Monroe Hale v. Louis Mann, Deputy Commissioner, Sued in His Individual Capacity and the State of New York Office of Children and Family Services

might it subject ering any state law issues wish to are delinquency of juvenile cation appeal. in connection with this §§ 380.1 381.2 resolve of the restrictions ings lieve, subject to questions what use those of may importance sections be made of are, we be- the State proceed- ^[*] CERTIFICATE ^{[*] [*] [*] [*]} likely again. to arise New York and are hereby of is certified to the foregoing guidance of seek the We therefore of of New York Appeals State Court Appeals. of New York Court §Rule pursuant to Local 0.27 Unit- Appeals of for the Second

ed States Court permits § us nos- Comp.Codes Rule 0.27 R. & Regs, Local and N.Y. Circuit certify highest 22, 500.17(b), § to the state’s sponte tra tit. ordered Unit- ques significant Appeals “unsettled and for the any court ed States Court of Second out law that will control the tion of state Circuit. pending before this Court.”

come of a case of of the United States Court

Local Rules 0.27; § see the Second Circuit

Appeals for tit. Comp.Codes, Regs. R. &

also N.Y. 500.17(a) (1999) (permitting certification Appeals York of Court New law of New York questions

“determinative prece controlling

... for there is no which HALE, Plaintiff-Appellant, Because, Monroe Appeals”). dent of the Court rules, certifica applying these we believe case, certify in this appropriate tion Commissioner, MANN, Deputy Louis York questions to the New following capacity individual sued of Appeals: Court New York Office of The State of Chil Supreme Court’s Is the New York Family Services, Defen dren and stating order that Green commitment dants-Appellees, ofiadjudicated a Juvenile “convicted No. Docket 99-7326. for of Reckless crime[ ] Delinquent Degree” to be treat- Endangerment 1st Appeals, Court United States equivalent Family ed as the Court Circuit. Second juvenile adjudication delinquency Oct. Argued §§ purpose 380.1 and 381.2 of Act? Family Court May Decided (2) By places §a suit that bringing question

into issues that were necessari- in its Supreme

ly resolved Court recklessly that Green endan-

decision Montgomery, has

gered Officer Green New rights all under

waived law deter-

York not to those state him, against the re-

minations held collaterally estopped can

sult that he be relitigating Supreme

from Court’s

findings?

The manner in which we have framed way is in meant questions

these no consid- Appeals

restrict the Court from Sussman, Berg- (Stephen H.

Michael brief) of Michael stein, Law Offices on the Goshen, Plaintiff- N.Y. H. Sussman Appellant. Buchbinder, Attor- Assistant R.

Marion York of New of the State ney General General, (Eliot Attorney Edward Spitzer, General, Mi- Johnson, & Deputy Solicitor Belohlavek, Attorney Assistant chael S. brief) York, for General, N.Y. New Defendants-Appellees. MINER, KEARSE, AND

Before: CABRANES, Judges. Circuit A. files CABRANES Judge JOSÉ opinion concurring opinion separate dismissal of the with the in connection claim, Act but and Medical Leave Family of the from the reinstatement dissenting claim. First Amendment MINER, Judge: Circuit Hale Monroe Plaintiff-Appellant judg- (“Hale”) summary from a appeals defendants-appellees, in favor ment York Office of Children New The State of (“OCFS”) Louis Family Services (“Mann”), Commissioner Deputy Mann States OCFS, in the United entered in District for Southern District Court /.). (Brieant, York New Youth position as from his was terminated (“Director”) New Facility Director Goshen, York New Secure Center York subsequently (“Goshen He Facility”). been that he had alleging brought suit rights under of his fired violation Act of Leave Medical Family and seq., et (“FMLA”), § 2601 29 U.S.C. February On the First Amendment.1 defen- granted court the district summary judgment, dants’ motions leave post-FMLA Hale’s that concluding FMLA and violate the did not firing motivated was not firing part. on his protected speech follow, we affirm For reasons fur- remand for part, part, vacate § 1983. U.S.C. brought pursuant to-42 claim was 1. His First proceedings ther opin- consistent with this Facility Goshen part of an “effort to address, ion. management safety is-

sues” that were arising at the Facility. OCFS asserts that problems numerous BACKGROUND were presence discovered: of contra- Hale was hired as Director of sharp metal and cash in resident’s band — Facility, Goshen an 85-bed residential rooms and tools and screws the voca- youth facility operated by OCFS. OCFS’ are,a; tional designated room as the responsibilities care, providing include “key room” in disarray; and residents treatment, security for offenders possessed gang-related material. More- placed in its custody by the courts. At all over, personnel OCFS observed un- pertinent appeal, times to this the Goshen cooperative residents were allowed out of Facility juvenile housed male delinquents. staff, their unaccompanied rooms by po- Director, As policy Hale served in a influ- tentially leading to assaults. The search encing position at pleasure held the also cleanliness, revealed concerns about responsible Governor and was for the ad- job the performance of one of Hale’s assis- management ministration and of the Gosh- tants, and supervision. overall lack of Due Facility, en including imple- its effective search, to the results of this Deputy one of mentation safety security and measures. assistants, Commissioner Mann’s Brenda position required also him to estab- Flanagan (“Flanagan”), spoke with Hale. relationship lish a with community the and Mann, via Flanagan, directed Hale to initi- seek to maintain community “harmonious policies ate new at the Facility. Goshen relations.” particular, Mann asserted that 1Wing Hale, According to conditions at the should longer no be used to counsel dis- Facility Goshen disarray were in when he residents, ruptive but should instead be over; safe, took the staff did not feel only used for residents in- restricted to assaults on the residents and staff were room confinement. The defendants assert duties, common. After Hale assumed his that Hale carry failed to out policies their funding for the Goshen Facility decreased dealing prob- initiatives for with these violent, and the residents became more lems. prompting thus security increased con- 20, 1997, September On affray an broke cerns. out at the Goshen Facility, injuring staff. Starting began OCFS to alter The generated press fracas negative cover- procedures the employed at the Goshen age concerning violence at Facility, Facility. OCFS contends that it was prompting political debate about conditions Hale’s failure to implement proce- these there. By letter September dated dures which led to continued breakdowns Pollack, Robert P. one of Mann’s and Hale’s security eventual termination subordinates, informed Hale that Mann hand, as Director. On the other Hale wanted Hale to conduct an investigation policies contends that prob- OCFS led to into September 1997 incident. lems at the Facility Goshen and that his Seeking respond to to Mann’s request, discharge was objections due to his to member, Hale asked a staff Stephen Lang- misguided policies. event, OCFS’ In any bein, to investigate report. all seem agree to that conditions at the Langbein’s investigation revealed that Facility Goshen had become than less de- “agency policies practices, adopted sirable late security 1997—numerous implemented Mann, by ... signifi- had breakdowns and altercations among the cantly contributed to a decline staff

