Officer Craig Matthews brought suit alleging that the City of New York retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct of the New York City Police Department (“NYPD”). The United States District Court for the Southern District of New York (Paul A. Engelmayer, Judge) granted the defendants’ motion for summary judgment, holding that Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. We conclude that because Matthews’s comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen. Accordingly, we VACATE the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
BACKGROUND
I. Matthews’s Speech about the Quota System
Since 1999, Craig Matthews, an NYPD police officer, has been assigned to the 42nd Precinct (“the Precinct”) in the Bronx. He alleges that starting in 2008, unnamed supervisors in the Precinct implemented a quota system mаndating the number of arrests, summons, and stop- and-frisks that police officers must conduct. Matthews also alleges that Lieutenant Mark Sedran “refined the quota system” by creating a point system that awarded points to police officers for issuing what Sedran considered “ ‘good’ summonses” and subtracted points for less desirable summonses. Compl. ¶ 18, Joint App’x 25. Matthews alleges that officers were under pressure to comply with the quota system.
In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s сore mission, reported its existence to then-Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.
In January 2011, Matthews met with then-Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the
II. Matthews’s Complaint and the Defendants’ Motion to Dismiss
On February 28, 2012, Matthews filed a complaint under 42 U.S.C. § 1983 alleging that the NYPD retaliated against him in violation of the First Amendment to the U.S. Constitution and Article I, § 8 of the New York State Constitution because he sрoke to the Precinct’s leadership about the arrest quota policy. Although not relevant to this appeal, which is limited to the narrow question of whether Matthews spoke as a citizen or as a public employee, the alleged acts of retaliation consist of punitive assignments, denial of overtime and leave, separation from his career-long partner, humiliating treatment by supervisors, and negative performance evaluations.
On March 16, 2012, the defendants movеd to dismiss, arguing that Matthews’s speech was made pursuant to his official employment duties and was thus unprotected. The district court (Barbara S. Jones, Judge) granted the defendants’ motion to dismiss. See Matthews v. City of New York, No. 12 Civ. 1354,
On remand, after the case was reassigned to District Judge Paul A. Engel-mayer, the following evidence relevant to this appeal was developed in discovery.
III. Matthews’s Employment Duties
Matthews stated in an affidavit that the vast majority of his time as a police officer is spent:
(1) going on radio runs, which are responses to 911 calls in the precinct, in addition to ’311’ requеsts, and requests that come through the station house telephone switchboard, (2) patrolling the streets and vertical patrolling of local housing, (3) filling out complaint reports and additional forms relating to criminal activity, lost property, and missing persons, including interviewing witnesses, (4) responding to traffic accidents, (5) transporting prisoners to and from the precinct house, courts, and hospitals, and (6) doing community visits with local businesses and organizations.
Joint App’x 91-92. Matthews’s duties are formally defined by the NYPD Pаtrol Guide, which was created to serve as a “guide for ALL members of the service,” although it does not “contain distinct instructions for every situation that may be encountered in the field.” Foreword, Patrol Guide, Joint App’x 410. Section 207-21 of the Patrol Guide, titled “Allegations of Corruption and Other Misconduct Against Members of the Service,” states that:
All members of the service must be incorruptible. An honest member of the service will not tolerate members of the service who engage in corruption or othеr misconduct. All members of the service have an absolute duty to report any corruption or other misconduct, or allegation of corruption or other misconduct, of which they become aware.
Commissioner John Beirne, Deputy Commissioner for Labor Relations for the NYPD, testified at deposition that a quota system alone is not misconduct but that a quota system that results in an unjustified stop, an unjustified arrest, an unjustified summons, or an adverse employment action is miscоnduct that must be reported. Matthews testified that the Patrol Guide does not obligate him to report the existence of a quota system and that he would only have a duty to report misconduct that violated the penal law. It is undisputed that Matthews did not regularly meet with or report to Captains Bugge or Bloch. Commissioner Beirne, Captain Bloch, and Captain Bugge testified that an officer has no duty to monitor the conduct of his or her supervisors.
