Montero v. City of Yonkers, et al.
Docket No. 17-76-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued: September 08, 2017 Decided: May 16, 2018
Montero v. City of Yonkers, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2017
(Argued: September 08, 2017 Decided: May 16, 2018)
Docket No. 17-76-cv
_______________
RAYMOND MONTERO,
Plaintiff-Appellant,
– v. –
CITY OF YONKERS, NEW YORK, KEITH OLSON, in his official and individual
capacities, BRIAN MORAN, in his official and individual capacities, JOHN
MUELLER, in his official and individual capacities,
Defendants-Appellees,
POLICE ASSOCIATION OF THE CITY OF YONKERS, INC., AKA YONKERS
POLICE BENEVOLENT ASSOCIATION, EDMUND HARTNETT, in his official
and individual capacities,
Defendants.
_______________
Before: KATZMANN, Chief Judge, SACK and HALL, Circuit Judges.
Plaintiff-Appellant Raymond Montero appeals from a judgment entered in
favor of Defendants-Appellees the City of Yonkers, Keith Olson, Brian Moran,
and John Mueller by the United States District Court for the Southern District of
New York (Kenneth M. Karas, Judge). Montero, a Yonkers police officer and
former Yonkers police union official, alleges that the defendants violated his First
Amendment right to freedom of speech by retaliating against him for criticizing
management decisions by Yonkers police officials during the course of two union
meetings. The district court agreed with the defendants that because Montero‘s
union speech was not made in his capacity as a private citizen, his union remarks
were not protected by the First Amendment and he could therefore not state a
claim for retaliation against the defendants. We conclude that because Montero‘s
union remarks were not made pursuant to his official duties as a police officer, he
spoke as a private citizen for purposes of the First Amendment. We also
conclude, however, that defendants Moran and Mueller are entitled to qualified
immunity, and that Montero has not alleged a plausible claim for municipal
liability against the City of Yonkers. Accordingly, the district court‘s judgment is:
proceedings.
_______________
CHRISTOPHER D. WATKINS, Sussman & Associates, Goshen, New
York, for Plaintiff-Appellant.
ELIZA M. SCHEIBEL (Lalit K. Loomba, on the brief), Wilson, Elser,
Moskowitz, Edelman & Dicker LLP, White Plains, New York,
for Defendants-Appellees City of Yonkers, New York, Brian Moran,
and John Mueller.
ANDREW C. QUINN, The Quinn Law Firm, PLLC, White Plains,
New York, for Defendant-Appellee Keith Olson.
_______________
SACK, Circuit Judge:
Plaintiff-Appellant Raymond Montero, a Yonkers, New York police officer
and former union official in the Police Association of the City of Yonkers, Inc.,
also known as the Yonkers Police Benevolent Association (the “Yonkers PBA“),
appeals from an order of the United States District Court for the Southern District
of New York (Kenneth M. Karas, Judge) dismissing pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure his First Amendment employment retaliation
claim against Defendants-Appellees the City of Yonkers, Keith Olson, Brian
defendants violated his First Amendment right to freedom of speech by
retaliating against him for criticizing management decisions by Yonkers police
officials at two Yonkers PBA meetings. The district court held that because the
speech at issue was not made in Montero‘s capacity as a private citizen, his union
remarks were not protected by the First Amendment and he could therefore not
state a claim for retaliation against the City defendants.
We conclude that because Montero‘s union remarks were not ” ‘part-and-
parcel of his concerns’ about his ability to ‘properly execute’ ” his official job
duties, Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir.) (quoting Williams v.
Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007)),
(2010), he spoke as a private citizen for purposes of his First Amendment right to
free speech. We also conclude, however, that defendants Moran and Mueller are
entitled to qualified immunity, and that Montero has not alleged a plausible claim
for municipal liability against the City of Yonkers. Accordingly, we affirm the
district court‘s dismissal of the plaintiff‘s First Amendment retaliation claim
against defendants Moran, Mueller, and the City of Yonkers, vacate the district
defendant Keith Olson, and remand the case for further proceedings.
