o]ur
interlocutory jurisdiction . . . is limited exclusively to
questions of law, which we revi ew de novo." Eng v.
Cooley, 552 F3d J()62, 1067 (9th Cir. 2009) (citing Lee
v. Gregory, 363 F.3d 931, 932 (9th Cir. 2004)). "A
district court's detennination that the parties' evidence
presents genuine i.ssues of material fact is categorically
unreviewable on interlocutory appeal." ld. (citing Lee,
363 F.3d at 932). Where there are disputed issues of
material fact, our review is limited to whether the
defendant would be entitled to qualified immunity as a
matter of law, assuming all factual disputes are resolved,
and all reasonable inferences are drawn,
[*7J in
plaintiffs favor. Mattos v. Agaral1D, 661 F3d 433, 439
(9th Cir. 2011) (en bane).

v.S.c.

HI. Discussion
The

doctrine

of qualified

~overnmcnt o~cjals 'from liability

immunity protects
for civil damages

msofar as theIr conduct docs not violate clearly
established statutory or const.itutional rights of which a
reasonable person would have known,'" Pearson ".
Callahan, 555 U.S. 223,231,129 S. Ct. 808,172 L. Ed.
2d 565 (2009) (quoting Harlow v. Fitzgerald, 457
800.. 818, 102 s. Ct. 2727. i3 L. Ed. 2d 3.96 (1982)). A
public official is entitled to qualified immunity unless (1)
"the facts alleged, taken in the light most favorable to the
party ~se.rting the injury, show that the offtcial's condu.ct
violated a constitutional right;" and (2) the right at i~sue
"was clearly established 'in light of the specific contexl
of the case' at the time of the alleged misconduct."
Clairmont v, Sound Me.1'/Ia/ Health, 632 F.ld 1091,1100
(9th Or. 2011) (quoting Saucier v. Katz. 533 US. 194,
201, !21 S. Ct,.215!, 150 L. E~ 2d 272 (2001)). Wc
e:xer~lse ?llr dl~cretlon to conSIder prong one of the
qualified lT~muDlty analysis first. See Pearson, 555 Us.
at 2$6 (notmg that the sequential Saucier inquiry, while

u.s.

Page 3
2012 U.S. App. LEXIS 9311, '"

no longer mandatory, "is often beneficial" in part because
"it promotes the development of constitutional [*8]
precedent").
A. Constitutional Violation

The First Amendment shields public employees from
employment retaliation for their protected speech
activities. See Garcetti v. Ceballos. S47 US. 410, 417,
126 S. Cr. 19.51, 164 1... Ed. 2d 689 (2006); Connick v.
Myers, 461 Us. 1J8, 140. 103 S. Ct. 1684, 75 L. Ed 2d
708 (J983). Out of recognition for "the State's interests as
an employer in regulating the speech of its employees,"
em1l/ick. 46/ US at ! 40, however, we must "arrive at a
balance between the interests of the [public employee],
as a citizen, in commenting upon matt.ers of public
concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it
perfOl1l1S through its employees," Pickering v. ad. of
Edue., 39/ US 563, 568, 88 S. Ct. 1731,20 L. Ed 2d
811 (1968). We strike this balaTlce when evaluating a
First Amendment retaUation claim by asking Ita
sequential five-step series of questions." Eng, 552 F.3d
at 1070. First, we consider whether the plaintiff has
enga.ged in protected speech actiyities, which require:; the
plaintiff to show that the plaintiff: (l) spoke on a matter
of public concern; iilnd (2) spoke as a private cjti;r.en and
not within tho scope of her official duties as a public
employee. If the plaintiff mCikes these two showings, we
ask (*9] whether the plaintiff has fttrther shown that she
(3) suffered a.n adverse employment actlon, for which the
plaintiff's protected speech was a substantial or
motivating factor. If the plaintiff meets her burden on
these first three steps, thereby stating a prima facie claim
of First Amendment retaliation, then the burden sbifts to
the government to escape liability by establishing either
that: (4) the state's legitimate administrative interests
outweigh the employee's First Amendment rights; or (5)
the state would have taken the adverse employment
action even absent the protected speech. See Robinson v.
York, 566 F.3d 817, 822 (9th elr. 2009); ling. 552 F.3d
at '070; see a/so Lakeside-Scott v, Multnomah Cnty., 556
F:3d 797,803 (9th Cir. 2009),
Here, the parties' dispute concerns only the first,
second, and fifth steps of the analysis.
1. Public Concern