residents were occurring at that time. safety.” Hale Affidavit at Langbein’s

In January personnel OCFS con- report highlighted written a factor that ducted an unannounced search of the Hale superiors had indicated to his was ex- and concerns” “thoughts to the tile at conditions unsafe to the contributing re- Langbein report, which in the pressed to deal failure Facility: OCFS’ Goshen conveyed prior volatile, Hale’s views aggressive flected the most some “with and in discus- spe- supervisors3 was report The letters state.” youths that he forward- estab- changes Langbein, with policy sions cifically critical let the use because he wanted to regard report with ed the lished Mann really It “what Facility. recom- know and others Goshen 1 at the Commission Wing According facility:” the staff permit happening at OCFS mended that use prior report Hale, expressed to resume their views Facility Goshen disruptive resi- counseling were common matters that 1 for Wing addressed OCFS’ report questioned also facilities. dents. all OCFS age youths over regard policy upset about content Apparently eighteen. the Commis- sent to that Hale report submitted previously to a response should sion, Hale that he Mann told S. of Correc- report, the Commission incident report to central first forwarded (“Commission”),2by letter dated Octo- tion further stated Mann S. administration. investigative requested ber (while holding was “this close” that Hale 20, 1997 September report regarding apart) one approximately inch Angers his of all incidents incident; a breakdown Hale, According to job. having a to not January Facility the Goshen between he threat- that was the first time this was 1997; the number and of and October im- termination, it and occurred ened with jail as a result to moved of residents incensed became after “Mann mediately his re- Langbein had submitted incident. 20, September reporting with [Hale’s] 20, mem- Hale via an October port on Cor- to the Commission 1997 incident 10, November By letter dated orandum. rections.” report Steve 1997, Hale submitted 1997, leave Hale took sick In December (“S.Mann”), Mann’s one subor- Mann began After Hale job-related stress. de- public ongoing Aware dinates. leave, deter- S. Mann stress-related his Facility, at the Goshen safety over bate be considered Hale that would mined the Com- response to presumably and 1,1998. January as of FMLA leave appears Hale request, prior mission’s report to the copy a have also sent perceived were about what Concerned Commission. of the Goshen continuing problems as unan- another conducted 1997, OCFS Facility, S. dated November

By letter Facility on Goshen search nounced Langbein’s report that Hale Mann wrote of his Because 1998. January 13 and “numer- it made unacceptable because was from Goshen leave, Hale was absent and included comments” editorial ous search occurred. this at the time Facility opposed to as concerns” “thoughts and since six weeks approximately had been It information.” “only factual containing According to sick leave. taken he had were hos- superiors his Hale asserts fa local correctional operations of state and awith wide is entrusted 2. The Commission Chinlund, Misc.2d McNulty v. administration See variety in aid of cilities. tasks (N.Y.Sup.Ct. in New York state. N.Y.S.2d facilities correctional gover things, it advise the Among 1977). must other appropriate concerning correctional facil nor visit, appraise the inspect, and ity policies; September example, in a 3. For facilities; management of state correctional memorandum, “these stated that had facilities; pro correctional close unsafe from going to benefit who are never residents regulations for mulgate rules appropriate . like a system ... are cancer being in our Law N.Y. Correct. inmates. See the care of They must facility's a environment. disrupts 1999-2000). It Supp. (McKinney 1987 & § 45 ...” surgically removed be who oversee of three members consists Hale, the search did not result following termination completion disciplinary against measures other where, staff here, his leave he holds a members, any weapons nor were illegal or noncompetitive policy position with no However, contraband found. the defen- expectation permanent employment, dants contend that the search revealed and defendants nonpretextu- articulate a ‘dirty’ ‘unkempt’ “Goshen was still al reason for his removal based on ..., ‘disorganized’ and contraband was events which prior occurred going to his abundant both in common areas and the on leave. gives The statute no greater residents’ rooms.” job security than that to which the em- ployee would have been prior entitled