BACKGROUND
As required in our review of a dismissal under
reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng‘rs Pension
Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016),
(2017).
Montero‘s Union Remarks
Montero has been a police officer in the City of Yonkers Police Department
(the “YPD“) for more than twenty-seven years. In January 2010, the Yonkers PBA,
which serves as the official union for the YPD, held elections. Montero was
elected vice president. Defendant Olson, a fellow Yonkers police officer, was
elected president.
Montero testified that Olson had opposed Montero‘s candidacy, favoring
another police officer, Michael Farina, for vice president instead. Following the
2010, during a Yonkers PBA meeting, Montero criticized Olson‘s close
relationship with then Police Commissioner Edmund Hartnett. He said that
Hartnett‘s decision to discontinue several police units—those “dedicated to
investigating domestic violence and burglary” and the “community unit dedicated
to supporting the Police Athletic League“—would adversely affect the YPD, the
Yonkers PBA, and the surrounding community. Am. Compl. ¶¶ 15-17. Montero
alleges that shortly thereafter, Mueller, then a lieutenant and at the time of the
filing of the complaint, the acting Police Chief of the YPD, pulled him into his
office, and told Montero to stop criticizing the YPD and Police Commissioner
Hartnett, or Montero would be transferred to another division. Despite Mueller‘s
warning, at a Yonkers PBA meeting in February 2011,1 Montero called for a no-
confidence vote with respect to Hartnett.
Based on his comments at the June 2010 and February 2011 union meеtings
(the “union speech” or “union remarks“), Montero alleges that Olson, acting with
Olson‘s close associates Mueller and Detective Sergeant Moran, engaged in a
campaign of retaliation against him.2 The district court discussed Olson, Moran,
and Mueller‘s actions in some detail. Montero v. City of Yonkers, 224 F. Supp. 3d
257, 260-63 (S.D.N.Y. 2016). We rehearse those allegations only insofar as we
think them relevant to this appeal.
In March 2011, a month after Montero‘s call for a no-confidence vote with
respect to Police Commissioner Hartnett, Montero alleges, Olson, Mueller, and
Moran conducted an unauthorized investigation focused on Montero‘s use of
overtime slips. Because of this investigation, Montero asserts that the YPD
write-up of him. The next month, Montero alleges he was transferred from the
Special Investigations Unit, which Montero describes as “highly desirable,” to the
(less desirable) Detective Division. Am. Compl. ¶ 27. While in the Detective
Division, Montero was apparently assigned to desk duty, and became ineligible
for overtime pay. According to Montero, a month later, Olson admitted to him
that this transfer was directed by Moran and at Mueller‘s instruction, and was
effected because of Montero‘s criticisms of Olson‘s leadership of the Yonkers PBA
at the June 2010 union meeting and Hartnett‘s leadership of the YPD at the June
2010 and the February 2011 union meetings.
In September 2011, Montero alleges, Mueller conducted a second
unauthorized investigation of Montero, this time for insubordination. That same
month, Olson, after learning that Montero was planning to run against him for
the Yonkers PBA presidency, allegedly confronted Montero, calling him a
“fucking pussy” and threatening to “kick his ass” for refusing to debate him. Am.
Compl. ¶ 29. Montero asserts that his office was vandalized shortly thereafter,
with pictures of “The Cowardly Lion” posted throughout it. Although Montero
YPD‘s Internal Affairs Department, the department apparently took no action in
response to these reports.
In January 2012, Montero further alleges, Olson, Mueller, and Moran
conductеd a third unauthorized investigation of Montero, this time seeking to
prove that Montero had been outside of his home while on sick leave. Although
Montero contends that he had permission to leave his residence during this
period, the YPD nevertheless docked him two days’ salary.
