462 F. App'x 79
2d Cir.2012Background
- Kaplan alleges First Amendment retaliation for reporting misconduct by his supervising officer Crisafi.
- Kaplan reported to the New York State Inspector General under Executive Law §55(1) concerning corruption, fraud, abuse, or related misconduct.
- The district court dismissed the complaint under Rule 12(b)(6); the Second Circuit reviews such dismissal de novo.
- Kaplan’s reports alleged rights violations, misrepresentation of credentials, improper use of lights/siren, and other alleged misconduct by Crisafi.
- The court held Kaplan’s Inspector General reporting was made pursuant to his employment duties, so he acted as a public employee, not a private citizen, and his speech was not protected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Kaplan's IG reporting protected by the First Amendment? | Kaplan contends his reports were citizen speech deserving First Amendment protection. | Speech was made pursuant to Kaplan's official duties and not as a private citizen. | Not protected; reports pursued as part of employment duties. |
| Did Kaplan’s speech arise from employment duties under Garcetti/Wientraub analysis? | Speech was independent of duties and thus protected. | Speech was in furtherance of Kaplan’s duties and part of his job responsibilities. | Speech was in furtherance of employment duties; not protected. |
| Does dismissal under Rule 12(b)(6) survive given the above? | The complaint adequately stated a First Amendment retaliation claim. | No, because the speech was unprotected and the retaliation claim fails on that basis. | affirmed; district court dismissal affirmed. |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (Supreme Court 2006) (speech made pursuant to official duties not protected)
- Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir. 2010) (speech related to professional responsibilities)
- Skehan v. Vill. of Mamaroneck, 465 F.3d 96 (2d Cir. 2006) (three elements of retaliation test)
- Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011) (distinguishes private citizen vs employee when required by law)
- Fowlkes v. Adamec, 432 F.3d 90 (2d Cir. 2005) (de novo review of Rule 12(b)(6) standard)