Whether an employee's speech addresses a matter of
public concern is a. pure question of law that must be
determined "by the content, fonn, and context of a given
!'Itatement, as revealed by the whole record." Connick,
461 U.S. at 147-48 & 11..7. Of these three factors, the
content of thc speech is generally the most important.
Clairmont, 632 F 3d at 11 03. [* I 0] "[S]peecb that deals
with 'individual personnel disputes and grievances' and
that would be of 'no relevance to the public's evaluation

of the perfonnance of governmtntal agencies' is
generally not of 'public concern!" Coszalter v. City of
Salem, 320 F.3d 968, 973 (9th Cir, 2003) (quoting
McKinley v. City of Eloy, 70S F. 2 d 1/ /0, 1114 (9th Clr.
/983)). By contrast U[s)pecch involves a matter OfPllblic
concern when it can fairly be considered to rolate to 'any
matter of political, social, or other concern to the
community.'" Johnson v. Multnomah Cnty., 48 F3d 420,
422 (9th Cir. /995) (quoting Connick, 461 U.S. at 146).
Applying these principles to a public employee's
speech in the context of a judicial or administrative
proceeding, we have identi'fied two categories of speech
that satisfy the public concem doctrine.' First an
employee's testimony may be a matter of public concern
if its specific content exposes government. wrongdoing or
helps the public evaluate the performance of public
agencie$, irrespective of the nature of the judicial or
administrative proceeding in which the testimony is
offered. Alpha Energy S(1Vers, 381 F.3d at 927; cf
Thomas

v.

City ofBeaverton, 379 F.3d 802, 809 (9th Cir.

2004) [i'll] (holding that a public employee's expressive
conduct in support of a co-worker in her perf.'\onnel
dispute was a matter of public concern because it helped
expose potential government misconduct). Alternatively,
an employee's testimony may be a matter of public
concern "ifit contributes in some way to the resolution of
a judicial or administrative proceeding in which
discrimination or otber significant government
misconduct is at issue - even if the speech itself would
not otherwise meet the Connick test were we to consider
it in isolation." Alpha Energy Savers. 381 F.3d at 927;
see Robinson, 566 F.3d at 823 (holding tnat a police
sergeant's te:;tirnony in a class action discrimination
lawsuit addressed a matter of public concern, regardless
of the specific c(lntent of the testimony or its impact on
the outcome of the suit). Just as speech whose content
expo!les potential government misconduct is speech on a
matter of public concern, so too is spcech made in the
context of litigation brought to expose such wrongful
conduct. See Alpha Energy Savers, 38l F.3d at 926.27,
"So long as either the public employeets testimony or the
underlying lawsuit meets the public concern test, the
employee [II< 12] may, in accord with Connick, be
afforded constitutional protection against any retalia.tion
that results:' Jd at 927.
2
We have previously declined to decide
whether a public employee's testimony is per se a
matter of public concern regardless of its content
Of the type of proceeding in which it is offered.
See Clairmont, 632 F.3d at 1/(}3; Alpha Energy
Savers. Inc. 'V. Hansen. 381 F.3d 917. 926 n.6
(9th Cir. 2004). We again decline to decide thjs

question because in this case, as in our previous
ones, the content, form, and context of Karl's
testimony cstablis;h that her speech related to a

Page 4
20 l2 U.s. App. LEXIS 9311,

matter of public concern.
TIl.!s is not a "close case." Johnson, 48 F..3d at 425.
Karl's testimony rises to the level of a publ1c conce~

because it was offered in the COl.1fse of a § 1983 laW$Ult
aUezing violation of constirudonal ri~hts,. Wender:s
allegations that the City and Chief of Police VIOlated hlS
First and Fourteenth Amendment rights clearly
implicated the exposure of "significant government
misconduct," Alpha Energy Savers, 381 F.3d at 927, and
the allegations involved more than "a simple reference to
govern~ent functioning," Desrochers v. Ciry of San
Bernardino, 572 F.3d 703, 711 (9th Or. 2009). [*13]
Caw's attempt to characterize Wender's lawsuit as merel,)'
a "private gri.evance" about a personnel matter is
therefore without merit. Compare Brownfield ". City oj
Yakima, 612 F.3d 1140, 1147-48 (9th Or. 2010) (police
officer's interoffice memo critici7,:ing his colleague's

