DAVID H. WEINTRAUB, Petitioner-Appellant, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, COMMUNITY SCHOOL DISTRICT 32, CITY OF NEW YORK, DOUGLAS GOODMAN, DAISY O’GORMAN, FELIX VAZQUEZ, FRANK MILLER, AIDA SERRANO, LAWRENCE BECKER, JERRY CIOFFI, Respondents-Appellees.
Docket No. 07-2376-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
January 27, 2010
August Term 2008 (Argued: November 25, 2008)
Before: JACOBS, Chief Judge, WALKER, and CALABRESI, Circuit Judges.
Judge Calabresi dissents in a separate opinion.
RICHARD A. ENGELBERG, Kreines & Engelberg, Mineola, NY, for Petitioner-Appellant.
EDWARD F.X. HART (Leonard Koerner, on the brief), of Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Respondents-Appellees.
JOHN M. WALKER, JR., Circuit Judge:
Petitioner-Appellant David H. Weintraub, a former New York City public school teacher, appeals from an order of the United States District Court for the Eastern District of New York (I.
We find that Weintraub’s filing of the grievance was in furtherance of one of his core duties as a public school teacher, maintaining class discipline, and had no relevant analogue to citizen speech. Accordingly, we conclude that, under Garcetti, 547 U.S. at 421-24, Weintraub filed the grievance “pursuant to [his] official duties,” and thus, not as a citizen for purposes of the First Amendment. The grievance, therefore, is not protected speech, and we affirm the district court’s dismissal of Weintraub’s retaliation claim.
BACKGROUND
I. Underlying Events
In September 1998, Weintraub began teaching fifth grade at P.S. 274, a public school in Brooklyn, New York. During his first two months, there were no apparent problems in his class, with his performance, or between Weintraub and school administrators.
On Friday, November 6, 1998, after a student threw a book at him during class, Weintraub referred the student to his immediate supervisor, Assistant Principal Douglas Goodman. Shortly thereafter, Goodman returned the student to Weintraub’s classroom. The next school day, the same student threw additional books at Weintraub. Weintraub again referred the student to Goodman, who returned the student to Weintraub’s class.
Weintraub was “upset” by Goodman’s decision not to discipline the student and concerned that “if this child could do this to [Weintraub], . . . it would put the . . . other students at risk.” (Pl.’s Dep. 51:17-19, Jul. 19, 2002.) Weintraub subsequently learned that the same student “put a kid in the
After the second book-throwing incident, Weintraub told Goodman, “If nothing is going to be done, I [will] have to file a grievance with the union to have something done about this because [the student] should be suspended for this,” (Pl.’s Dep. 43:3-6), and “it is not an environment a teacher would want to go to where a child is allowed to throw a book at teachers,” (Pl.’s Dep. 47:10-12). Weintraub also “underst[oo]d” that under “citywide Board of Education policy . . . a student assaulting the teacher in 5th grade . . . should have been suspended.” (Pl.’s Dep. 44:3-6.) Weintraub told other teachers at P.S. 274 about the incidents and his intention to file a grievance, and then filed the grievance with his union representative.
Weintraub alleges that because of his complaints, including his grievance, Goodman and other school officials retaliated against him through “acts of intimidation, harassment, workplace abuse, and deliberate attempts to undermine [his] authority.” Weintraub I, 423 F. Supp. 2d at 42. Specifically, Weintraub avers that he received unfounded negative classroom evaluations, performance reviews, and disciplinary reports; was wrongfully accused of sexually abusing a student and abandoning his class; was arrested for misdemeanor attempted assault of another teacher at P.S. 274 on allegedly false grounds; and was ultimately terminated. After the criminal charges against him were dropped, Weintraub was denied reinstatement to teach and unsuccessfully
II. District Court Proceedings
In July 2000, Weintraub commenced this action in the Eastern District of New York asserting several claims against Defendants, including adverse employment retaliation in violation of the First Amendment. Defendants moved for summary judgment on all of Weintraub’s claims.