In August 2012, Montero alleges, Olson told Montero‘s commanding
officer, Detective Sergeant Michael Kivel, among other things, that “[Montero]
better be fucking careful.” Am. Compl. ¶ 43. These remarks apparently followed
Montero‘s refusal to acknowledge Olson and Moran‘s presence while visiting a
fellow officer receiving medical treatment in a hospital. Although Montero states
that Kivel reported Olson‘s comments to Internal Affairs, the department
apparently, once again, undertook no investigation.
In October 2013, Montero asserts, Olson sent a text message to Montero
telling him that he wanted Montero to meet him “in another jurisdiction and
Am. Compl. ¶ 50. Also in September, Montero asserts, Olson “compelled”
Internal Affairs to investigate Montero for his alleged communications with a
reporter from the Yonkers Tribune, following an online article criticizing Olson‘s
leadership of the Yonkers PBA. Am. Compl. ¶ 52. When Montero refused to tell
Internal Affairs whether he was the source of the article, the YPD—allegedly at
Olson‘s behest—threatened Montero with termination.
In January 2014, at a Yonkers PBA meeting, Olson formally called for
Montero‘s expulsion from the union. When Montero attempted to leave the
meeting, he was allegedly blocked from exiting by one of Olson‘s allies.
According to Montero, at Olson‘s behest, police officers then seized videotapes of
the meeting. Montero once more reported Olson‘s actions to Internal Affairs, but
the department again allegedly refrained from confronting or disciplining Olson.
In February 2014, Montero asserts, Mueller urged Police Chief William
Cave to remove Montero as the YPD‘s representative at county-wide intelligеnce
meetings. After Cave agreed, Montero contends, he lost an additional twenty-
four hours of pay per month. Later that year, Montero alleges, Olson started a
expelled from the Yonkers PBA.
Finally, in July 2014, Montero alleges, his office was broken into and his
shield stolen. Shortly thereafter, Moran returned Montero‘s shield, and wrote a
report that he had received it from another person who had found it discarded on
the street. Montero thinks Moran stole his shield with the intention that Montero
be disciplined by his superiors for losing it, although no disciplinary measures
were taken against him.
The District Court Proceedings
In June 2015, Montero initiated an action under
United States District Court for the Southern District of New York alleging that
the City defendants had retaliated against him for his remarks at union meetings
in violation of the First Amendment. Following a pre-motion conference held on
September 9, 2015, Montero amended his complaint, providing additional alleged
facts in support of his claims. On March 4, 2016, the City defendants moved to
dismiss Montero‘s amended complaint on the grounds that: (1) Montero had
failed to state a claim for retaliation in violation of the First Amendment; (2)
(3) Montero did not sufficiently plead an adverse employment action against
Olson; and (4) Montero failed to state a claim for municipal liability against the
City of Yonkers.
On December 20, 2016, the district court granted the City defendants’
motions to dismiss with prejudice, holding that Montero‘s remarks at the June
2010 and February 2011 meetings were not constitutionally protected because
Montero had not made them while acting as a “private citizen,” as was required to
create a cause of action based on his constitutional right to free speech. Because
the district court found this issue to be dispositive, it did not consider any of the
City defendants’ remaining arguments for dismissal.
In its opinion, the district court relied principally on the Supreme Court‘s
decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). There, the Court made clear
that, to determine whether a public employee‘s speech is constitutionally
protected, courts must determine both that the employee spoke as a private
citizen and that the speech at issue addressed a matter of public concern. See
Garcetti, 547 U.S. at 417; see also Montero, 224 F. Supp. 3d at 264-65 (citing Garcetti).
citizen when he made the statements at issue. In reaching that conclusion, the
court relied principally on our decision in Weintraub v. Board of Education.
Montero, 224 F. Supp. 3d at 265-71.