competence and complaining of favoritism in work
assignments was "the stuff of internal power struggles
within the workplace" and "decidedly personal")
(internal quotation marks and citation omitted);
Desrochers, $71 F.3d at 711 (police sergeants' formal
grievance criticizing their supervisor's management style,
read in context, addressed only private grievances).
Furthermore, because Karl's deposition testimony was
offered in the context ot a judicial proceeding addressing;
a matter of public concern, it is immaterial to our public
concern analysis whether the specific content of Karl's
testimony independently exposed potential government
wrongdoing or even "whether it had an impact on the
result" of Wender's litigation. Robinson, 566 P,3d a1823.
Finally, we see no material distincti.on between
subpoenaed deposition testimony and testimony in open
court, where bOtll are offered in the context of a Judicial
or administrative (*14} proceeding alleging government
misconduct. Caw argues that testimony given during a
deposition, which is often conducted in the private
confines of a law firm, differs from testimonY elicited in
court, which is open to the public. We have re cogni7.ed
that the public has a lesser First Amendment interest in
accessing pretrial discovery materials. See Kamakana v.
City & County o/Honolulu, 447 F. 3d J172, 1179-80 (9th
Cir, 2006) (holding parties to a lower standard when they
seck to file under seal documents attached to non~
dispo$itive rather than dispositive motions); .see also
Seattle Times Co. v. Rhinehart, 467 U.S. 20, JJ, 104 S.
Ct. 2199, 81 L. Ed. 2d 17 (1984) (holding that a
protective order prohibiting the disclosure of pretrial
discovery does not offend the Firsr Amendment). We see
no basis, however, fo)' affording a. lower level of First
Amendmeru protection to a subpoenaed deponent than to
a witness at trial. Both offer sworn testimony. Bolli have
the potential to "'bring[ ] to light potential or actual
discrimination, corruption, Of other wrongful conduct by
government agencies or officials.'" Clairmont, 632 F.3d
at 1104 (quoting Alpha EnergySave,.~. 381 F.3d at 925).

*'

Both "contribute in some way to the resolution [* \ 5] of
a procecdin& in which a matter of public concern is at
issue." [d. (quoting Robin-von) 566 F. 3d at 8~3).
Furthennore, whi.le the public may not have immedIate
access to p~ivatc deposition testimony, such testimony
may later become a matter of public judicial record, for
example jf attached to a summary judgment motion. See
Kamakana. 447 F.3d at 1179-80. At that point, the
deposition testimony would reach as broad an audience
as would the courtroom testimQny. Cf Desrochers. 572
F.3d at 714 (explaining that, while not dispositive, one
factor to be weighed is whether the speech is made
publicly or to a limited audience). A rul~ .protect~g an
employee from retaliation for her depOSItIon testImony
only after the testimony had been made part of the public
record would be both unworkable and unjustified.)
Tn a recent decision extending absolute
immunity under 42 u.s. C § 1983 to grand jury
witnesses, the Supreme Court "[saw] nQ :sound
reason to draw a distinction for this purpose
between grand jury and trial witnesses,"
notwithstanding the secrecy of grand jury
proceedings. Rehberg v. Paulk, 132 S. Ct. 1497,
1500, 182 L. Ed. 2d 593 (2012). Trial witnesses
have long been afforded absolute immunity from
civil [* 16] suit based on their testimony because
without such immunity, "the truth-seeking
prQceS$ at trial would be impaired." Id. at 1$0.5.
The Court reasoned in Rehberg that "[t]he factors
that justify absolute immunity for trial witnesses
apply with equal force to grand jury witnesses."
Id. Although here we deal with a different form
of speech protection, we similarly hold that the
factors justifying First Amendment protection
against retaliation for trial witnesses apply with
equal force to subpoenaed deposition witnesses.
3

In sum, we conclude that the content, form, and
context of Karl's testimony support the district court's
conclusion that her speech was au a matter of public
concern.

l, Spcllkcr Status
Next, we consider whether Karl's deposition
testimony waS givcn in her capacity as a private citizen
or pursuant to her official job duties, which is a mixed
question of law and fact. Po.w!.y v..Lake Pend Oreille Sch.
Dist. No. 84, 546 F.3d 1 J21, 1129 (9th Cir. 2008). The
scope and content of a plaintiff's job responsibilities is a
question of fact over which we lack jurisdiction, while
"the ultimate constitutIonal significance of the
[undisputed] fact,,," is a qu.estion oflaw. hi,; see Eng, 552
P.3d at 1071. [* 17] Here. Karl testified that her duties
did not include reporting police misconduct, nor did they
include reporting or testifying about the City's internal
investigation processes. We lack jurisdiction to review