Allegedly’because of dismay over the taking leave. search, results of this Mann subsequently stated to Flanagan that Hale go” “had to The court rejected also Hale’s First January letter dated 1998 in- claim, noting that Lang- formed Hale that he was terminated as report bein prepared by was not Hale and Facility Director, effective January that Langbein, himself an employ- OCFS objections After attorney Hale’s ee, had subjected not been to retaliation. Flanagan concerning Hale’s FMLA The court concluded that “there no [wa]s status, changed Mann the effective date of evidence that his rights First Amendment 25, 1998, termination to March the date speak out on public matters of concern when expired. FMLA leave Be- .Hale’s were a motivating factor in his demotion.” OCFS, cause he held a tenured status with Because the court found no evidence to demotion, termination resulted in support jury finding in favor of Hale’s subsequently he reassigned to an claims, the court found it unnecessary to job, inferior salary with lower and'fewer qualified reach immunity Mann’s defense. responsibilities, in City, New York far appeal This followed. from his home. DISCUSSION 2, 1998,

On March Hale brought suit Summary judgment only appro alleging that his FMLA and First Amend- priate'when moving party shows that rights ment had been violated his ter- there are genuine no issues of material answer, mination as Director. In its fact and that it is entitled to judgment as a OCFS invoked the doctrine of sovereign matter of law. Corp. See Celotex v. Ca immunity regard to the FMLA claim. trett, 317, 322, 2548, 477 U.S. 106 S.Ct. At 91 the close of discovery, OCFS and Mann (1986); 56(c). L.Ed.2d 265 Fed.R.Civ.P. moved for summary judgment, asserting Applying appeal, a de novo review on that Hale’s claims were without merit and “must view the evidence in light most that defendant Mann was entitled quali- to' favorable to non-moving party and fied immunity any regard event with draw all reasonable inferences in its favor” the First Amendment claim. The district to determine whether the district court’s court granted the defendants’ motion on grant of 25, summary judgment was 1999, proper. February finding genuine no is- Bank, Corp. Consarc v. Marine Midland sue of material fact as to either claim. N.A., 568, (2d Cir.1993); 996 F.2d 572 see respect claim, With to the FMLA the court Turner v. General Motors Acceptance held that the statute prevent does not 451, Corp., Cir.1999); 180 F.3d 453-54 following termination completion Airlines, Inc., Stagl 463, v. Delta 52 F.3d FMLA leave: (2d Cir.1995). 466-67 The right employed to be during the FMLA period leave protect extends to The FMLA Claim employee’s an benefits salary during period. the leave This Mr. Hale re- Before discussing Hale’s conten ceived. The prevent statute does FMLA, not tions under the we must address