On April 28, 2006, the district court denied Defendants’ motion with respect to Weintraub’s First Amendment claim, reasoning that “the content of speech questioning an administrative response, or lack thereof, to discipline problems in the classroom relates to a matter of public concern, regardless of whether that speech comes from a[n] elected official, citizen, or teacher.” Id. at 52. Finding that the “form and context of Weintraub’s statements” did not warrant a finding to the contrary, and that Weintraub’s “primary motivation was a general concern for safety in the classroom and school,” rather than “a desire for some personal gain,” the district court held that “Weintraub’s complaint to Goodman and subsequent grievance were protected by the First Amendment.” Id.
On May 29, 2007, after Defendants moved for reconsideration in light of the Supreme Court’s subsequent decision in Garcetti, 547 U.S. at 421-24, the district court granted in part and denied in part Defendants’ motion for summary judgment with respect to Weintraub’s First Amendment claim. The district court identified
(1) [his] private conversation with Goodman in which he expressed his dissatisfaction with Goodman’s handling of the book-throwing incidents and threatened to file a grievance if the situation was not rectified; (2) Weintraub’s conversations with other teachers about the incidents and Goodman’s failure to impose adequate discipline; and (3) the formal grievance itself.
Weintraub v. Bd. of Educ. of City of N.Y., 489 F. Supp. 2d 209, 214 (E.D.N.Y. 2007) (“Weintraub II”).
The district court denied summary judgment with respect to the second category, because “Weintraub’s conversations with other teachers about his conflict with Goodman . . . [we]re clearly not within the scope of his employment duties.” Id. at 220.
In contrast, the district court concluded that under Garcetti and in light of cases from other circuits applying Garcetti in similar situations, the First Amendment does not protect the first and third categories of speech: “In both instances, Weintraub was speaking as an employee, proceeding through official channels to complain about unsatisfactory working conditions.” Id. at 219-20. The district court, however, believed that “a substantial ground for difference of opinion may exist on” the precise issue of “whether a public employee acts as an ‘employee,’ and not as a ‘citizen,’ when he notifies his supervisors, either formally or informally, of an
Pursuant to
DISCUSSION
We review
“Regardless of the factual context, we have required a plaintiff alleging retaliation to establish speech protected by the First Amendment.” Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008). Under the First Amendment, “a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142 (1983).
“Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti, 547 U.S. at 417; see also Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); Connick, 461 U.S. at 147. A public employee, however, must “by necessity . . . accept certain limitations on his or her freedom,” because, his or her speech can “contravene governmental policies or impair the proper performance of governmental functions.” Garcetti, 547 U.S. at 418-19. The Supreme Court’s employee-speech jurisprudence reflects “the common sense realization[s] that government offices could not function if every employment decision became a constitutional matter,” and that “government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 143, 146. Accordingly, the Supreme Court has strived “to arrive at a balance between the interests of the teacher, as
In Garcetti, the Supreme Court, while keeping “these principles in mind,” 547 U.S. at 420, “‘narrowed the Court’s jurisprudence in the area of employee speech’ by further restricting the speech activity that is protected.” Reilly v. City of Atl. City, 532 F.3d 216, 228 (3d Cir. 2008) (quoting Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir. 2007)). Garcetti involved a deputy district attorney’s memorandum to his supervisor expressing his view that an affidavit used to obtain a search warrant contained serious misrepresentations. 547 U.S. at 414. Garcetti explained that “[u]nderlying [the Supreme Court’s employee-speech jurisprudence] has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’” Id. at 420 (quoting Connick, 461 U.S. at 154). Specifically, Garcetti “h[e]ld that when public employees make statements pursuant to their official duties, 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.
“If [we] determine[] that [Weintraub] either did not speak as a citizen or did not speak on a matter of public concern,
The Garcetti Court defined speech made “pursuant to” a public employee’s job duties as “speech that owes its existence to a public employee’s professional responsibilities.” 547 U.S. at 421. In Garcetti, this inquiry was straightforward because the plaintiff admitted that his speech was part of his official job duties. See id. at 424. In the instant case, Weintraub asserts that he did not file his grievance pursuant to his official duties. Instead, he contends that “[t]he key” to the First Amendment inquiry provided by Garcetti is whether he was “required, as part of his employment duties to initiate grievance procedures against . . . Goodman.” (Appellant’s Br. at 11 (emphasis in original).) Weintraub further alleges that
We are unpersuaded. The objective inquiry into whether a public employee spoke “pursuant to” his or her official duties is “a practical one.” Garcetti, 547 U.S. at 424. The Garcetti Court cautioned courts against construing a government employee’s official duties too narrowly, underscoring that
[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.