Page 5
2012 U.S. App. LEXIS 9311,
the district court's finding of a genuine issue of material
fact regarding the scope of Karl's duties. Instead, we
assume resolution of thls dispute in Kart's favor, and
confine our review only to the district court's conclusion,
as a matter of law, that Karl was speaking as a privat.e
citizen during her deposition in the Wender litigation,
and not as a government employee.. See Robil1Son. 566
F.Jd af 824.
4 We note that, unlike thl1: plaintiff in Huppert v.
Cily of Pittshu.rg, 574 F.3d 696 (9th Cir. 2009),

Karl is not a police officer whose duty under state
law is to testifY truthfuUy as part of her
professional responsibilities. See 574 F.3d at
707-08 (holding that, under California law,
"ft]estlfying before a grand jury charged with
i~~estjgatlng corruption is one part of an. officer's
job," and therefore "any speech Huppert gave
during his grand jury testimony was pursuant to
bi~ duties as a potke officer") (internal quotation
marks and brackets omitted).
A public employee's speech ["'181 is not protected
by the First Amendment wheu it i$ made pursuant to the
employee's official job responsibilities. Garcetti. 547
U.S. at 426. The Supreme Court has explained that "work
product" which "'owes its existence to i'l public
employee's professional responsibilities" is not protected
by the First Amendment beca.use an employer may
"exercise ... control over what the employer itself bas
commissioned or created." Id. at 421-22; see Eng, 552
F.3d at 1075. "[I]fthe public employee was paid for the
speech .- e.g., drafting a memorandum, creating a report,
advising a supervisor - then that compensation might be
indicative of the nature of the speech." Huppert. 574
F. 3d at 704. Conversely, a public employee's speech on a
matter of public concern is protected "if the speaker 'had
no official duty' to make the questioned statements•...
or if the speech was not the product of 'perform[ing] the
tasks [the employee] was paid to perfonn.'" Posey, 546
F.3d at 1127 n.2 (some internal quotation marks omitted;
alterations added in Posey) (quoting, respectively,
Marable v. Nitchman, 5Jl F'.3d 924, 932-33 (9th Cir.
2007), and Freitag v. Ayers, 468 F.3d 528, 544 (9th Ci7'.
2006)).

Caw suggests two [*19] reasons why he thinks
Karl's testimony "owes its existence" to her job: (1) her
relevant knowledge was acquired by virtue of her
position as the Confidential Administrative Assistant to
the Chief of Police, and (2) she was paid her regular
salary during her deposition. Both of these arguments
miss the mark. Vv'hile Karl's knowledge about certain
work-related matters may owe its exi:;tence to hor job as
a confidential assistant, her testimony in the Wender
litigation does not. That Karl was subpoenaed to testify
on matters related to her employment is not dispositive.
The Supreme CO\lrt has rei.terated tbat U(t]he First

*

Amendment protects some expressions related to the
speaker's job." Oarcetti, 547 US at 421; see also
Clairmont, 632 F.3d a/ n05. Furthenno re , though her
employer may have paid her regular salary while she was
being deposed, Karl's testimony in the Wender litigation
was the product of a. subpoena and cannot fairly be
characterized as "commissioned or created" by the City.
Garutti. 547 U.S. at 422. The di.strict court did not err in
determining that Karl spoke as a private citizen in the
WeHder litigation and not purSllant to her official job
duties. See Clairmont, 632 F ..~ci at J105 [*20] (holding,
on similar facts, that the evidence supported a finding
that the plaintiff's subpoenaed testimony was spoken as a
private citizen).
3. Btlt-For Cauliiation

lfthc plaintiff satisfies her burden at the third step of
establishing that her protected speech was a substantial
or motivating factor behind the adverse employment
action, the government's burden at the fifth step is to
show that: (1) "the 'adverse employment action was
based on protected and unprotected activities;'" and (2)
"the state 'would have taken the adverse action if the
proper reason alone had existed.'" Eng. 552 F.3d at 1072
(quoting Knickerbocker v. City afStockton, 81 F.3d 90i,
91 J (9th Cir. 1996)) (emphasis added in Eng). Known as
the "MI. Healthy' but-for causation inquiry," the fifth step
of our analysis is purely a question of fact and requires us
to assume, on summary judgment, the truth of the
plaintiffs version of disputed issues. [d. "Immunity
should be granted on this ground only if the state
successfully alleges, without dispute by the plaintiff, that
it would have made the same employment decisions even
absent the questioned speech." {d.