67 competent jurisdiction.” court of to or State it is entitled contention OCFS’ 2617(a)(2). 216(b); § § 29 U.S.C. immunity from suit 29 U.S.C. Amendment Eleventh assertion, language use of this identical Congress’ of sover This the FMLA. under y passed FMLA in the later jurisdictional from the FLSA implicates eign immunit interpretation turn to our Tribe Florida causes Seminole us concerns. See 44, 72-73, v. Florida, 116 S.Ct. intent Close Congress’ abrogation 517 U.S. v. (the (2d Cir.1997). (1996) 31, York, 1114, Eleventh 36 L.Ed.2d 252 New 125 F.3d judicial power Close, language “restricts we held that this Amendment III”); State Sch. Pennhurst intent to abro Article evidenced “a clear under FLSA Halderman, 89, 100, immunity by 465 U.S. Hosp. sovereign & v. gate the States’ (1984) (the 900, 79 L.Ed.2d 67 courts.” Id. We allowing 104 S.Ct. suit in federal of Eleventh Amendment jurisdictional bar use of the Congress’ are convinced the nature of applies regardless similarly re in the FMLA language same States Sher sought); United relief abrogate intent to Eleventh veals a clear cf. 584, 586, wood, 61 S.Ct. 312 U.S. immunity and thus satisfies Amendment (“[T]he terms of [the L.Ed. 1058 Tribe test. prong first of the Seminole sued, consent be States’] Goord, United F.Supp.2d McGregor v. See to en jurisdiction that court’s (N.D.N.Y.1998). court define suit.”). Re Parella v. But see tertain the However, pro- is more prong the second Employ the Rhode Island tirement Bd. of Tribe, only After Seminole blematic. (1st 53-57 Sys., Ret. ees’ congressional abroga- potential source for Cir.1999) of Elev (finding that assertion Amendment. See tion is the Fourteenth immunity impli does Amendment enth Close, recently As we 125 F.3d at 37-38. Atas jurisdiction); III Article cate cf. Muller, explained Scanlon, 473 U.S. Hosp. v. cadero State Amend- the Fourteenth 5 of Section L.Ed.2d 105 S.Ct. ap- Congress to enact empowers ment (finding that Eleventh its sub- to enforce propriate legislation waived), superseded immunity may be including Equal provisions, stantive Rights Remedies respects by Civil other appro- A statute is Protection Clause. 1986, 42 Amendment of Equalization Equal priate legislation to enforce Our review 2000d-7. U.S.C. adapted plainly it is clause if Protection de novo. Amendment issue is Eleventh by if it not prohibited end and is to that Costello, 298, 307 v. 187 F.3d Muller See the letter and but is consistent Cir.1999). Katzenbach spirit of the Constitution. Tribe, Supreme Court In Seminole 651, U.S. 641, 86 S.Ct. 384 Morgan, v. two-part determining test for a articulated (1966) ... 1717, [H]ow- L.Ed.2d 828 16 Congress abrogates of an act whether § 5 ever, power under Congress’s ... immunity. Eleventh states’ injuries linked to constitutional must be (1) has Congress whether The test asks “congruence be a there must abro- an intent to unequivocally declared harms to proportionality” between (2) whether immunities gate states’ remedy. statutory and the prevented be a valid pursuant acted to Congress has Flores, 521 U.S. [City Boerne v. of power. See 517 U.S. exercise of its 138 L.Ed.2d 117 S.Ct. 116 S.Ct. analysis “proportionality” This ]. by Florida Pre further refined Fair La has been the FMLA and the Both (“FLSA”), Expense Postsecondary Education paid Act of 1938 bor Standards Bank “for College Savings ]: that an action Board seq., provide § [v. 201 et U.S.C identify § it must to invoke Congress of each be maintained for violations may the Fourteenth transgressing conduct any employer respective “against statute provisions, Amendment’s substantive any Federal (including public agency) reasons, and must legislative compelling tailor its scheme to and for family on a basis; gender-neutral remedying preventing or such conduct.” [2199,] 2207, (5)to U.S. S.Ct. promote goal equal em- L.Ed.2d 575 [ ]. ployment opportunity for women and men, pursuant to such clause. (some marks, quotation internal altera- 2601(b). § 29 U.S.C. omitted). tions, and footnotes The FMLA generally requires covered FMLA, opening section employers grant employees who have Congress found that “due to the nature of (or for worked twelve months 1250 hours in our society, roles of men women months) up in twelve to twelve weeks’ responsibility the primary family for care- for, period leave during twelve month women, taking often falls on and such re- alia, inter serious health condition that “a sponsibility working affects the lives employee perform makes the unable to women more than it the working affects position functions of the of such employ- 2601(a)(5). § lives of men.” 29 U.S.C. 2612(a)(1)(D). § ee.” 29 U.S.C. It also Congress found that further “there is inad- protects an employee discharge from or equate job security employees for who if employer demotion an that action is prevent have serious health conditions that employee’s motivated taking of working them from for temporary peri- pursuant leave to the FMLA. See 29 ods,” 2601(a)(4), § “employ- id. and that 2614(a)(1); § e.g., U.S.C. see Chaffin apply ment standards that one gender Co., (5th H. John Carter only potential encouraging serious for Cir.1999). rights These are the articulated employers against employ- to discriminate in the FMLA that are at issue here. applicants employment ees and for who question us before is whether this 2601(a)(6). § gender,” are of that id. grant of twelve weeks’ leave to deal with light findings, Congress passed of these one’s own serious health condition is “con- the FMLA: gruent” “proportional” goal to the (1) to balance the demands allowing family “minimizfing] leave while families, workplace with the needs of potential employment for discrimina- promote stability and economic secu- tion on the basis of sex.” 29 U.S.C. families, rity promote and to national 2601(b)(4). compelled We are to answer preserving family integrity; interests in negative. recognize that it We (2) to entitle employees take rea- Congress for to assess in the first instance reasons, sonable leave for medical legislation what is needed secure child, adoption the birth or of a and for rights guaranteed by the Fourteenth child, spouse, the care of parent or Amendment and that order “to deter condition; who has a serious health thereunder,” rights guaranteed violation (3) to accomplish purposes the de- Congress may “prohibit[ a somewhat ] (1) (2) in paragraphs scribed and in a broader swath of conduct.” Kimel v. Flor- — that legiti- manner accommodates the -, -, Regents, ida Bd. U.S. of mate employers; 631, 644, (2000). interests of 120 S.Ct. 145 L.Ed.2d 522 However, legislation sweeps here too (4) accomplish purposes to de- analysis, wide. In the final the insur- paragraphs scribed in and in a mountable hurdle in this case is the entire- that, manner consistent with Equal ly gender-neutral rights focus of the con- Protection Clause of the Fourteenth by provisions ferred the FMLA at issue. Amendment, potential minimizes the employment discrimination on the basis of light Congress’ specifical- failure to by ensuring generally of sex that leave ly find that are disproportionately women conditions,” eligible is available for medical reasons affected “serious health (including maternity-related disability) gender-neutral grant this leave is over- of age by to minimum U.S. respect this seded in that no evidence is broad. There Const, amend. XXVI. leave is federally protected conferment employment remedy sex-based tailored to Thus, Congress find that not we did Instead, grossly it seems discrimination. authority abrogate to have the sover- try to to disproportionate and ineongruent of the states on aris- eign immunity claims with discrimination sex remedy intentional provisions at issue Its ing under the here. that, in words of Seventh a statute congruent or attempt to do so was Circuit, rights” “creates substantive targeted by the proportional to the harms permit that do not entitlements” “statutory important It is Fourteenth Amendment. it by saying that “defend employer to an however, note, pass only that we on to Diaz v. identically.” employees all treated here, provisions at issue medical particular Foundry Corp., 131 Wayne Fort one’s own “serious leave to deal with Cir.1997). (7th By making “substan- condition,” health U.S.C. rights, employees’ in state change” tive 2612(a)(1)(D), the related retaliation § “reme- power its to exceeded Congress has 2614(a)(1), section, at least when see id. actions.” unconstitutional prevent or dy conjunction Section used Boerne, at 117 S.Ct. 521 U.S. City of 2612(a)(1)(D). 2157; at 117 S.Ct. also id. see resolution of Eleventh Although our a sub Congress has (“Any suggestion portion of precludes the Amendment issue stantive, power under non-remedial FMLA, briefly we Hale’s suit under supported is not Fourteenth merits, lack or in this case address law.”). conferred rights by our case thereof, in the alternative. are “so out this case by the FMLA in this the FMLA caselaw circuit While pre supposed remedial or to a proportion recently an FMLA sparse, addressed that it cannot be understood object ventive discharge employment of improper claim to, prevent, designed or responsive & Douglas v. Elliman-Gibbons Sarno 532, 117 behavior.” Id. at unconstitutional Cir.1999). Inc., Ives, F.3d 155 S.Ct. Samo, employee went plaintiff Moreover, health conditions “[s]erious a hernia condition. leave due to FMLA family necessarily related are not period permit twelve week Following the v. Uni- Garrett gender discrimination.” statute, to return to he was unable ted Birmingham Bd. at versity Alabama He terminated. subse work (11th Cir.1999), Trus., suit, alleging brought quently — ——, 120 part, U.S. granted cert. had been the FMLA violated. rights under (2000). While 146 L.Ed.2d 479 S.Ct. grant court’s the district We affirmed neces “acknowledge[d] the has the Court cor for the defendant summary judgment preven strong remedial and sity using termination finding that Sarno’s poration, ... racial respond to tive measures infringe “did not period at the end of that discrimination,” measures have often these ... un it rights [was] FMLA because tangible evi by direct supported been per unable ... he disputed [was] necessary prevent they were dence that ... functions of his form essential prevented. City to be sought the harm at 161. We also considered position.” Id. 2157; Boerne, S.Ct. 521 U.S. claim that his FMLA rejected Sarno’s Mitchell, 400 Oregon U.S. compare employer’s the infringed by rights were (1970) 260, 132, 272 27 L.Ed.2d 91 S.Ct. enti him that the FMLA failure to inform history long it a (“Congress had before up to twelve work him to a leave of tled tests to discriminatory literacy use of the at 161-62. weeks. See id. on of their voters account disenfranchise case, alleges Hale race.”) /., present (Black, announcing judg the FMLA. in violation of that he was fired super- and concurring), ment of the Court However, claim employee we find this without merit. “in commenting upon matters of argues To the extent that he that he public concern and the interest of the State, fired while FMLA improperly leave as an employer, in promoting the status, that the we find facts of this case efficiency public per- of the it services Instead, clearly contrary. are to the 568, through employees.” forms its Id. at evidence before the district court estab- 88 S.Ct. 1731. lished that Hale’s termination as Director Preliminary to this balancing occurred after his FMLA leave ended. process, plaintiff “a ... initially must receipt indicating His of a letter that his demonstrate by preponderance 15, discharge January was effective on (1) speech evidence that: was constitu is without significance, because OCFS (2) tionally protected, an he suffered ad subsequently changed the effective date of decision, employment verse a caus his termination. al connection speech exists between his Moreover, to the extent that Hale con- employment and the adverse determina tends he in was fired retaliation for his Lindau, tion him.” against Morris v. leave, FMLA find we also that contention 102, Cir.1999). If plain unsupported by evidence sufficient to cre- tiff meets burden of establishing these genuine ate a issue of material fact. Al- factors, employer the burden shifts to the though the true reason for his dismissal is to establish that “it would have taken the dispute, infra, in see presented Hale has employment same adverse action ‘even no evidence indicating that the termination ” protected absence of the conduct.’ decision was related to his FMLA leave. (quoting Id. Healthy City Mount Sch. sum, presented Hale has no facts 274, Dist. Bd. Educ. v. Doyle, U.S. violation, support FMLA rendering 287, (1977)). 568, 97 S.Ct. 50 L.Ed.2d 471

