Bennett et al v. County Of Rockland et al

Filing 101

MEMORANDUM AND ORDER sustaining 98 MOTION for Judgment as a Matter of Law Pursuant to FRCP Rule 50(b). When they signed the letter of June 9, 2016 to the Rockland County Legislature, plaintiffs spoke as private citizens and note solely as public employees. On this record, no reasonable jury could have found otherwise. Accordingly, the Court sustained plaintiffs' motion for judgment as a matter of law on this issue. IT IS SO ORDERED. (Signed by Judge Kathryn H. Vratil on 3/24/2020) (jca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
ANN COLE-HATCHARD et al.,

)
)
Plaintiffs,
)
)
v.
)
)
COUNTY OF ROCKLAND et al.,
)
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 17-2573-KHV

MEMORANDUM AND ORDER
On April 10, 2017, employees of the Rockland County Probation Department and their
labor union, Civil Service Association, Inc., Local 1000 AFSCME, AFL-CIO, Rockland County
Local 844, County of Rockland Unit 8350 (“CSEA”), filed suit against Rockland County and
Kathleen Tower-Bernstein, the County’s Director of Probation. Complaint (Doc. #1). Plaintiffs
alleged that Kathleen Tower-Bernstein retaliated against them in violation of 42 U.S.C. § 1983 for
exercising their rights under the First Amendment. Specifically, plaintiffs asserted that TowerBernstein retaliated against them for signing a letter which was dated June 9, 2016 and addressed
to the Rockland County Legislature.

From February 19 to February 24, 2020, the Court

conducted a jury trial. On February 21, 2020, at the close of all evidence, plaintiffs orally moved
for judgment as a matter of law regarding whether they spoke as private citizens or solely as public
employees. For reasons stated below and on the record at trial, the Court sustained the motion.
I.

Legal Standards
Under Rule 50(a)(1), Fed. R. Civ. P., the Court may grant judgment as a matter of law

when “a party has been fully heard on an issue during a jury trial and the [C]ourt finds that a

reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that
issue.” Fed. R. Civ. P. 50(a); Piesco v. Koch, 12 F.3d 332, 340 (2d Cir. 1993). Thus, the Court
may sustain a motion for judgment as a matter of law where there is such a complete absence of
evidence that no reasonable juror could find in favor of the non-moving party. See Samuels v.
Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993). In evaluating the merits of the motion,
“the [C]ourt must view the evidence in a light most favorable to the nonmovant and grant that
party every reasonable inference that the jury might have drawn in its favor.” Hannex Corp. v.
GMI, Inc., 140 F.3d 194, 203 (2d Cir. 1998) (quotation omitted); Wimmer v. Suffolk Cty. Police
Dep’t, 176 F.3d 125, 134 (2d Cir. 1999).
To sustain a First Amendment retaliation claim, plaintiff must prove the following
elements: (1) the First Amendment protects her speech or conduct; (2) defendant took adverse
action against her; and (3) a causal connection exists between the adverse action and the protected
speech. Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015). Whether the First
Amendment protects the speech of a public employee is a two-part inquiry. Id. (citing Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006)). The first step of the inquiry encompasses two separate subquestions: (1) whether the subject of the speech was a matter of public concern and (2) whether
the employee spoke as a private citizen rather than solely as a public employee. Garcetti, 547
U.S. at 418; Jackler v. Byrne, 658 F.3d 225, 235-36 (2d Cir. 2011). The first sub-question of step
one – whether the subject of the speech was a matter of public concern – is a purely legal question
for the Court.1 See Connick v. Meyers, 461 U.S. 138, 148 n.7 (1983); see also Jackler, 658 F.3d

The Court has determined, for reasons stated elsewhere, that plaintiffs’ speech was
on matters of public concern. Memorandum And Order (Doc. #84) filed December 5, 2019.
1

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at 235. Plaintiffs seek judgment as a matter of law on the second sub-question of step one –
whether the employee spoke as a private citizen rather than solely as a public employee.2
To determine whether plaintiffs spoke as private citizens rather than solely as public
employees, the Court asks whether (1) the speech fell outside of their official job responsibilities
or duties and (2) a civilian analogue exists. Matthews v. City of New York, 779 F.3d 167, 173
(2d Cir. 2015).
II.

Analysis
Plaintiffs asserted that they are entitled to judgment as a matter of law because no record

evidence supports defendants’ argument that the letter of June 9, 2016 was part of their official job
duties as probation department employees. They asserted that “no plaintiff, indeed nobody in the
Department of Probation, other than, presumably, the director, had any job duty that involved
relaying that information outside the chain of the command to the legislature.” Trial Transcript
(“Tr.”) at 565. In response, defendants asserted that plaintiffs spoke as public employees when
they signed the letter of June 9, 2016 because it concerned the effect of the move on their ability
to execute their job responsibilities. Tr. at 571-572.