IV. Avenues for Civilian Complaints to the NYPD
Patrol Guide Section 202-09 states that one duty of a сommanding officer in the NYPD is to “[mjaintain as much personal contact as possible with business, civic [organizations] ... and other groups or media with community influence and interests to keep abreast of community tensions and trends.” Joint App’x 209. In this spirit, the Precinct held monthly Community Council meetings in which the public was invited to raise concerns about policing practices. Captain Bloch testified that he routinely attended these meetings, missing fewer than four or five of the previous thirty.
In addition to the Community Council meetings, Captain Bugge testified that, one to three times per month, he met with members of the public, such as local politicians, church leaders, or members of civic associations, to discuss policing issues in the Precinct. The minutes of one Community Council meeting reflect that Captain Bugge announced that “he welcomes the community to call him and discuss problems.” Joint App’x 246. Captain Bloch testified that in his experience, however, meetings with community members outside of the Community Council meetings happened “rarely.” Joint App’x 131.
V. The Defendants’ Motion for Summary Judgment
On May 20, 2013, the defendants moved for summary judgment. On July 29, 2013, the district court granted the defendants’ motion. The district court held that Matthews’s speech was made as an employee of the NYPD, not as a citizen, and thus was not protected by the First Amendment.
Matthews now appeals.
DISCUSSION
I. Standard of Review
We review a district court’s grant of summary judgment de novo. Natural Res. Def. Council, Inc. v. U.S. Food and Drug Admin.,
II. Legal Framework
A plaintiff asserting a First Amendment retaliation claim must establish that: “(1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the рrotected speech.” Cox v. Warwick Valley Cent. School Dist.,
A court conducts a two-step inquiry to determine whether a public employee’s speech is protected: “The first requires determining whether the employee spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos,
The district court determined that Matthews spoke on a matter of public concern and the defendants-appellees do not challenge that determination here. This appeal concerns only whether Matthews spoke as a citizen or as a public employee. The district court held that Matthews spoke as a public emplоyee. We disagree with that conclusion, however, and hold that Matthews spoke as a citizen. Accordingly, we remand to the district court to determine whether an adequate justification existed for treating Matthews differently from any other member of the public, and if necessary, to analyze in the first instance whether a reasonable jury could find that Matthews suffered retaliation as the result of exercising his First Amendment rights.
III. The Citizen/Employee Distinction
The Supreme Court has recognized a tension in public employment free sрeech eases between an employee’s First Amendment rights and the “common sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick v. Myers,
Guided by the Supreme Court’s decision in Garcetti, we ask two questions to determine whether a public employee speaks as a citizen: (A) did the speech fall outside of the employee’s “official responsibilities,” and (B) does a civilian analogue exist? See Weintraub v. Bd. of Educ. of City Sch. Distr. of City of N.Y.,
A. Official Duties
“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Garcetti,
In Garcetti, the Supreme Court adopted a functional approach toward evaluating an employee’s job duties. There, a deputy district attorney alleged that he had been retaliated against for writing a memorandum recommending that a case be dismissed. The Supreme Court held that the prosecutor’s memorandum to his superior wаs unprotected because it was “part of what [the speaker] ... was employed to do.” Garcetti
We have applied Garcetti’s functional approach in previous cases. In Wein-traub, we held that a school teacher’s formal grievance regarding the administration’s refusal to discipline a student was unprotected speech because a teacher’s need to discipline his own students is essential to his ability to effectively run a classroom as part of his day-to-day responsibilities.
Similarly, in Ross v. Breslin, we held that a payroll clerk’s speech to her superiors аbout pay discrepancies was unprotected because it was part of her job responsibilities, which included “making sure pay rates were correct.”