it unnecessary proper us to address the employee’s an speech Whether addresses scope of the inquiry FMLA and whether public a matter of concern pro and is thus Douglas shifting the McDonnell burden tected under the First Amendment is “one applies retaliatory test in FMLA discharge law, Morris, not fact.” 196 F.3d at 110 cases this circuit. Connick, 7, (citing 461 U.S. at 148 n. The First Amendment Claim 1684). hand, S.Ct. if On other there public employee

“[A] does not re significant questions are as to whether an linquish First Amendment to com rights employer discharged would have an em public ment on matters of by interest vir ployee but speech, summary for his/her government employment.” tue of Connick judgment precluded. See id. Myers, v. 461 U.S. 103 S.Ct. case, In our parties dispute whether (citing 75 L.Ed.2d 708 Picker engaged protected speech and Educ., ing Board 391 U.S. whether his termination as Director was (1968)). 88 S.Ct. 20 L.Ed.2d 811 by speech. motivated As an initial Nevertheless, a government employer has matter, determine, defendants ask us to an interest in promoting public efficient accordance with the decision of the district employees may service its regulate court, that forwarding Lang- employees’ speech. its See id. Because report protected bein is not under resolution of the conflict between these First Amendment because he did write two competing interests involves a fact- report. specific inquiry, Supreme Court has record, “lay general find, refused to down a reviewing standard After below, all against may which such statements contrary be to the district court that a judged.” Pickering, genuine 391 U.S. at issue of material fact exists Instead, regard adopted report S.Ct. the Court has in to whether Hale weigh speech structed us to the interests of the and made it of his own forward- (2d. Cir.1999) (contacting the F.3d 130 OTB report to Commis- Langbein the ing . Inspector impro alleged in the General about evidence record There is sion. OTB);. Cowen, A superiors’ policies. prieties at Lewis objected to his Hale — (2d Cir.), denied, that he voiced F.3d 154 cert. U.S. fact could conclude trier of -, directly 120 S.Ct. 145 L.Ed.2d 60 management to these concerns Langbein (objections lottery policies the to new voiced to and via his submission Although Gaming Policy by Connecticut Board lot the report to Commission. official); Schlegel, Blum v. F.3d prepar- tery to Hale the task of assigned Mann (2d Cir.1994) 1005, 1012 (“speech advocat delegated and Hale the report, the ing may adopted ing legalization marijuana, criticiz Langbein, to Hale task report jury ing drug policy, as own. A national control and debat Langbein ing implicates the unal- civil disobedience on its face by forwarding could find concern”); public matters of Bieluch v. report, Hale endorsed the views ex- tered (2d Cir.1993) Sullivan, thereby engaged in it and in inde- pressed (Defendant’s “speech concerned tax support expen of this pendent expression. ditures, construction, budgets, that Hale for- town school position, there is evidence by petition a report right transmit- and the for referenda— Langbein warded the concern.”). (and public utmost This signature to Mann matters of tal letter over his Commission) just matter affected not internal precisely because he Goshen to the administration, but, Facility by as policy.4 influence shown wanted to OCFS consideration of the is Commission’s hand, rational factfinder the other a On Langbein report, issues sues raised on could find the evidence this also subject public of ongoing that were Hale and that point is insufficient if Accordingly, discourse. the factfinder orders, engaging not simply following adopted report determines that Hale The' district independent expression. report copy when he forwarded a this issue on impermissibly court resolved report, superiors, then the as a matter merely resurrect summary judgment; we law, protected contains First Amend it for the factfinder to decide. a matter of expression addressing ment Next, we address whether re public concern. Hale, if a mat port, adopted by addressed Nevertheless, ad we must still public Although the dis ter of concern. speech Hale’s was the cause dress whether question in the trict court answered this reviewing of his termination. After negative, we find that determination erro record, genuine find that there is also a neous. We conclude that as a matter fact to whether Hale’s issue of material law, report pub addressed matter of unaccepta firing was motivated proper lic administration of concern: Facility ble administration of the Goshen ju for the incarceration of State facilities objecting protected speech or Hale’s (“As Morris, at 110