5 See Mr. Healthy City Sch. Dis!. Ed. of Educ. v.
Doyle, 429 U.S. 274. 287. 97 S. Ct. 568, 50 L. Ed
2d 471 (J977).

Caw ["'2 t1 argues that, even if a jury were to a.gree
with Karl that Caw was motivated in part by rctaliatory
animus, he Is entitled to qualified immunity because, as a
subordinate supervisor, he merely forwarded objective
evaluations of Karl's job perfom3nce, and these negative
reviews provided the nonretaHatory basis for Karl's
discipline and tennination. A subordinate officer who is
not the final decision maker can still be Hable under S
1983 if he n'set[s) in motion a series of aets by otbds
whkh the actor knows or reasonably should know would
cause others to inflict the constitutional injury.'" Gilbrook
v. City oj We.ytminster, 177 F. 3d 839, 854 (9th ctr. 1999)
(quotillg Johnson v. Duffy, 588 F.2d 740. 743-44 (9th
Cir. 1978)) (explaining tbat a final decision maktt's
nonretaliatory employment decision "does not
automaticaHy immtlnize a subordinate against liability
for her retaliatory acts"). Nonetheless, Caw may avoid
liability jf he shows that a "final decision maker's

Page 6
2012 U,S. App. LEXIS 9311, ,.
independent investigation and, ten.ni~a:i?n decision,

responding to a biased subordmate s .ml~:al report ~f
misconduct, . . , negate[s] any causal hnk between. hiS
retaliatory motive and the aaverse employment actIon.
LakeSide-Scott, 556 F.3d at 804. [*22] This is because a

final decision maker's wholly independent investigati.on
and decision cstabHsh that "the employee's protected
speech was not a but~for cause of the . ~dverse
employment action." Eng, 552 F.3d at 1072 (cltmg Mt.
Healthy, 429 us. at 287).

Here, the record before the district court revealed
evidence that Caw was motivated by retaliatory animus
in: (1) relating to the new Chief of Police that Karl's
work as a Confidential Administrative Assistant was
deficient; (2) :;eeking to transfer Karl to a position where
he could directly supervise her; (3) encouraging her to
aJ;cept the position by reminding ber she could be fired jf
she rc fused: (4) imposing unreasonable and arhitrary
performance targets on Karl alone; and (5) advising
Wilson that Karl was critical of the training program and
had made inadequate progress in her new position as a
records specialist. The eourt further found disputed
issues of material fact as to whether Wilson conducted an
independent investigation into Karl's performance that
would sever the causal link bet'IVeen Caw's retaliatory
motive and Karl's tennination. Althol,lgb Caulfield was
the only individual with authority to tenninate Karl, the
district [*23] court determined that Karl adequately
adduced evidence showing that Caulfield's decision was
based whoUy on Wilson's recommendation, which, in
tum, was based on information provided by Caw. These
findings of disputed issues of material fact are
unreviewable on interlocutory appeal. See Eng, 552 F,3d
al 1067. Thus, viewing the record in the light most
favorable to Karl, we cann.ot say that Caw has met his
burden to show that tbe City would have fired Karl even
in the absence of her protected speech activities. The
district court therefore correctly held that Karl adequately
alleged a violation of her Fir$t Amendment free speecJl
rights, and that Caw is not entitled to qualified immunity
on this ground.
B. Clearly

Establi.~hed

Having determ.ined that Karl has alleged a
constitutional violation, we next consider whether the
"contours" of Karl's . First Amrmdment right were
"'sufficiently clear' that every 'reasonable official would
have understood that what he is doing violates that
right'" Ashcrqft v. a/-Kidti _
Us. --' 131 S, Ct.
2074, 2083, 179 L. Bd ld 1149 (2011) (quoting
Anderson 'Ii. Creighton, 483 Us. 635, 640. 107 S. Ct.
3034, 97 L. 5d 2d 523 (1987)). "Wllethel" the l4iw was

clearly established is an objective standard~ !:he
defendant's ["24J 'subjective understanding of the
constitutionality of his or her conduct is irrelevant. III
Cia;rmont, 632 F.3d at 1 J09 (quoting F'ogl!il'. Collins,