Id. at 424-25. In light of Garcetti, other circuit courts have concluded that speech that government employers have not expressly required may still be “pursuant to official duties,” so long as the speech is in furtherance of such duties,
In Williams, the Fifth Circuit concluded that the plaintiff, an Athletic Director, wrote memoranda to his school principal and office manager requesting information about the use of funds
Similarly, in Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008), the Seventh Circuit held that when a professor complained to university officials about the difficulties he encountered in administering an educational grant he had been awarded, he was speaking as a faculty employee because the grant, though not necessarily a formal requirement of his job, was “for the benefit of students” and therefore “aided in the fulfillment of his teaching responsibilities.” Id. at 773. See also Mills v. City of Evansville, 452 F.3d 646, 648 (7th Cir. 2006) (same for a public officer’s negative remarks following an official meeting to discuss plans for department reorganization, because the comments were made “in her capacity as a public employee contributing to the formation and execution of official policy”). The Ninth, Tenth, and Eleventh Circuits have drawn similar conclusions, finding that “a public employee’s duties are not limited only to those tasks that are specifically designated,” Phillips v. City of Dawsonville, 499 F.3d 1239, 1242 (11th Cir. 2007). See,
We join these circuits and conclude that, under the First Amendment, speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. In particular, we conclude that Weintraub’s grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” Williams, 480 F.3d at 694, as a public school teacher -- namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning. See,
Judge Calabresi’s dissent questions whether our decision today conflicts with the result in Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979). Dissent of J. Calabresi at [5]. It does not. In Givhan, a junior-high English teacher was dismissed primarily because she internally aired her grievances regarding the placement of black people working in the cafeteria, the integration of the administrative staff, and the placement of black Neighborhood Youth Corps workers in semi-clerical positions. See id. at 411; Ayers v. W. Line Consol. Sch. Dist., 555 F.2d 1309, 1313 (5th Cir. 1977). Givhan expressed concern with the impression that the “respective roles of whites and blacks” in these positions would leave on black students. Ayers, 555 F.2d at 1313. From our brief recitation of the facts of Givhan, it is plain that, unlike here, the grievance she aired was not in furtherance of the execution of one of her core duties as an English teacher. Givhan’s grievance concerned the general impression that blacks students might take away from the staffing of non-teaching positions; Weintraub’s grievance, in contrast, concerns the administration’s refusal to discipline a student who threw books at Weintraub during class.
Our conclusion that Weintraub spoke pursuant to his job duties is supported by the fact that his speech ultimately took the form of an employee grievance, for which there is no relevant citizen analogue. The Garcetti Court drew a distinction between the unprotected speech at issue in that case, and “public statements outside the course of performing [an employee’s] official duties” which “retain some possibility of First Amendment protection.” 547 U.S. at 423. While “[t]he First Amendment protects some expressions related to the speaker’s job,” id. at 421, “[w]hen a public employee speaks pursuant to employment responsibilities, . . . there is no relevant analogue to speech by citizens who are not government employees,” id. at 424. Garcetti provided two examples of speech with a citizen analogue: (1) a schoolteacher’s “letter to a local newspaper,” which the Supreme Court held to be protected in Pickering, because it had “no official significance and bore similarities to letters submitted by numerous citizens every day,” and (2) “discussi[ons of] politics with a co-worker.” id. at 422-23. Although the lack of a citizen analogue is “not dispositive” in this case, id. at 420, it does bear on the perspective of the speaker -- whether the public employee is speaking as a citizen -- which is the central issue after Garcetti, see Williams, 480 F.3d at 692 (stating that “[u]nder Garcetti, we must shift our focus from the content of the speech to the role the speaker occupied when he said it” to determine whether the speaker was
In Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), the Ninth Circuit shed light on when a relevant analogue to citizen speech exists. The Freitag court focused on a former prison guard’s “responsibility as a citizen to expose . . . official malfeasance” in holding that the First Amendment protected her complaints to a state senator and the Inspector General’s office about her superior’s failure to respond to inmates’ sexually explicit behavior towards female guards. Id. at 545 (emphasis in original). The Freitag court emphasized that there was a relevant citizen analogue to the employee’s speech, because the “right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.” Id.
The lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general. Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication made pursuant to an existing dispute-resolution policy established by his employer, the Board of Education.
Notwithstanding the Supreme Court’s pronouncement in Garcetti, Weintraub urges us to find that his speech is protected by the First Amendment under Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158 (2d Cir. 2006), a case we decided two months before the Supreme Court issued its decision in Garcetti. In Cioffi, we held that the First Amendment protected a high school athletic director’s letter to his supervisor and to the school board criticizing the school district’s handling of a sexual harassment and hazing incident. Id. at 161-65. Weintraub directs us to a footnote in Cioffi opining that “[t]he Supreme Court’s forthcoming decision in Garcetti . . . as to whether the First Amendment protects an employee’s purely job-related speech . . . does not affect the disposition of [Cioffi’s] case because the record here
We are not persuaded that Cioffi compels us to find that the First Amendment protects Weintraub’s filing of a grievance. In Cioffi, we held that a letter that an athletic director wrote to his supervisor and to the school board was protected speech. Id. at 161, 165. The speech at issue in Cioffi had been publicly disclosed and the athletic director subsequently pursued the public controversy in a press conference; thus, the “public’s interest in receiving the well-informed views” of the athletic director, as a government employee, Garcetti, 547 U.S. at 419, was strong. In contrast, Weintraub never communicated with the public about the book-throwing incidents and the school administration’s subsequent refusal to discipline the particular student. Accordingly, we remain convinced that under Garcetti, because Weintraub made his statements “pursuant to” his official duties as a schoolteacher, he was “not speaking as [a] citizen[] for First Amendment purposes,” 547 U.S. at 421, and thus, that his speech was not protected.
CONCLUSION
For the reasons stated above, the order of the district court is AFFIRMED.
Garcetti v. Ceballos, 547 U.S. 410 (2006), lends itself to multiple interpretations, and the majority’s decision to construe it broadly (and, concomitantly, to construe public employees’ First Amendment protections narrowly), while a possible reading, is not compelled by anything in the Supreme Court’s opinion. Because I think a less expansive definition of speech made “pursuant to . . . official duties,” id. at 421, is both a more appropriate reading of Garcetti and a more constructive resolution of the “delicate balancing” required by the First Amendment in the public employment context, id. at 423, I respectfully dissent.
As I read the majority opinion, it holds that a public employee’s speech is “pursuant to official duties” and accordingly unprotected when it both (a) is “in furtherance of” the employee’s “core duties,” and (b) “ha[s] no relevant analogue to citizen speech.” Maj. Op. at 3. To be sure, Garcetti contains some language that can be read along these lines. But Garcetti leaves open the definition of “pursuant to official duties,” and I do not think that the majority’s two requirements, either separately or in combination, provide the right doctrinal framework for analyzing that question.1
The majority’s first prong, which looks to whether speech is “in furtherance of” an employee’s “core duties,” seems to me too broad. The majority’s discussion could be read to imply that—assuming the second prong of the majority’s test is also satisfied—classroom
The majority’s second prong, which asks whether there is a “relevant citizen analogue” to Weintraub’s speech, Maj. Op. at 16, is also a plausible interpretation of Garcetti, but I am not convinced that it is the right one. I do not read Garcetti’s discussion of “analogue[s] to speech by citizens who are government employees,” Garcetti, 547 U.S. at 424, to set out a doctrinal requirement. Rather, the Supreme Court was expounding upon “the theoretical underpinnings of [its] decisions.” Id. at 423. That is, it was explaining why speech that is “pursuant to employment responsibilities,” id. at 424, is unprotected, not defining that category of speech.