veniles. See policies practices governing to the rule, matter,of speech ‘any general operation Facility. of the Goshen social, concern to the political, or other submitted evidence protected by the First The defendants have community’ Amendment.”) Connick, properly implement ap- not (quoting 461 U.S. that Hale did 1684); Facility. propriate at the Dangler policies v. New Goshen S.Ct. be- Betting Corp., They contend that he was terminated City York Track Off divulge agency disputes had opposition to that I his affidavit in to defendants’ stated, summary judgment. agency policies motion for our on matters with the public importance. I was and Steve Mann both knew that of considerable Lou Mann Langbein expressed required shared the views document to the I send this my forwarding report the act of Commission. on Corrections was intended Commission at deteriorating inability appropriately manage cause of the conditions his in the Facility, January as demonstrated Facility Goshen and that if he in engaged particularly 1997 search more the Jan- protected speech, no causal connection ex- uary present 1998 search. The defendants that speech ists between and his termi- indicating other that their evidence dis- Hence, nation. weigh we need not Hale’s- predated agreements with the sub- speech against public free interest his em- that, Langbein report mission of the ployer’s efficiency under the bal- interest search, January after troubling ancing Pickering. test established Cf. Mann felt to be terminated Hale needed as Dangler City v. New York Track Bet Off Director. (2d ting Corp., 193 F.3d 139-40 Cir. hand, 1999) (addressing On the other Hale has submitted the “defendants’ conten jury to create a ques- sufficient evidence they tion that were [the entitled to fire tion as to the true reason for his dismissal. plaintiff] because of wrong his accusations significantly, presented Most Hale has evi- doing inherently disruptive.”); were Lewis although superiors may dence that Cohen, Cir.1999) v. 165 F.3d him have been dissatisfied with for an (accepting the claim defendants’ that their period, suggestion extended the first “interest in the effective and oper efficient terminating him as im- Director occurred ation of the Spe [Connecticut Division of mediately Langbein report after the cial outweighed plaintiffs] Revenue] [the submitted the Commission. He also interest”).5 First Amendment presents that indicating evidence the re- Lastly, position we take no on the defen- January sults of the 1998 search were not qualified immunity, dants’ claim of al- disturbing portray as as defendants though skeptical viability we are its and thus that the actual reason for his light allegations of the nature at issue. may have been based on dismissal v. McEvoy Spencer, 124 F.3d Langbein report. Although the defen- Cf. (2d Cir.1997) (finding that the defendants catalogued many dants have deficiencies qualified immunity were entitled to searches, during uncovered the timing First Amendment claim because decision, of the termination immediately unsettled status of the law at the time of Langbein report, after submission of the violation). alleged explanation. casts some doubt on this that allegation We note there is no case that the Lang- this submission CONCLUSION report operation

bein disturbed the normal genuine Since there are issues of materi- OCFS, or particularly more the Goshen fact concerning adoption al Facility, implicate so as OCFS’ interest Langbein report expression his own promoting provision efficient pub- for merely lic services. The defendants have the reason Hale’s dismissal as Director they asserted that fired Hale preclude summary judgment, because of we va- they 5. We also note that the properly defendants have not would still have to establish that him, policymaker policymaker may characterized Hale as a ar- nor demoted since still gued they protection could demote him because of be entitled to First Amendment Instead, Lewis, ("The they merely speech. that status. char- See 165 F.3d at 162 position "policy-influ- policymaking discharged acterized Hale's aas status of the or de- encing position, pleasure employee very significant held at the moted Governor,” balance, (alter- conclusive.”) up purport- Pickering and never linked but not decision, (em- omitted) (quoting McEvoy Spencer, ed status with their termination ations added). Moreover, (2d Cir.1997)). phasis possible Hale's sta- See also 124 ("The policymaker employee's job tus as a was not addressed more the and, raised, ..., properly requires policymaking greater district court if is more ... firing expression left for that court to address on remand. state's interest her for (alteration employer.”) the event it is determined on remand that that offends her omit- ted). policymaker, Hale was a the defendants protected as it defendants retaliated was insofar summary judgment cate the the First Amendment. claim Amendment to the First pertains that claim. remand for resolution majority states: Eleventh is entitled to Because OCFS the jury forwarding A could find that immunity on the FMLA Amendment [Langbein] report, unaltered Hale en- affirm, grounds, the claim, on different in expressed dorsed the views it and of that claim. dismissal thereby independent in engaged expres- support position,