531 F.3d 824, 833 (9th eir. 2008)). Qualified immunity

is desio-ned "to ensure that before they are $ubjected to
suit, officers are on notice their conduct is unlawfuL"
Saucier 533 U.S. at 206. We therefore consider whether
existing law at the time of Caw's conduct in 2008
provided him !'fair notice" that the First Amend;n~nt
prohibits retaliating against an employee for provldmg
subpoenaed deposition test.imony during another person's
civil rights lawsuit. Hope v. Pelzer, 536 U.S. 730, 739,
122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). In answering
this question, we bear in mind tlmt "'closely analog.ous
preexisting case law is not required to show that a rIght
was clearly established.'" Robinson, 566 F.Jd at 826
(quoting HUfford v. McEttaney, 249 F.3d 1142, I} 48 (9th
0,.. 2001)); see Fogel, 531 F.3d at 833. Indeed,
"officials can still be on notice that their conduct violates
established law even in no"(;\ factual circumstances."
Hope, 536 U.S. at 741; see Porter v. Bowen. 496 F.3d
}009. 1026 (9th Cir. 2007). On the other hand, we
recognize tJlat the claimed right cannot be aefined [*2.5J
at too higll a "level of generality." Anderson., 483 US. at
639.
Although there i$ no case in our circuit with the
same facts as those presented here, a reasonable official
in Caw's position would have known that it was unla.wful
to retaliate against an employee for providing
subpoenaed deposition testimony in connection with a
civil rights lawsuit alleging government misconduct.
First, a reasonably competent official would have
known that a public employee's subpoenaed deposition
testimony addresses a matter of public concern when it i:;
given in connection with a judicial or administrative
proceeding involving allegations of "significant
government misconduct," Alpha Energy Savers, 381
F.3d at 927, It bas been clearly established since at least
2004 that judicial and administrative proceedings arc
matters of public concern when they seek to expose
"potential or actual discrimination, corruption, Of other
Vl-Tongful conduct by government agencies or officials."
Id. at 925; see also Robinson. '66 F. 3d at 823. Caw was
therefore on notice that Wender's § 1983 action was a
matter of public concern, for any rcasonabk official
would know that unlawfully retaliating against a public
employee for [*26) his protected. speech activities
constitutes "significant government misconduct.
Furthermore, we have held that it was clearly established
since at least 2007 that testifYing pursuant to a subpoena
in a judicia.\ or administrative proceeding of public
concern constitutes protected speech. S(JlJ Clail"mOJ1l, 632
F.3d at 1109. Although none of our carlier cases
specifically addressed subpoenaed deposition testimony
as opposed to testimony in open court, our holdlngs have
not been so narrowly cabined that Caw could reasonably
have believed subpoenaed deposition testimony was
exr:luded from the First Amendment~~ ambit of
protection." See.. e.g., Alplta Energy Savers, J81 F.3d at
II

Pa.ge 7
2012 U.S. App, LEXTS 931 t, '"
925 (holding that not only the employee's testimony at
the grievance hearing, but also "the affidavit that homed
and his agreement to be listed as a potential witness,"
were entitled to protection).

6

Caw's attempt to seek shelter in what ho
characteriz.es as an out-of-circuit split of authority
is equally unavailing, Compare Morales v. .Jones,
494 F.3d 590, 595 (1th Cir. 2007) (holding that a
police officer's deposition in a fel10w officer's §
1983 action alleging unlawful retaliatlQn was
protEcted speech), with Morris v. Crow, 142 F. 3d
l379, 1382-83 (llth Or. 1998) [*27] (per
curiam) (holding that a police officer's deposition
testimony in another individual's vvrongful death
suit was not protected speech where the testimony
merely parroted the contents of an accident report
"generated in the nonnat course of his duties as
an accident investigator"). Far from creating a
circuit spllt regarding the protected status of
deposition testimony per se, the different
conclusions reached in Morales and Morris
merely illustrate the different treatment afforded
speech made as a pri\lste citizen and speech made
pursuant to one's official duties. See Huppert, $74
F.ld at 709 (discussing Morales approvingly and
explaining that "California's courts have never
said that it expects its police officers to assist
others in their individual civjJ suits against
presen.t or former employers").
Second, a reasonable official would also have known
that a public employee's speech on a matter of public
concern is protected if the speech is not made pursuant to
her Official job duties, even if rlle testimony itself
addresses matters of employment. See Gareetti, 547 U.S,
at 421; Eng, 552 F.3d a{ 1075-76 (citing Mt. Healthy,
429 u.s. at 284; Pickering, 391 Us. at 568); Posey, 546
F.3d at 1126-27. [*28J Caw argues that Garcctti
"materially altered: ',' {t)he legal landscape of public
employment constltutlonal law" by constraining the
scope of a public employee's protected speech activities.
As we explained in Eng, however, "Garaetti concluded
only that 'work ptoduct' that 'owes its existence to [an
employee J's profess ional responsibilities' is not protected