In Weintraub, a public-school teacher filed a grievance through his union
complaining about his school‘s failure to discipline a student who had assaulted
him. 593 F.3d at 198-99. Relying on Garcetti, we concluded that because
Weintraub‘s grievance was pursuant to his official teaching duties, he did not
speak as a private citizen. Id. at 203 (concluding that “Weintraub‘s grievance was
pursuant to his official duties because it was part-and-parcel of his concerns . . . as
a public school teacher—namely, to maintain classroom discipline, which is an
indispensable prerequisite to effective teaching and classroom leаrning“) (citation
and internal quotation marks omitted). We also thought it relevant that union
grievances had no civilian analogue, or a “form or channel of discourse available
to non-employee citizens.” Id. at 204.
Here, the district court decided that, at the motion to dismiss stage, it could
not resolve whether Montero‘s union remarks were made in accordance with his
district court further determined that, although the union meetings contained no
civilian analogue, the absence of a civilian analogue was not dispositive, and
turned to the “content and circumstances” of Montero‘s union remarks. Id. at 269-
70. Because Montero‘s union speech “lacked any civilian analogue, and because
Plaintiff‘s speech, made behind closed doors outside the presence of both the
public and Commissioner Hartnett, was at least tangentially related to his official
duties,” id. at 271, the district court ultimately concluded that Montero was not
protected by the First Amendment from retaliation for his remarks, id. at 273.
Accordingly, the district court dismissed Montero‘s complaint. Id. at 275.
We conclude that the district court correctly held that the existence of a
civilian analogue is not dispositive of whether a public employee spoke as a
private citizen, but it is merely a factor the court could consider as part of the
inquiry into whether the public employee‘s speech was made pursuant to his
ordinary employment-related responsibilities. We nevertheless find that the
district court erred in ruling that Montero‘s speech was not protected because it
matter of law.
It is clear from the pleadings that Montero‘s union remarks did not fall
within his responsibilities as a police officer, and he therefore made these remarks
as a private citizen. Because at least some of Montero‘s remarks addressed a
matter of public concern, moreover, we vacate and remand the district court‘s
judgment dismissing Montero‘s First Amendment retaliation claim as to
defendant Olson. We affirm the district court‘s dismissal of the claims against
defendants Moran and Mueller for a different reason: their alleged acts were
protected by the doctrine of qualified immunity. Finally, we affirm the dismissal
of Montero‘s claim for municipal liability against the City of Yonkers for failure to
state a claim upon which relief could be granted.
DISCUSSION
I. Standard of Review
“We review de novo the grant of a
to state a claim, accepting all factual allegations as true and drawing all
Fund, 843 F.3d at 566. The complaint‘s allegations, however must be “plausible on
[their] face,” a standard that “asks for more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II. First Amendment Retaliation Claim
Where, as here, a plaintiff claims that he or she was retaliated against in
violation of the First Amendment, he or she must plausibly allege that “(1) his [or
her] speech or conduct was protected by the First Amendment; (2) the defendant
took an adverse action against him [or her]; and (3) there was a causal connection
between this adverse action and the protected speech.” Cox v. Warwick Valley
Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011).
For many years, “the unchallenged dogma was that a public employee had
no right to object to conditions placed upon the terms of employment,” including
those terms which restricted his or her right to speak freely in the workplace.
Garcetti, 547 U.S. at 417 (internal quotation marks omitted). In Pickering v. Board of
Education, 391 U.S. 563 (1968), however, the Supreme Court made clear that public
employees do not automatically surrender all their rights of free expression at the
in the workplace when he or she is speaking “as a citizen . . . upon matters of
public concern.” Id. at 568.
The Supreme Court, relying on Pickering, 391 U.S. at 568, and Connick v.
Myers, 461 U.S. 138, 147 (1983), further explained in Garcetti v. Ceballos that the
First Amendment inquiry must proceed in two parts. “The first [component]
requires determining whether the employee spoke as a citizen on a matter of
public concern. If the answer is no, the employee has no First Amendment cause
of action based on his or her employer‘s reaction to the speech.” Garcetti, 547 U.S.
at 418 (citations оmitted). If the first component is present, an employer must
then show that it “had an adequate justification for treating the employee
differently [based on his or her speech] from any other member of the general
public.” Id. (citing Pickering, 391 U.S. at 568).