2

Courts disagree whether this issue is a question of law or a mixed question of law
and fact. See, e.g., Jackler v. Byrne, 658 F.3d 225, 237 (2nd Cir. 2011) (“Whether the employee
spoke solely as an employee and not as a citizen is largely a question of law for the court.”); Posey
v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008) (mixed question of
law and fact); Brown v. Office of State Comptroller, 211 F. Supp. 3d 455, 465 (D. Conn. 2016),
aff’d in part, appeal dismissed in part sub nom. Brown v. Halpin, 885 F.3d 111 (2d Cir. 2018)
(question of law for court but highly fact-dependent). In this case, the Court need not decide
whether this question is one of law or a mixed question of law and fact because the Court’s decision
is the same under both standards.
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A.

Whether The Speech Fell Outside Of Plaintiffs’ Official Job Duties

The inquiry into whether public employees spoke pursuant to their official duties is not
susceptible to a bright-line rule. Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). The Court
considers several factors, such as the nature of plaintiffs’ job responsibilities, the nature of the
speech and the relationship between the two. Id.; Eyshinskiy v. Kendall, 692 F. App’x 677, 678
(2d Cir. 2017). In addition, the Second Circuit has held that when public employees whose duties
do not involve formulating, implementing or providing feedback on a policy that implicates a
matter of public concern engage in speech concerning that policy, and do so in a manner in which
ordinary citizens would be expected to engage, they speak as citizens, not as public employees.
Matthews, 779 F.3d at 174.
Here, plaintiffs are probation officers and administrative employees of the probation
department. Each plaintiff testified, and none stated that her job duties involved writing to public
officials or “formulating, implementing or providing feedback on a policy.” Id. No evidence
supports the conclusion that writing to the Rockland County Legislature was part of their official
job duties.3
Furthermore, defendants’ argument that plaintiffs spoke as public employees because they
were concerned about the effect of the move on their ability to carry out their jobs duties is

3

Citing Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), plaintiffs also argued that
even if the letter of June 9, 2016 was pursuant to their job duties, it was still protected speech
because plaintiffs took the letter outside the chain of command. Tr. at 565-67. The Court need
not address this argument because it finds that when they signed the letter, plaintiffs spoke as
private citizens and not solely as public employees.
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misplaced.4 See Tr. at 571. The Court has already determined that the letter of June 9, 2016
addressed more than plaintiffs’ concerns about their ability to do their jobs. Specifically, the
Court has determined that the letter addressed, “among other things, the Probation Department’s
role in the court system, potential of relocation to cause revenue loss and costs to the County,
safety of employees and clients at the new location, and the Probation Department’s ability to meet
client needs.” Memorandum And Order (Doc. #84) at 4.
In sum, when they signed the letter of June 9, 2016, plaintiffs spoke as private citizens –
not solely as public employees.
B.

Whether The Speech Had A Relevant Civilian Analogue

The Court also considers whether plaintiffs’ speech had a civilian analogue. Matthews,
779 F.3d at 172. The existence of a civilian analogue is satisfied so long as the employees “chose
a path that was available to ordinary citizens.” Id. at 176. As long as public employees pursue
an avenue that an ordinary citizen could when they complain to a governmental actor or entity, the

4

To support their argument, defendants cited Waronker v. Hempstead Union Free
Sch. Dist., 788 F. App’x 788, 792 (2d Cir. 2019), cert. pet. filed Jan. 15, 2020, and Weintraub v.
Bd. of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 203 (2d Cir. 2010). Neither
of these cases compel a different result.
In Waronker, the Second Circuit held that a school superintendent did not speak as a private
citizen when he publicly accused the school district of corruption. The court held that rooting out
corruption and mismanagement was part and parcel of the superintendent’s daily work
responsibilities. In Weintraub, the Second Circuit held that when a public school teacher
challenged the school administration’s decision to not discipline a student in his class, he spoke
pursuant to his official duties because the speech was part and parcel of his concerns about his
ability to properly execute his duties. The court determined that the teacher’s speech was a means
to fulfill, and undertaken in the course of, performing his primary employment responsibility of
teaching. Id. (citations omitted). Here, the record does not support a conclusion that plaintiffs’
speech was part of their job responsibilities as probation department employees, or a means to
fulfill them, or undertaken in the course of performing them.
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Court will find that the employees’ actions have the requisite civilian analogue. Id. at 174.
Here, plaintiffs signed a letter to the Rockland Count Legislature. Ordinary citizens have
the ability to write letters to local officials, and the record does not contain evidence that this
avenue was only available to public employees. Plainly, plaintiffs chose an avenue that was
available to anyone.
III.

Conclusion
When they signed the letter of June 9, 2016 to the Rockland County Legislature, plaintiffs

spoke as private citizens and note solely as public employees. On this record, no reasonable jury
could have found otherwise. Accordingly, the Court sustained plaintiffs’ motion for judgment as
a matter of law on this issue.
IT IS SO ORDERED.
Dated this 24th day of March, 2020 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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