by the First Amendment." Eng, 551 F.3d at 1075
(quoting Garcetli, 547 Us. at 422). Notwithslanding
GarceUi, we held in Eng, as we do here, that "[t]hcrc
could be no confusion
. . that when [plaintiff!
commented upon matters of public concern as a citizen
and /lot pursuant to his job responsibilities, his speech
was protected by the First Amendment _. tbat rule had
long been the la.w of the land." !d. (intcrnal quotation
marks, citations, and alterations omitted), Garcetti in no
way altered Karl's clearly established Flrst Amendment
right to give subpoenaed deposition testimony in the
Wender litigation in her capacity as a private citizen.
without facing retaliation as a result.
Finally. it was clearly established at the time of
Caw's conduct that a subordinate officer can be liable
under § 1983 for retaliating against an employee ["'29]
even if he also has legitimate, non-retaliatory motives.
Under the "mixed motive" analysis established by MI.
Healthy, the intensely fact-bound question is simply
whether the employer "would have reached the same
[adverse employment] decision even in the absence of
the [employee's] protected conduct." Ulrich v. City &
Cnty. 0/ SF., 308 P.3d 968, 976·77 (9th Cir. 2002);
a.ccord Mt. Healthy, 429 US. at 287; Thomas, 379 F.3d

at 808. Furthermore, we held in 1999 that "a subordinate
cannot use the nonretaliatory motive of a superior as a
shield against liability if that superior never would have
considered a dismissal but for the subordinate'S
retaliatory conduct." Gilhroo/r., 177 F.3d at 855.
~l.IS, the relevant principles were all clearly
establrshed long before the events in question such that
"every reasonable official would have understood that
'
what he is doing violate[dJ" Karl's First Amendment right
to be free from retaliation." a!~Kidd, 13l S, Ct. at 208.1
(citation and internal quotation marks omitted).

.IV. Conclusion
For the reasons discussed herein, the district court's
?enial .of .summary judgment Oil the basis of qualified
Immuntty IS AFFIRMED.

COHEN & FITCH LLP
233 BROADWAY, SUlTE 1800

NEW YORK, NY 10279

TEL: [phone]

FAX: [phone]

FAX FORM
DATE: May 10, 2012

TO:

Honorable Robert W. Sweet, United States District Judge

FIRM OR COMPANY:
Cc;

Southern District of New York

Suzanna Pubticker, Esq. (212-788-9776)
Assistant Corporation Counsel
Gregory Jolm Radomisli (212-949-7054)

Martin Clearwater & Bell LLP

th
220 East 42 nd Street, 13 Floor

New York, NY 10017

Brian Lee (516-352-4952)

Ivone, Devine & Jensen LLP

2001 Marcus Avenue, Suite NIOO

Lake Success, NY 11042

Bruce M. Brady (212~248-6815)

Callan, Koster, Brady & Brennen LLP

1 Whitehall Street

New York, NY 10004

FROM: Cohen & Fitch llP
PAGES (including this page):

4 J!

If you did not receive all of the pages, please contact the sender as soon as possible.

MESSAGE;

Schoolcraft v. City ofNew York. et af
J 0 CV 6005 (RWS)

NOTE TO fAX OPERAIQB; The fnfonnation contslned in this Facs.lmile message Is legally privileged
enCf confidential information In/snded only for the uSe of ths individual or ISnllty named abDve. If the rflader
of this message is nol the Intencted recipient. yOtl 8ro hereby notified that any dissemlnallon. distribution or
copying of this facs/mlfe is strictly prohibited. If you receive this F=scsimile in error. please Immediately
notify us by telephone and retum the original message to us at the address above vis the United States
Postal saNics. Thank you.