A. Citizen Speech
In Garcetti, the plaintiff, Richard Ceballos, a prosecutor in the Los Angeles
District Attorney Gil Garcetti‘s office, sent a memorandum to his supervisor
asserting that a search warrant affidavit in a case being prosecuted by the office
dismiss the case in which the affidavit was being used, and Ceballos testified for
the defense about these misrepresentations. Id. at 414-15. Ceballos subsequently
alleged that because of the memorandum, he had been subject to various
retaliatory employment actions by Garcetti‘s office. Id.
The Supreme Court stated that “when public employees make statements
pursuant to their official duties,” which the Court determined that Ceballos had,
“the employees are not speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications from employer
discipline.” Id. at 421. Although the Court refrained from proffering a detailed
definition of what constitutes оne‘s “official duties,” it noted that “[w]hen a public
employee speaks pursuant to [his or her] employment responsibilities . . . there is
no relevant analogue to speech by citizens who are not government employees.”
In Lane v. Franks, 134 S.Ct. 2369 (2014), the Supreme Court further
considered what qualifies as “citizen speech.” There, the director of a state
program for underprivileged youth asserted that he was demoted by the state
department‘s payroll. Id. at 2375-78. The Eleventh Circuit had decided that the
plaintiff had not engaged in citizen speech, inasmuch as his testimony concerned
information learned solely during the course of his employment. Id. at 2378-79.
The Supreme Court reversed. It noted that ”Garcetti said nothing about
speech that simply relates to public employment or [that] concerns information
learned in the course of public employment,” and that “the mere fact that a
citizen‘s speech concerns information acquired by virtue of his public
employment does not transform that speech intо employee—rather than citizen—
speech.” Id. at 2379.
This Court has sought to further refine the characteristics of public
employee speech that is also protected citizen speech for purposes of the First
Amendment. In Weintraub, as described above, a public-school teacher filed a
grievance through his union chastising his superiors’ failure to discipline a
student who had assaulted him. 593 F.3d at 198-99. We concluded that
Weintraub‘s grievance did not constitute citizen speech because the
communication was “part-and-parcel” of his ability to execute his “official duties”
indispensable prerequisite to effective teaching and classroom learning.” Id. at
203 (citation and internal quotation marks omitted).
We also thought it significant that Weintraub‘s union grievance lacked a
citizen analogue, i.e., a “relevant analogue to speech by citizens who are not
government employees.” Id. (quoting Garcetti, 547 U.S. at 424). In Garcetti, the
Supreme Court provided two examples of speech containing a citizen analogue:
(1) “a schoolteacher‘s ‘letter to a local newspaper,‘” which “bore similarities to
letters submitted by numerous citizens every day,” and (2) “discussi[ons] [of]
politics with a co-worker.” Id. at 203-04 (quoting Garcetti, 547 U.S. at 422-23). The
plaintiff in Weintraub, by contrast, had “made an internal communication
pursuant to an existing dispute-resolution рolicy established by his employer.”
Id. at 204. Such a grievance was “not a form or channel of discourse available to
non-employee citizens.” Id. Although we cautioned that this “lack of a citizen
analogue” was not dispositive of the question whether the plaintiff spoke in the
In Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011),
In Jackler, the plaintiff, a probationary police officer, alleged that he had been terminated by the police department by which he was employed for refusing to retract a report that he had made to an independent state agency in support of a civilian complaint accusing a fellow officer of using excessive force. 658 F.3d at 230-32. The district court dismissed the suit under
Additionally, in line with Weintraub, 593 F.3d at 204, we stated in Jackler that “an indicium that speech by a public employee has a civilian analogue is that the employee‘s speech was to an independent state agency responsible for entertaining complaints by any citizen in a democratic society regardless of his status as a public employee.” 658 F.3d at 241 (italicization provided and internal quotation marks omitted). We noted that our holding was bolstered by the fact that Jackler had made his report to an independent state agency, id., a “channel[] available to citizens generally,” id. at 238 (quoting Weintraub, 593 F.3d at 204).