The idea that the existence of citizen analogues is a prerequisite for suit seems contradicted by Garcetti’s statement that the fact that a public employee “expressed his views inside his office, rather than publicly, is not dispositive.” Id. at 420; accord Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979) (“[The Supreme] Court’s decisions . . . do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.”). A “citizen analogue” inquiry will often replicate the private/public distinction that the Supreme Court has disavowed. The majority’s analysis illustrates this problem, noting that “[r]ather than taking his grievance elsewhere, through channels available to citizens at large, Weintraub’s speech took the form of an internal communication made pursuant to an existing dispute-resolution policy established by his employer.” Maj. Op. at 18.2 The Supreme Court has made clear that not all internal speech is unprotected, see Garcetti, 547 U.S. at 420, and accordingly some speech that is not “through channels available to citizens at large” must be free from retaliation.
Even when read together, the majority’s two prongs permit readings that would allow retaliation against much speech that seems to me to require protection and to remain protected after Garcetti. This sits uneasily with the Supreme Court’s repeated assertion that “the members of a community most likely to have informed and definite opinions” about an issue must “be able to speak out freely on such questions without fear of retaliatory dismissal.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 572 (1968); accord Garcetti, 547 U.S. at 421.
Consider Givhan, for example. In Givhan, a junior-high teacher had privately requested that the school principal make a number of administrative changes, all of which “reflect[ed] Givhan’s concern as to the impressions on black students of the respective roles of whites and blacks in the school environment.” Ayers v. W. Line Consol. Sch. Dist., 555 F.2d 1309, 1313 (5th Cir. 1977). Writing for a unanimous Supreme Court, then-Justice Rehnquist wrote that Givhan’s speech was protected even though it consisted of a private, internal communication and even though the principal was a willing recipient of her speech. See Givhan, 439 U.S. at 415-16. Would Givhan come out the same way under the majority’s framework? Givhan’s speech concerned her students’ opinions on the school’s handling of racial issues, a matter that has serious pedagogical implications. Accordingly, it could be described as a “means to fulfill . . . [her] primary employment responsibility of teaching,” and, thereby, as an effort to further her core duty of “effective teaching.” Maj. Op. at 14-15 (internal quotation marks and citations omitted);
By contrast, when an employee’s speech is not part of the implementation of the employer’s business operations, the employer does not depend on “substantive consistency and clarity,” id. at 422, in that speech. Instead, employers may well benefit from a narrowly defined exception to First Amendment protection, for an exemption that sweeps more broadly than necessary will likely encourage employees to make complaints publicly when they might otherwise be handled internally. See id. at 424 (“Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.”).4
I would hold the scope of Garcetti to be coextensive with its prime concerns and to go no further. An employee’s speech is “pursuant to official duties” when the employee is required to
In Garcetti, for example, the plaintiff Richard Ceballos’s responsibilities as a calendar deputy called for him “to advise his supervisor about how best to proceed with . . . pending case[s].” Id. at 421. The speech at issue involved a memo recommending that a case assigned to Ceballos be dismissed, which Ceballos was not authorized to do without his supervisor’s approval. Brief of Petitioner at 4, Garcetti, 547 U.S. 410 (2006) (No. 04-473). The memo that Ceballos wrote was not merely related to his job duties, but rather it was the very thing he was paid by the Los Angeles County District Attorney’s Office to do. Without Ceballos’s competent advice and input, his employer could not function anywhere near as well. His employer therefore had a need to supervise the quality and content of that speech, and was entitled to discipline him accordingly.
As far as the record reflects, Appellees here did not in any way depend on Weintraub bringing union grievances or refraining from bringing them (subject, of course, to the
In the present posture of the case, I take it as a given that Weintraub’s duties entailed informing the school administration of violent incidents, such as those at the root of this case, as a means of facilitating the school’s disciplinary apparatus. This justifies the District Court’s holding that Weintraub’s comments to his supervisor were not protected.5 But grieving the administration’s response through his union is quite another matter. And neither the Appellees nor the majority direct us to any evidence that such a response was in any way required of Weintraub. It is possible that the union grievance was an official part of a process by which employees brought subjects of concern to Appellees’ attention, facilitating corrective action; if this were the case, then Weintraub’s grievance might be pursuant to his official duties and exempt from First Amendment protection.6 But on the record before us, there is no reason to think this is so.7
For these reasons, I respectfully dissent.