sion. of this there that Hale forwarded the is evidence CABRANES, Judge, A. Circuit JOSÉ Langbein report by a transmittal letter dissenting part: in concurring part in (and Mann signature over his York Commission Cor- [New State] [of opinion as it majority I insofar join the ) precisely because he wanted to rection] Family under the Hale’s claim addresses Family [Office influence Children (“FMLA”), Act affirm- Leave and Medical policy. Services] on the District Court judgment ing support I lacked at 71. find no Supra the District Court grounds that, conclusion that Hale “en- record for the any in over the claim jurisdiction in con- gaged independent expression” I event, claim devoid of merit. is Hale Langbein report. nection however, dissent, from the respectfully admits that he did not' contribute to the District majority’s conclusion report. Nothing in the preparation of the summary judg- improperly granted Court report conveys indicates that it three-page retaliatory § demo- ment on Hale’s views. Nor does the transmittal Hale’s claim is based on the tion claim. That majority memorandum to which the refers merely for- person that a who proposition that Hale endorsed the offer indication job lost his report, required, a as warded prescriptions by Lang- set forth policy result, though the author even despite hav- punished bein—who was not consequences. report suffered no adverse report that Hale claims ing authored claim, Hale prevail on his To objectionable. All superiors found so his conduct is entitled must show that: (1) did,' then, comply with a direct was (2) protection; to First request from Commission written by, motivated or defendants’ conduct was report. copy for its review a forward by, exercise of substantially caused Hale’s Critically, majority opinion does not See, e.g., speech rights. free protected Hale’s that he believed mention admission Avon, 126 F.3d report Hankard v. Town to turn over the required he was (2d Cir.1997). request.1 I do not believe that response 421-22 to the Commission’s element, choice be- believed he had no but Hale has satisfied the first Since Hale and since neither report, claims to forward the “speech” cause the for which he for sum- following colloquy opposition to defendants’ motion Specifically, took mary approximately three months judgment, deposition September place at Hale’s on light deposed. of this he had been 1998: after apparent temporal proximity, is it Q: you ever write to the commission or Did engendered by the neces- sudden reversal speak anyone why them thére and ask position with the sities of his in connection they reports? wanted all these motion, pending that the relevant state- need to ask them See, Hale: No. There was no e.g., ment in the is not credible. affidavit they oversight why. I are an Buttry Signal Corp., v. General was— requests they agency. Whatever make 1995) (" Cir. is well settled in '[I]t provide. we have to party’s which affidavit con this circuit that added). Obviously, (emphasis testimony admission prior deposition this his own tradicts self-serving disregarded stands in stark contrast to the a motion for sum should be ”) quotes. judgment.' (quoting majority mary Su- Mack United affidavit from which States, (2d Cir.1987)). affidavit, pra at 71 n. 4. Hale submitted that maker, factors, report nor his brief transmittal memo- we consider several includ- concerning to his own views randum refers ing prescriptions, I Langbein’s policy do (1) the employee exempt whether is possible say see how it that Hale is (2) protection, from civil service has expression” “engaged independent competence expertise, some technical or forwarding report. Absent a demon- (4) others, controls is authorized to engaged protected stration that Hale speak policymakers, in the name of speech, the of the judgment District Court perceived policymaker by pub- as a the granting summary defendants’ motion for (6) lic, government programs, influences

judgment dismissing and 1983 claim (7) officials, has contact with elected and should be affirmed. (8) responsive partisan politics is Moreover, if it that even could be said political leaders. This list is not exhaus- expressed by forwarding Hale had himself tive, guide; but instead serves as a no report, defendants would be entitled group or always one factor of factors is summary judgment. year Less than a dispositive. that ago, explained “we are most pro- doubtful the Constitution ever Law, Dep’t Butler v. New York State public a in a right employee tects the (2d Cir.2000) 211 744 (quoting F.3d policymaking position to criticize em- h[is] (2d Pellegrini, Vezzetti v. 22 486 F.3d ployer’s policies or programs simply be- Cir.1994)). First, YFD3, as a Hale served employer’s [h]e h[is] cause does share pleasure at the and was Governor legislative or administrative vision.” Lew protection.3 not entitled to civil service Cowen, (2d v. is 165 F.3d Cir. Second, job requirements for a YFD3 1999) (quoting Washing Moran v. State of position demonstrate that demands (9th Cir.1998) (em ton, 147 F.3d expertise, including “good technical knowl- added)). phasis I believe this situation edge principles of general, adolescent falls under Lewis: the record is clear that psychology,” “good abnormal knowl- public employee, Hale was a policymaking edge techniques,” of social casework who in asserts he was demoted retali “good knowledge counseling tech- having for criticized his employer’s ation Third, niques.” oper- a YFD3 directs policies. my in view—and the views of facility ations of secure with 50-199 em- our in Lewis and the Ninth Court Circuit 50-99, ployees capacity and a bed long Moran —the reach of the First thereby “controlling] others.” Amendment does not extend so as to far service, protect jobs policy- of non-civil factors, Turning remaining to the four making public employees who insist they “attempt we have to define noted policies implemented attacking govern- the contours of a zone inside which superiors. their made,” mental decisions are and “encom- pass principle upon circuit which this has job

