MEMORANDUM AND ORDER
In this civil action alleging, inter alia, unconstitutional retaliation against the plaintiff, a former employee of the Board of Education of the City of New York, the City 1 has filed a motion seeking reconsideration of this Court’s prior order denying summary judgment in favor of the defendants on the plaintiffs claim that the City violated his constitutional rights under col- or of state law, in violation of 42 U.S.C. § 1983 (“ § 1983”). For the reasons stated below, the City’s motion is granted in part and denied in part.
BACKGROUND
On April 28, 2006, this Court issued a Memorandum and Order granting in part and denying in part the City’s motion for summary judgment.
See Weintraub v. Bd. of Ed. of the City of New York,
On July 28, 2000, Mr. Weintraub commenced this action, claiming,
inter alia,
that the retaliatory steps taken against him in retribution for his complaints about Mr. Goodman’s handling of the disciplinary matter in November 1998 constitute an illegal infringement upon his First and Fourteenth Amendment rights, in violation of § 1983. In the portion of the prior order relevant to the present motion, the Court held that the plaintiff has stated a claim under § 1983, and that genuine issues of material fact precluded the entry of summary judgment for the City. Central to the Court’s holding was its conclusion that Weintraub’s speech was protected by the First Amendment under the standards set forth by the Supreme Court in
Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, Will Cty.,
DISCUSSION
1. The Garcetti Decision
In support of its renewed motion to dismiss Weintraub’s § 1983 claim, the City argues that the Supreme Court’s decision in
Garcetti,
issued approximately one month after
Weintraub I,
undermines this Court’s determination that Weintraub has stated a valid claim of First Amendment retaliation under § 1983. In
Garcetti
the respondent, Richard Ceballos, employed at
The Supreme Court reversed the Ninth Circuit’s opinion, holding that because Ce-ballos “did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case,” but rather “acted as a government employee,” the disposition memo was not protected by the First Amendment, and therefore could not form the basis of a First Amendment retaliation claim.
Garcetti,
2. Garcetti Requires Reconsideration of Weintraub I
The
Garcetti
decision “profoundly alters how courts review First Amendment retaliation claims,” and compels the Court to reconsider its earlier ruling that the speech underlying Weintraub’s First Amendment retaliation claim is constitutionally protected.
Casey v. West Las Vegas Indep. Sch. Dist.,
The City argues that Weintraub’s claim is barred by Garcetti because all of the statements underlying that claim were made in his capacity as an employee, rather than as a citizen. In support of this view, the City observes that “[ojbviously, it is within the job duties of any teacher to maintain discipline within his classroom, and Weintraub’s referral of the student to Goodman ... falls within these duties.” Def. Br. at 4. The City also cites a portion of the “Agreement between the Board of Education of the City School District of the City of New York and United Federation of Teachers,” which sets out the grievance and appeal procedure for disputes between teachers and school administration regarding student disciplinary matters. Id. Ex. C. In response, Weintraub points out that the City’s argument incorrectly identifies the statements for which Weintraub alleges he suffered unconstitutional retaliation — -Weintraub does not argue that his act of referring the student to Goodman is what prompted the escalating series of allegedly retaliatory actions; rather, he argues that his subsequent acts of complaining to Goodman about Goodman’s handling of the situation, speaking to other teachers, and filing an official grievance prompted the unlawful retaliation. Weintraub’s argument that the city misrepresents the actual basis of his First Amendment retaliation claim is correct, but does not alter the outcome of the City’s motion in Weintraub’s favor.
As noted above,
Garcetti
held that a public employee’s speech is not protected by the First Amendment when speaking as an employee rather than as a citizen, and found the dispositive distinction between the two roles to be whether the speech was made pursuant to the employee’s official duties or was not required by those duties.
7
This interpretation is consistent with that of other federal courts applying
Garcetti
in similar circumstances, which have interpreted its language to mean that, if a public employee is compelled by his official duties to make the statement in question, the
Garcetti
rule excludes that statement from First Amendment protection, and the employer may retaliate against the employee on the basis of that speech without violating the employee’s First Amendment rights. The Tenth Circuit’s decision in
Casey
offers a concise illustration of the distinction between speech as an employee and speech as a citizen. In that case, the plaintiff was appointed Superintendent of the West Las Vegas Independent School District (the “District”) in New Mexico by the West Las Vegas School Board (the “Board”) in January 2002. In this capacity, she also served as the Chief Executive Officer (“CEO”) of the District’s Head Start program, “a federally funded initiative aimed at providing educational opportunities, meals, and health care services to low-income children between three and five years of age.”