In Ross, a payroll-clerk typist alleged that she was retaliated against by her employers for reporting financial malfeasance to a superior. 693 F.3d at 302. We first observed that “the inquiry into whether a public employee is speaking
We concluded that because “reporting pay irregularities to a supervisor” was one of the plaintiff‘s job duties and “made in furtherance of those duties,” the speech at issue was not made in her capacity as a citizen. Id. at 308. She was therefore not protected by the
Most recently, in Matthews, 779 F.3d at 169, we considered whether a police officer had acted as a private citizen for purposes of assessing his
There may be some confusion as to whether both questions (1) and (2) in Matthews—i.e., whether (1) the speech was outside the speaker‘s official responsibilities and (2) there was a civilian analogue—must be answered in the affirmative for the speech to be protected citizen speech under Garcetti. See., e.g., Brown v. Office of State Comptroller, 211 F. Supp. 3d 455, 467 (D. Conn. 2016), appeal dismissed in part, 885 F.3d 111 (2d Cir. 2018) (”Matthews I makes it clear that the existence of a civilian analogue is typically a prerequisite to a holding that the employee was speaking as a citizen.“). We think that the Supreme Court has
In the case at bar, the district court therеfore was correct in deciding that the lack of a civilian analogue was not critical to a decision as to whether Montero spoke as a private citizen. Montero, 224 F. Supp. 3d at 270-71. But the district court treated this factor as analytically distinct from the core inquiry: whether Montero‘s union remarks were made pursuant to his official employment responsibilities. See id. at 266-68. Instead, the district court concluded that,
We conclude that Montero sufficiently pled that his union remarks cannot be considered “part-and-parcel of his concerns about his ability to properly execute his duties.” Weintraub, 593 F.3d at 203 (citation and internal quotation marks omitted). The “critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee‘s duties, not whether it merely concerns those duties.” Lane, 134 S.Ct. at 2379. Montero made his remarks as union vice president, a role in which he was not required to serve. See Matthews, 779 F.3d at 174 (concluding that the plaintiff‘s speech was not part of his official duties where it “was neither part of his job description nor part of the
Because, based on his pleading, Montero‘s remarks did not fall within his employment responsibilities, the district court erred in concluding on a motion to dismiss that Montero spoke as an employee.
Nevertheless, Montero would have us go further and decide categorically, as some circuits have, that when a person speaks in his or her capacity as a union member, he or she speaks as a private citizen. See Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir. 2015) (“It is axiomatic that an employee‘s job responsibilities do not include acting in the capacity of a union member, leader, or official.“); Ellins v. City of Sierra Madre, 710 F.3d 1049, 1060 (9th Cir. 2013) (“Given the inherent institutional conflict of interest between an employer and its employees’ union, we conclude that a police officer does not act in furtherance of his public duties when speaking as a representative of the police union.“); Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1123 (7th Cir. 2009) (noting that when one speaks “in his capacity as a union official, his comments [are] made as a citizen rather than as a public employee“).