In this case, Matthews reported the existence of the quota system on three occasions to Captain Bugge and on one occa
Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti, nor was it “part- and-parcel” оf his regular job, unlike the case of the teacher in Weintraub and the payroll clerk in Ross. Matthews’s speech addressed a precinct-wide policy. Such policy-oriented speech was neither part of his job description nor part of the practical reality of his everyday work. Section 202-21 of the NYPD Patrol Guide, which outlines the “Duties and Responsibilities” of a Police Officer, reinforces this conclusion. It lists 20 specific duties, but none includes a duty to provide feedback on precinct policy or any оther policy-related duty. See Joint App’x 113. Matthews similarly stated that his job as a police officer consisted of radio runs, patrols, complaint reports, and other tasks involving enforcement of the law; it did not include reporting misconduct of supervisors nor did it encompass commenting on precinct-wide policy. Matthews had no role in setting policy; he was neither expected to speak on policy nor consulted on formulating policy.' Commissioner Beirne, Captain Bloch, and Captain Bugge all testified that a police officer has no duty to monitor the conduct of his • supervisors. Captain Bloch and Captain Bugge also testified that Matthews neither met regularly with the Captains nor submitted.regular reports to them. Apart from the occasions on which Matthews spoke to them about the quota system, he did not communicate with the Precinct’s commanding officers beyond occasional hallway small talk. In sum, Matthews’s actual, functional job responsibilities did not inсlude reporting his opinions on precinct-wide quota systems to the Precinct commanders.
We hold that when a public employee whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employеe.
The City points to Section 207-21 of the NYPD Patrol Guide, which, as noted earlier, states in pertinent part “[a]ll members of the service have an absolute duty to report any corruption or other misconduct, or allegation of corruption or other misconduct, of which they become aware.” Joint App’x 36. It defines “corruption/other misconduct” as “[cjriminal activity or other misconduct of any kind including the use of excessive force or perjury that is committed by a member of the sеrvice whether on or off duty.” Id. The district court relied on this provision in holding that Matthews’s reports were part of his official duties. We believe this reliance was misplaced.
Matthews testified that he understood Section 207-21 to require only reports of misconduct rising to the level of a violation of penal law. Commissioner Beirne testified that the section requires reports of almost every violation of the Patrol Guide. Under either interpretation, however, the provision does not render Matthews’s speech unprotected.
Matthews, in speaking out about the quota system, was not reporting suspected
Even if Matthews’s speech were deemed to fall within Section 207-21, this provision would not be determinative of whether that speech was protectеd by the First Amendment. If the Patrol Guide’s general duty to report misconduct were permitted to control whether the speech of any employee—without regard to whether the investigation and reporting of misconduct is an integral part of the employee’s day-to-day job (i.e. what he or she is “employed to do,” Garcetti,
B. Civilian Analogue
The existence of a comparable civilian analogue for Matthews’s speech also supports our conclusion that he spoke as a citizen. Speech has а “relevant civilian analogue” if it is made through “channels available to citizens generally.” Jackler,
In Jackler, we held that a police officer’s refusal to retract a truthful report to the police had a civilian analogue because a non-employee citizen may also refuse to
Matthews chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct commanders. Captain Bloch stated that he attended nearly every monthly Community Council meeting. And Captain Bugge testified that one to three times pеr month he met with members of the community to discuss issues in the Precinct. Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues.
The district court found an absence of a civilian analogue because Matthews had better access to his commanding officers than would ordinary citizens. The district court noted that Matthews could speak to the officers “more readily, more frequently, and more privately than could an average citizen.” Matthews v. City of New York, 957 F.Supp.2d. 442, 465 (S.D.N.Y. 2013). We do not consider the relative degree of access to be material; rather what matters is whether the same or a similar channel exists for the ordinary citizen. If courts were to confine their focus to the degree of access, then internal public employee speech on matters of public concern not made as part of regular job duties would be unlikely to receive First Amendment proteсtion because, presumably, employees always have better access to senior supervisors within their place of employment.
Here, Matthews pursued the same avenue to complain about a precinct-wide policy as would a concerned' civilian. The channel Matthews chose to address his concerns about the quota system thus reinforces our conclusion that Matthews spoke as a citizen, not as a public employee.
CONCLUSION
For the reasons stated above, we VACATE the district court’s grant of defendants’ motions for summary judgment and REMAND for further proceedings consistent with this opinion.