Casey,
The appellate court identified “three specific sets of communications that Ms. Casey cites as the bases for her First Amendment retaliation claims, those regarding (i) the Head Start Program, (ii) the New Mexico Open Meetings Act, and (iii) miscellaneous other violations of state or federal law....”
Id.
at 1329. Ms. Casey conceded, and the appellate court agreed, that the third category of communications, comprised of Ms. Casey’s statements to the Board regarding miscellaneous violations of federal and state law in its routine operations, was clearly unprotected speech under the
Garcetti
rule because “these statements fell within the scope of her duties as Superintendent because they were aimed solely to the School Board to which she reported and her job admittedly included advisfing] Defendants about the lawful and proper way to conduct school business.” Id. (quotation marks and citation omitted, alteration in original). With respect to the first category of communications — -Ms. Casey’s statements regarding fraud in the Head Start program — the court divided those communications into two sub-categories: statements directed to Board members, and Ms. Casey’s direction to her assistant to notify the regional Head Start office of the possible fraud. As to
Another appellate decision addressing the application of
Garcetti
to circumstances similar to those presented here is
Freitag v. Ayers,
(a) Reporting sexually hostile inmate conduct to agents of the California Department of Corrections, either formally or informally;
(b) Documenting Pelican Bay State Prison’s responses or failures to respond to Plaintiffs reports of sexually hostile inmate conduct;
(c) Informing Cal Terhune, Director of the California Department of Corrections, of either the inmates’ sexually hostile conduct or of Pelican Bay State Prison’s responses or failures to respond;
(d) Informing State Senator Richard Polanco either of sexually hostile conduct or of the Pelican Bay State Prison’s responses or failures to respond;
(e) Reporting either sexually hostile conduct or Pelican Bay State Prison’s responses or failures to respond to the Office of the Inspector General; or
(f) Cooperation with the investigation conducted by the Office of the Inspector General.
The general principle running through these and other cases applying
Garcetti
to similar situations is that, when a public employee airs a complaint or grievance, or expresses concern about misconduct, to his or her immediate supervisor or pursuant to a clear duty to report imposed by law or employer policy, he or she is speaking as an employee and not as a citizen; in such cases, the First Amendment does not protect the employee’s speech from discipline or retaliation by the employer.
9
In such circumstances, the employer is free to “discipline” the employee without violating the employee’s First Amendment rights.
10
Garcetti
Weintraub argues that his First Amendment retaliation claim survives
Garcetti
in its entirety, but cites only one case,
Sassi v. Lou-Gould,
No. 05-CV-10450,
Weintraub’s situation is clearly distinguishable from
Sassi
Unlike Chief Sassi, who voluntarily wrote in his capacity as a private citizen about general problems in the police department to an external governmental organization, Weintraub’s conversation with Goodman and his formal grievance were purely internal communications pursuant to an established dispute-resolution policy for the governmental agency by which he was employed. Chief Sassi’s letter is analogous to Officer Friet-ag’s communications with Senator Polanco and the Office of the Inspector General that the Ninth Circuit held to be protected speech in
Freitag,
whereas Weintraub’s speech is analogous to the disposition memorandum that ADA Ceballos submitted to his direct superiors, pursuant to his official duties as a calendar deputy.
Sassi
therefore does not provide a basis upon
It is therefore clear that the Supreme Court’s decision in Garcetti precludes Weintraub’s § 1983 claim, to the extent that that claim is based on Weintraub’s private conversation with Goodman and his formal grievance. 12 To the extent, however, that Weintraub claims the City retaliated against him for his conversations with other teachers regarding the facts underlying his grievance, he may present that claim to the jury.