In support of this position, Montero cites Clue v. Johnson, 179 F.3d 57 (2d Cir. 1999). There, various union officers alleged that they had suffered employment retaliation after seeking to recall union leaders whom they viewed as having colluded with management. Id. at 59-60. We stated, albeit in dicta, that “[t]here is no doubt that retaliation against public employees solely for their union activities violates the
But we think Clue is unhelpful here. First, Clue‘s broad dicta that union activities criticizing management constitute matters of public concern has been walked back by our subsequent сase law. See Lynch v. Ackley, 811 F.3d 569, 582 (2d Cir. 2016) (“Though the court [in Clue] said in dicta that ‘retaliation solely for union activity clearly raises a public concern’ . . . it obviously did not mean that all activities undertaken through a union necessarily become matters of public
While we therefore decline to decide categorically that when a person speaks in his capacity as a union member, he speaks as a private citizen, we conclude that, under the facts of this case as set out in the amended complaint, when Montero spoke in his capacity as a union member, he spoke as a private citizen. This was because, taking the amended complaint‘s allegations as true, Montero spoke in his role as a union officer, and his union speech was not composed of statements made as a “means to fulfill” or “undertaken in the course of performing” his responsibilities as a police officer. Weintraub, 593 F.3d at 203 (quotation marks omitted). Consequently, he engaged in citizen speech for purposes of the
If Montero spoke as a citizen, it does not necessarily follow that his speech was constitutionally protected. The successful plaintiff must also demonstrate that the speech at issue was on a matter of public concern. Garcetti, 547 U.S. at 418.
Whether speech is on a matter of public concern is a question of law, and “is to be answered by the court after examining the ‘content, form, and context of a given statement, as revealed by the whole record.‘” Jackler, 658 F.3d at 235 (quoting Connick, 461 U.S. at 147-48). “To constitute speech on a matter of public concern, an employee‘s expression must ‘be fairly considered as relating to any matter of political, social, or other concern to the community.‘” Id. at 236 (quoting Connick, 461 U.S. at 146); see also City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (stating that a topic is a matter of public concern if it is of “general interest” or of “legitimate news interest“). On the other hand, speech that principally focuses on “an issue that is ‘personal in nature and generally related to [the speaker‘s] own situation,‘” Jackler, 658 F.3d at 236 (quoting Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir.), cert. denied, 502 U.S. 1013 (1991)) (brackets in original),
Because the district court found that Montero did not make his union remarks as a private citizen, it did not reach the issue of whether all such remarks implicated matters of public concern. In a footnote, the district court asserted that Montero‘s criticism of Olson‘s leadership, which stemmed from their union rivalry, did not involve a matter of public concern. Montero, 224 F. Supp. 3d at 274 n.3. Nevertheless, the district court stated that whether Montero‘s “opposition to cuts that were allegedly ‘bad for the community,’ implicat[ed] a public concern present[ed] a closer question,” id. (quoting Am. Compl. ¶¶ 16-17), a question it declined to answer.
The district court did not err when it found that Montero‘s criticism of Olson‘s union leadership reflected a personal rivalry between two union leaders, and concluded that it thus “plainly do[es] not implicate a public concern.” Id.; see Am. Compl. ¶ 15 (stating that Montero criticized Olson‘s leadership of the Yonkers PBA, and in particular his cozy relationship with Hartnett, Olson‘s
In response, the City defendants contend that these remarks, made at two closed-door meetings, reflect no more than Montero‘s own ambition: to be elected the Yonkers PBA president. And to be sure, “[a] public employee may not
At this stage in the proceedings, we cannot say that Montero‘s union remarks about how reductions in police manpower might reduce public safety and his call for a vote of no-confidence in Commissioner Hartnett were solely “calculated to redress [his] personal grievances” against Olson and his allies. Lewis, 165 F.3d at 163. Nor, despite the City defendants’ contentions otherwise,
C. Liability of Defendant Olson
To succeed on a
On appeal, defendant Olson contends that an adverse employment action must be caused by “a supervisor, employer, a member of management, or a hiring body.” Def. Olson‘s Br. at 25. Because the pleadings demonstrate that he occupied none of those positions vis-à-vis Montero, Olson argues that he cannot be found liable for taking any adverse employment actions against the plaintiff.
