Bearss v. Wilton , 445 F. App'x 400 ( 2011 )

10-3617-cv
Bearss v. Wilton
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 3rd day of November, two thousand eleven.
Present:
RALPH K. WINTER,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
____________________________________________________________
DEBRA BEARSS,
Plaintiff-Appellant,
- v. - No. 10-3617-cv
WENDY WILTON, Individually and in her capacity as
City Treasurer of the City of Rutland, CHRISTOPHER LOURAS,
Individually and in his capacity as Mayor of the City of Rutland,
CITY OF RUTLAND, VERMONT,
Defendants-Appellees.
____________________________________________________________
For Plaintiff-Appellant: PAUL S. KULIG, Kulig & Sullivan, P.C., Rutland, VT
For Defendants-Appellees: KEVIN J. COYLE, McNeil, Leddy & Sheahan, PC,
Burlington, VT (John T. Leddy, McNeil, Leddy &
Sheahan, PC, Burlington, VT, James F. Carroll,
English, Carroll & Boe, PC, Middlebury, VT, on the
brief)
Appeal from the United States District Court for the District of Vermont (Conroy, M.J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Debra Bearss appeals from a judgment, entered on August 10, 2010,
by the United States District Court for the District of Vermont (Conroy, M.J.), granting
Defendants-Appellees’ motion for summary judgment and dismissing Bearss’s claims arising
under 42 U.S.C. § 1983 for violation of Bearss’s rights under the First and Fourteenth
Amendments. Having dismissed the federal claims, the district court declined to exercise
supplemental jurisdiction over the remaining state law claims. We assume the parties’
familiarity with the facts, procedural history, and specification of issues on appeal.
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed R.
Civ. P. 56(a). “We review de novo a district court’s grant of summary judgment, drawing all
factual inferences in favor of the non-moving party.” Sousa v. Roque, 578 F.3d 164, 169 (2d Cir.
2009) (internal quotation marks omitted).
We turn first to Bearss’s First Amendment retaliation claims. “To survive summary
judgment on a section 1983 First Amendment retaliation claim a plaintiff must demonstrate that
he engaged in protected speech, and that the speech was a substantial or motivating factor in an
adverse decision taken by the defendant.” Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d
147, 152 (2d Cir. 2006). “Whether speech by a public employee is protected from retaliation
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under the First Amendment begins with this question: ‘whether the employee spoke as a citizen
on a matter of public concern.’” Huth v. Haslun, 598 F.3d 70, 73 (2d Cir. 2010) (quoting
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “If a public employee speaks not as a citizen
but instead pursuant to his or her ‘official duties,’ an employer’s response to that speech does not
violate the First Amendment.” Id. at 74.
On appeal, Bearss argues that the district court erred in dismissing her claims of First
Amendment retaliation based on two instances of allegedly protected speech: (1) statements
published in a local newspaper rebutting allegations that former city officials had deleted public
documents in violation of state law; and (2) testimony given by Bearss in July 2007 at a Board of
Civil Authority (“BCA”) hearing regarding Bearss’s job performance in which she rebutted
allegations that employee benefits had been improperly made by the former city treasurer.
The undisputed record demonstrates that, on both occasions, Bearss spoke as a public
employee and not as a citizen on a matter of public concern, and thus these instances of speech
were not protected. See Weintraub v. Bd. of Educ., 593 F.3d 196, 200 (2d Cir. 2010)
(“Regardless of the factual context, we have required a plaintiff alleging retaliation to establish
speech protected by the First Amendment.”) (internal quotation marks omitted).
With respect to the newspaper statements, Bearss was quoted in the Rutland Herald:
Debra Bearss, the city’s information technology coordinator, said no public
information was deleted from city computers and no one at City Hall did anything out
of the ordinary to them.
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Cassarino’s computer, for example, appears to have been used only rarely, she said.
His assistant, Jean Ross, who still works at City Hall “receives all the files in that
office,” Bearss said. “I don’t think John used the computer very much.”
[Former Assistant City Attorney Henry] Brislin had dozens of public files stored on
his machine, and Bearss said she e-mailed all of them to city Legal Assistant Lisa
Pearson before clearing out his electronic files . . . .
As for Wilkinson’s computer, Bearss said she has never touched it. . . .
J.A. 26-27.
In finding that the speech was not entitled to the protection of the First Amendment,
the district court noted that “Bearss was acting as an employee with first-hand knowledge of
the City’s computer use when she responded to the reporter’s inquiries.” J.A. 195. We
agree. “[U]nder 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.” Weintraub, 593 F.3d at 203. Prior
to the newspaper statements, Wilton had circulated a memorandum that stated that “any
computer issues need to be addressed to Debra Bearss, IT Coordinator.” J.A. 25. Bearss
spoke to the newspaper as the “city’s information technology coordinator” and, therefore, we
conclude that her statements were “speech that owes its existence to a public employee’s
professional responsibilities.” Garcetti, 547 U.S. at 421; see also Carter v. Inc. Vill. of
Ocean Beach, 415 F. App’x 290, 293 (2d Cir. 2011) (summary order) (affirming summary
judgment on the ground that the misconduct that plaintiffs identified was learned “only by
virtue of their jobs as police officers”); Foley v. Town of Randolph, 598 F.3d 1, 7-8, 10 (1st
Cir. 2010) (holding that fire chief’s speech to press was “pursuant to official duties” because
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under the circumstances it took on character of “official communications” and had
“imprimatur of the Fire Department”).