3. Plaintiff Shall be Permitted to Pursue an Interlocutory Appeal
28 U.S.C. § 1292(b) provides that, “[w]hen a district judge, in making in a civil action an order not otherwise appeal-able under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.” The Court believes that those criteria are satisfied here. The question of how a district court is to distinguish which acts of a public employee are performed pursuant to an employment duty has been addressed by the Second Circuit only in one brief, unpublished opinion.
See DeFilippo v. New York State Unified Court Sys.,
No. 06-1561-CV,
4. The Parties Motions In Limine are Denied as Unripe
In anticipation of the trial of this case that was to commence on May 29, 2007, both parties have submitted motions in limine challenging the admissibility of various proposed exhibits. Because trial must now be postponed indefinitely pending appeal of this order, and because the outcome of that appeal may affect the evidence that both sides intend to introduce at trial, the motions in limine are hereby denied as not yet ripe for adjudication, without prejudice and with leave to renew when the trial of this case is rescheduled.
CONCLUSION
For the foregoing reasons, the City’s motion to reconsider this Court’s order denying summary judgment as to Wein-traub’s § 1983 claim for First Amendment retaliation is GRANTED. On reconsideration, the City’s motion for summary judgment as to the § 1983 claim is GRANTED in part and DENIED in part. The parties’ motions in limine regarding the admissibility of various proposed exhibits are hereby DENIED, with leave to renew those motions when the trial is rescheduled.
SO ORDERED.
Notes
. All of the individual defendants in this action are individuals employed by the public school system as teachers and administrators. All of the defendants are being represented by the New York City Office of Corporation Counsel. The Court shall therefore refer to the defendants collectively as the “City.”
. Familiarity with the facts of this case and the issues of law discussed in "Weintraub I is herein presumed.
. In one instance, Weintraub’s superiors failed to comply with a grievance arbitrator's order to delete substantial portions of an unfavorable observation report from Wein-traub’s file, instead drawing thin lines through the portions of the report that the arbitrator found to be unfounded.
See Weintraub I,
.
See Weintraub
I,
. The
Garcetti
opinion does not elaborate on the role of a calendar deputy, except to note that the position involves "certain supervisory responsibilities over other lawyers.”
. Likewise, the Court’s holding in
Connick
that “that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest ... a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior” was not generally interpreted prior to
Garcetti
as suggesting that speaking "as a citizen” meant anything more than speaking upon a matter of public, as opposed to purely private, concern.
. As the
Garcetti
court noted, neither the fact that a state employee's speech pertains to matters relevant to his official duties, nor the fact that it was made in private to his supervisor rather than in a public forum, is disposi-tive of the First Amendment inquiry.
See Garcetti,
. The Freitag court held that an unresolved issue of fact existed with respect to category (c), because the court was "unsure whether prison guards are expected to air complaints regarding the conditions in their prisons all the way up to the Director of the CDCR at the state capital in Sacramento.” Id. at 546.
.
See, e.g., Mills v. City of Evansville,
. Garcetti draws no distinction between good-faith employer discipline based on an employee's incompetent or insubordinate conduct, which the government in its capacity as employer would presumably have been free to punish even under the unaltered Pickering test, and bad-faith retaliation based on an employee’s "blowing the whistle” on internal misconduct or other facts that cause public embarrassment to the employer. The Garcetti rule clearly encompasses the latter category of employee speech when made pursuant to an employee's job duties, though such speech would have been protected under the old Pickering rule.
Like other courts that have applied
Garcetti
in similar circumstances, this Court is "is gravely troubled by the effect of
Garcetti "
upon situations such as this one, in which a public employee is deprived of a federal constitutional remedy for his employer’s alleged bad-faith retaliation for statements that were neither incompetent nor insubordinate, but rather identified legitimate issues regarding the safe and effective operation of the public school system.
Williams v. Riley,
. The
Sassi
court held that the plaintiff had standing to sue for retaliation on the basis of statements made by his father.
See id.
. Mr. Weintraub also argues that
Garcetti
is not dispositive of his § 1983 claim because the
Garcetti
majority rejected Justice Souter’s argument in dissent that its opinion “may have important ramifications for academic freedom, at least as a constitutional value,”
. Aside from
DeFilippo,
the Second Circuit has cited
Garcetti
in only six other cases.
See Reuland v. Hynes,