In response, Montero contends that Olson, a “union president who has an exceedingly close relationship with management” and used this relationship to “exact revenge against [the] plaintiff on the job,” can be held responsible for violating Montero‘s
In focusing on whether Olson can be found liable for an adverse employment action, however, both parties have put the cart before the horse. To make a successful section 1983 claim, a plaintiff must show that the defendant not only violated a constitutional right, but acted “under the color of state law.” Cox, 654 F.3d at 272. A defendant can only be said to do so if his or her actions were made as a state actor, or where the person acts “in his official capacity or while exercising his responsibilities pursuant to state law.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 230 (2d Cir. 2004) (quoting West v. Atkins, 487 U.S. 42, 49-50 (1988)).
As noted above, the parties dispute whether Olson, as a concededly non-supervisory employee, can be said to have taken an adverse employment action against Montero in the context of a
D. Liability of Defendants Moran and Mueller
Defendants Moran and Mueller argue that even if Montero‘s speech was constitutionally protected and they took adverse employment actions against him for this speech, they are, even on the present state of the proceedings, entitled to qualified immunity. We agree.
Qualified immunity, an affirmative defense, shields officials from personal liability for civil damages so long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (explaining that a right is clearly established
It is true that at the time Moran and Mueller allegedly retaliated against Montero, we had stated in Weintraub that the “lack of a citizen analogue [was] ‘not dispositive’ in [that] case.” 593 F.3d at 204 (quoting Garcetti, 547 U.S. at 420). As detailed above, the role of a citizen analogue in determining whether one speaks
On appeal, Montero contends, once again, that Clue “clearly establishe[s]” that a person‘s union activity criticizing management is categorically protected by the
Because the specific question of whether the plaintiff‘s alleged union remarks were protected by the
E. Municipal Liability
In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court established that municipalities may be construed as “persons” in the context of violations of
Although “official policy” often refers to formal rules or customs that intentionally establish “fixed plans of action” over a period of time, when a municipality “chooses a course of action tailored to a particular situation,” this may also “represent[] an act of official government ‘policy’ as that term is commonly understood.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986)). Nor must such policies be authorized or ratified by multiple decisionmakers of the municipality in question for liability to accrue. “[E]ven a single action by a decisionmaker who ‘possesses final authority to establish municipal policy with respect to the action ordered‘” may deprive the plaintiff of his or her constitutional rights. Id. at 126 (quoting Pembaur, 475 U.S. at 481). When a non-decisionmaker committed the constitutional violation, however, the plaintiff must show that the decisionmaker ordered or ratified such a subordinate‘s conduct or “was aware of a subordinate‘s unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions.” Id.
In his amended complaint, Montero asserts that the YPD, “acting through its final policymaking officials,” aided Olson and his allies in retaliating against him, and that the department “adopted an unwritten policy” in doing so by condoning and ratifying this action. Am. Compl. ¶¶ 84-86. But “[t]he mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.” Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993), overruled on other
Montero nevertheless contends that a reasonable juror could conclude that he was retaliated against at the specific behest of then Police Commissioner Hartnett, who, as a final policymaker, allegedly had the requisite authority to carry out Montero‘s continual investigations, transfers, and pay cuts. Montero fails to allege, however, that Hartnett had or should have had any knowledge of these retaliatory actions.7
He asserts only that Mueller told him that Hartnett “did not like what Plaintiff had been saying about Hartnett and others at PBA meetings.” Am. Compl. ¶ 19; see Jones v. Town of E. Haven, 691 F.3d 72, 81 (2d Cir. 2012) (“To establish deliberate indifference a plaintiff must show that a policymaking official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or sanction
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s dismissal of the plaintiff‘s
Notes
comments, the parties’ briefing indicates that he did so at this union meeting.
Montero v. City of Yonkers, 224 F. Supp. 3d 257, 260 (S.D.N.Y. 2016).
criticized Olson‘s leadership from January 2010 to January 2012, he provides no
specific examples of such assertedly protected speech other than the June 2010
and February 2011 union speeches discussed above. Nor did Montero raise any
other examples during oral argument before the district court, in his briefs below,
in his appellate briefs, or in oral argument before this Court. Consequently, like
the district court, we focus our attention on whether these two speech incidents
were constitutionally protected.