Montero v. City of N.Y.
890 F.3d 386
2d Cir.2018Background
- Raymond Montero, a Yonkers police officer and union vice-president, criticized Police Commissioner Hartnett and union president Keith Olson at two Yonkers PBA meetings (June 2010 and Feb. 2011).
- After those remarks, Montero alleges a campaign of retaliation by Olson and his allies (Mueller and Moran): unauthorized investigations, loss of overtime/pay, transfer to less desirable assignment, threats, office vandalism, and eventual expulsion from the PBA.
- Montero sued under 42 U.S.C. § 1983 for First Amendment retaliation against the City of Yonkers, Olson, Mueller, and Moran.
- The district court dismissed under Rule 12(b)(6), holding Montero spoke pursuant to his official duties (not as a private citizen) and thus was not protected by the First Amendment.
- The Second Circuit reversed in part: it held Montero’s union remarks (as pled) were made as a private citizen and addressed matters of public concern, vacated dismissal as to Olson, affirmed dismissal of Moran and Mueller on qualified immunity grounds, and affirmed dismissal of the City (Monell) claim for failure to plead municipal policy/ratification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Montero spoke as a private citizen (Garcetti inquiry) | Montero spoke in his capacity as union officer, not as part of police duties, so he is a citizen when criticizing cuts and Hartnett | City defendants argued union remarks lacked civilian analogue and were at least tangentially related to job duties, so not citizen speech | Court: Speech was not part-and-parcel of official duties; Montero pled he spoke as a private citizen — district court erred to dismiss on this ground (vacated as to Olson) |
| Whether the speech addressed a matter of public concern | Montero: criticism of cuts to units (domestic violence, burglary, community unit) and no-confidence vote implicated public safety and community interests | Defendants: statements were personal/union rivalry and made at closed meetings; primarily self-interested political ambition | Court: Remarks about manpower cuts and public-safety effects and no-confidence vote sufficiently plead matters of public concern |
| Whether Moran and Mueller are individually liable despite protected speech | Montero: defendants directed retaliatory acts and so are liable | Moran/Mueller: even if acts occurred, qualified immunity protects them because law was not clearly established regarding protection for union speech in these circumstances | Court: Affirmed dismissal as to Moran and Mueller — qualified immunity applies because protection for this specific union speech was not clearly established at the time |
| Municipal (Monell) liability of City of Yonkers | Montero: YPD ratified/condoned retaliatory conduct and adopted an unwritten policy permitting it | City: no plausible allegation that policymakers ordered, knew of, or ratified subordinate misconduct | Court: Affirmed dismissal — Montero failed to plead facts showing municipal policy, final policymaker direction, or ratification/deliberate indifference |
Key Cases Cited
- Garcetti v. Ceballos, 547 U.S. 410 (public-employee speech is unprotected when made pursuant to official duties)
- Lane v. Franks, 134 S. Ct. 2369 (speech related to public employment may still be citizen speech)
- Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir.) (union grievance may be part-and-parcel of job duties; lack of civilian analogue relevant)
- Jackler v. Byrne, 658 F.3d 225 (refusal to falsify report was citizen speech; civilian-analogue indicium)
- Ross v. Breslin, 693 F.3d 300 (reporting pay irregularities was within job duties; not citizen speech)
- Matthews v. City of New York, 779 F.3d 167 (2d Cir.) (inquiry: official duties and civilian analogue)
- Pickering v. Board of Education, 391 U.S. 563 (public employees protected when speaking as citizens on matters of public concern)
- Connick v. Myers, 461 U.S. 138 (content, form, context test for public-concern inquiry)
- Monell v. Dept. of Social Servs., 436 U.S. 658 (municipal liability requires policy, custom, or final policymaker action)