We turn next to Bearss’s testimony at the 2007 BCA hearing. The district court
found that Bearss testified predominantly about matters within the scope of her job duties,
specifically relating to the defense of her job performance against Wilton’s accusations of
incompetence and inexperience. Bearss points to statements that she made concerning
allegations that employee benefit determinations had been made in violation of City policy,
rebutting them as “policy decisions” with which Bearss personally did not agree. Bearss
argues that the statements addressed potential malfeasance by the former city treasurer and
thus she spoke as a private citizen on a matter of public concern. Under those circumstances,
she claims, her speech was protected by the First Amendment. See, e.g., Johnson v. Ganim,
342 F.3d 105, 112 (2d Cir. 2003) (“Discussion regarding current government policies and
activities is perhaps the paradigmatic matter of public concern.” (alteration and internal
quotation marks omitted)). Nevertheless, the district court noted that Bearss’s speech “was
not intended to remedy working conditions for a group of City employees, and was not
aimed at any alleged City-wide epidemic affecting many employees.” J.A. 200; see also
Plofsky v. Giuliano, 375 F. App’x 151, 153-54 (2d Cir. 2010) (summary order) (holding that
complaints by a plaintiff and his lawyer about Connecticut State Ethics Commission
disciplinary proceeding were “largely personal in nature” even though “contemporaneous
newspaper reports suggested there was, in fact, some public interest in the statements made
by plaintiff and his attorney”).
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Taking into account the “content, form, and context of a given statement, as revealed
by the whole record,” Sousa, 578 F.3d at 170 (quoting Connick v. Myers, 461 U.S. 138, 147-
48 (1983)) (internal quotation mark omitted), we agree with the district court that the record
supports the conclusion that Bearss’s statements were motivated by personal interest in
responding to criticism of her job performance and not motivated by a desire to “advance a
public purpose,” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008). Moreover,
the absence of a citizen analogue further supports our conclusion that her speech was not
made as a private citizen, but rather as a public employee. In Weintraub, this Court held that
the “lodging of a union grievance is not a form or channel of discourse available to non-
employee citizens.” 593 F.3d at 204. Bearss’s statements were made in a forum not
available to citizens who not are not employees of the City of Rutland.
We turn next to Bearss’s retaliation claim based on political association. To
establish a First Amendment retaliation claim for political association, the plaintiff must
show that she engaged in political association and that such conduct was the cause of
defendants’ retaliatory action. See Brady v. Town of Colchester, 863 F.2d 205, 217 (2d Cir.
1988). On appeal, Bearss argues that the record shows that soon after Bearss defended
Wilkinson’s actions, Wilton attempted to fire her. Moreover, Bearss emphasizes that while
Wilton’s firing decision was on appeal, Wilton made a statement on a local talk radio show
that once Bearss had been terminated “the last of the political insiders” would be gone. Pl.
Br. 47. The plaintiff thus claims that she “had a protected interest in making statements on
matters of political significance without suffering retaliation on the basis that such statements
made Bearss (in Wilton’s eyes) a ‘political insider.’” Id. at 48. Defendants argue that Bearss
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has failed to show that her statements in defense of the former city treasurer were made for
political reasons, but rather, such statements were made as a public employee in defense of
her job, and thus, she was not engaged in political association protected by the First
Amendment. We agree with defendants, for the reasons discussed above with respect to
Bearss’s First Amendment claims regarding her protected speech, that the record is
insufficient to show that Bearss was engaged in protected political association when she
spoke in defense of her former supervisor’s decisionmaking. The evidence does not support
Bearss’s contention on appeal that Wilton’s actions were based on any political association
between Bearss and the former city treasurer.
We turn finally to Bearss’s procedural due process claim relating to the 2008 BCA
hearing. “An essential principle of due process is that a deprivation of life, liberty, or
property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the
case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). “This principle
requires ‘some kind of a hearing’ prior to the discharge of an employee who has a
constitutionally protected property interest in his employment.” Id. Such an employee “is
entitled to oral or written notice of the charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the story.” Id. at 546.
Bearss claims she was unlawfully deprived of her property interest in her position
when, at the April 2008 hearing, the BCA did not permit her to present all the evidence
regarding Wilton’s allegedly retaliatory conduct. The district court held that defendants were
entitled to summary judgment because “the undisputed facts reveal that neither party had any
control or authority over the procedures followed at the April 2008 BCA hearing.” J.A. 209.
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It further found that all of the defendants were entitled to summary judgment because “the
undisputed facts reveal that Bearss was afforded written notice of the charges, an explanation
of the employer’s evidence, and an opportunity to present her side of the story at the April
2008 BCA hearing.” Id. A review of the transcript of the 2008 BCA hearing demonstrates
that Bearss’s argument is meritless: despite initial objections from the City’s attorney, the
Board granted Bearss’s attorney ample opportunity to elicit testimony from Bearss until he
determined that he had nothing more to ask. Bearss’s attorney concluded by stating,
“Nothing further.” J.A. 77. Thus, the BCA did not deprive Bearss of the opportunity to fully
present evidence of Wilton’s allegedly retaliatory conduct.
We have considered Bearss’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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