The in which Hale served—Youth placed primary importance: whether the Facility (“YFD3”) clearly Director 3 — employee question empowered is to act qualifies policymaking position as a under speak policymaker, on behalf of a es- standard we have established.2 de- termining employee policy- whether an is a pecially an elected official.” Gordon v. beyond recognized 2. We have noted that is cavil that 3. We have that "New York has ”[i]t appellate may judgment an court affirm the many considered criteria for same non- any ground appearing the district court on civil service status as does a court in deter UPS, Inc., Shumway the record.” v. mining position exempt whether a from (1997). concerning As facts protection.” Regan First Boo responsibilities as a YFD3 were in the record (2d Cir.1993). gertman, 984 F.2d Court, before the District I see no need to remand for consideration of whether policymaker. was a 984 F.2d at 579-81 speeches); Regan, Rockland, lie County of case, di- Cir.1997). facility Receiver of who attend- (Deputy Islip, instant Tax In the effective to “serve as required meetings are on the receiver’s rectors ed Town Board community spokespersons behalf). specific their Among facility and [OCFS].” attempts in a footnote majority (1) must: facility directors

responsibilities, of the clear implication obvious avoid the be dis- are to youth when determine Lewis, claiming point on this statement correspond meet and charged; characterized have not that “defendants them of the to advise youth parents of Instead, children; they meet and policymaker.... Hale as a of their progress representa- position merely with the members characterized Hale’s deal surrounding the community tives of held at position, policy-influencing aas ” accept them to to influence facility Supra pleasure Governor.... (4) meet facility programs; cooperate with (internal (emphasis original) 71 n. 4 community who of the members with omitted). First, there is marks quotation facility of actions by the damaged been this novel support in our caselaw for no ar- residents, damage and to learn and mere policymakers distinction between necessary; and restitution where range Hale The that “policy-infiuencers.” fact all monies for expenditure authorize preclude others does not reported to by facility. purchased items position. policymaking in a having served discharge concerning when to decisions Butler, that (stating at 744 F.3d Cf. of the Goshen representation and his youth [plain persuaded was “not the Court parents as dealings with Center Secure policy not a argument she was tiffs] community clearly members well as consult her su she had to maker because which the “zone inside him within placed policy on issues. periors or clients In made.” are decisions governmental indepen [plaintiff] whether issue is not (the deed, responsibilities the first these day, day from but dently policy made de discharge decide when power to duties general required rather what the alone, standing demon youth), tained were.”). I no reason see position her policymaker. a Hale acted as strates public em category of some new create on interaction emphasis The added already exist criteria when there ployee this conclu public. further reinforces public other policymakers from distinguish a perception of sion, indicating general a majority which employees' —criteria Butler policymaker. YFD3 as a Cf. reviving in the course of fails to mention Bureau Deputy a (finding that 743-45 claim. Hale’s retaliation Department of of New York State Chief Law, appeared state regularly who addition, undisputed that it is court, policymaking in a served federal from OCFS in a 1994 letter notified Pataki, position); Adler designated been ha[d] “position that his Cir.1999) (2d New (Deputy Counsel pur- for financial disclosure policymaking” of Mental Retardation Office York State cited in this Remarkably, letter poses. Disabilities, repre who Developmental at the conclusion brief defendants’ in administrative agency sented the majority upon relied very sentence Bavaro v. proceedings); interdepartmental asserted defendants never claim Cir.1997) Pataki, 46, 50-51 a rather policymaker, but that Hale was (associate New counsel and assistant Accordingly, pohcy-influencer.” “mere Health, who Department York State contention support not record does before the Board represented the state policy- consider Hale did not that OCFS Misconduct); Vezzet Professional Medical indeed, supports maker; clearly the record ti, (Orangetown Highway 22 F.3d at 486 contrary conclusion. pub- Superintendent, frequently who made join To summarize: I majority opin- respect

ion with to Hale’s FMLA claim.

However, I would affirm the District granting

Court’s decision defendants’ mo-

tion for summary judgment plaintiffs claim, plaintiff both because has engaged offered evidence that he because,

in protected expression and even had, entitled,

if he defendants were follow- Lewis,

ing our recent decision to remove

him position from his policymaking

criticizing superiors’ policies. Accord-

ingly, I major- dissent from so much of the

ity opinion as holds otherwise. America,

UNITED STATES

Appellee, ISMAIL, Defendant-Appellant.

Hesham

Docket 99-1711 No. Appeals,

United States Court

Second Circuit. Statsinger, Steven M. Legal Society, Aid Argued: May (Henriette Division, Federal Defender D. May Decided: Hoffman, brief) York, on the New New York, Appellant. for Stein, Gary Assistant United At- States torney for the Southern District of New White, (Mary York Jo United States At- torney for the Southern District of New York, Feinberg, Ira M. Assistant United counsel), York, States Attorney, of New York, Appellee. New FEINBERG, PARKER, Before: STRAUB, Judges. Circuit PER CURIAM. appeals

Hesham Ismail from the sen- imposed tence plea guilty after a by the United States District Court for the South- (Richard ern District of New York M.

Case Details

Case Name: Monroe Hale v. Louis Mann, Deputy Commissioner, Sued in His Individual Capacity and the State of New York Office of Children and Family Services

Court Name: Court of Appeals for the Second Circuit

Date Published: May 25, 2000

Citation: 219 F.3d 61

Docket Number: 1999

Court Abbreviation: 2d Cir.