for the second circuit debbie almontaser, plaintiff
TRANSCRIPT
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
DEBBIE ALMONTASER, Plaintiff-Appellant,
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, individually and in his official capacity as Chancellor of the New York City Department of Education; ROSEMARY STUART, individually and in her official capacity as Community Superintendent of District 15 and Hiring Manager; CITY OF NEW YORK; MICHAEL BLOOMBERG, individually and in his official capacity as Mayor of the City of New York; DENNIS WALCOTT, individually and in his official capacity as Deputy Mayor for Education and Community Development,
Defendants-Appellees.
APPELLEES’ BRIEF
PRELIMINARY STATEMENT
Plaintiff-appellant Debbie Almontaser (“appellant”) appeals
from the denial of a preliminary injunction to enjoin defendants the New
York City Department of Education (“DOE”), the City of New York
(“City”), Michael Bloomberg, Mayor of the City of New York, Dennis
Walcott, Deputy Mayor for Education and Community Development, Joel I.
Klein, the Chancellor of the City School District of the City of New York,
and Rosemary Stuart, the Superintendent of Community School District 15
2
(“appellees”) from proceeding with the selection of a permanent principal
for the Khalil Gibran International Academy. Appellant also sought to
substitute a disinterested person in the place of the Chancellor and the
Community Superintendent in the selection process pursuant to C-30
regulations of the Chancellor and New York State Education Law.
In a decision dated December 5, 2007, the United States
District Court for the Southern District of New York (Sidney H. Stein, J.),
denied appellant’s application for a preliminary injunction. Following the
denial of her motion for preliminary injunction, on December 6, 2007,
appellant filed a notice of appeal in the District Court and, thereafter, sought
a stay and an expedited appeal of the decision denying preliminary
injunction. On December 7, 2007, the application for a stay was denied, and
the application for an expedited appeal was granted by this Court.
JURISDICTIONAL STATEMENT
Appellant seeks review of an order denying’s appellant’s
motion for a preliminary injunction. This Court thus has jurisdiction of the
appeal under 28 U.S.C. § 1292(a)(1) and, since appellant filed a notice of
appeal from the decision and order, the appeal is timely pursuant to Fed. R.
App. P. 4(a).
3
ISSUE PRESENTED
Where the Supreme Court has determined under Garcetti that
when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes,
whether the District Court, upon determining that appellant was speaking in
her official job capacity, correctly determined that appellant cannot
demonstrate a clear likelihood of success on the merits of her appeal and
correctly denied appellant’s motion for a preliminary injunction?
STATEMENT OF FACTS
Appellant is currently employed by the New York City
Department of Education (“DOE”) as Director of Special Projects in the
DOE’s Office of School and Youth Development (18, 137-138).1 She has
worked for the Department of Education in various capacities since 1991
(137).
In 2005, appellant, who was working as a coordinator of
external programs for District 15, was approached by New Visions for
Public Schools (“New Visions”), a not-for-profit organization that works
with DOE to set up new schools (22, 138). New Visions was considering
the possibility of a school which would focus on instruction in both Hebrew
and Arabic, and under appellant’s guidance New Visions eventually
1 Unless otherwise indicated, numbers in parentheses refer to pages in the Special Appendix.
4
modified the proposal such that the school’s regents-based curriculum would
include Arabic language and cultural studies (11, 22).
DOE announced its approval of New Visions’ proposal on
February 12, 2007, and named appellant as the project director for the
school, which was to be named the Khalil Gibran International Academy
(“KGIA”) (7, 12, 23). Upon becoming the project director for KGIA,
appellant began setting up KGIA, including developing a curriculum,
recruiting teachers, staff and students, drafting a budget, and meeting with
community groups, with the objective of beginning instruction at KGIA in
September 2007.
On or about July 2, 2007, appellant was named interim acting
principal of KGIA (7, 12). When she was named interim acting principal,
appellant’s salary increased from $70,000 to $120,000 per year (144). At
her deposition, appellant acknowledged that there were no differences in her
job duties between the two positions (144-145). She also acknowledged that
she could have been removed from that position without charges and a
hearing, and that a permanent principal would be selected through the
Chancellor’s Regulation C-30 process (145).
Appellant acknowledged that KGIA received considerable
media attention, both positive and negative, throughout the planning process
of the school (12, 23, 89). Appellant testified that she viewed responding to
press inquiries as part of her job as acting-interim principal of KGIA (203).
5
As a part of her job, appellant gave several interviews to the media,
including interviews with: Elissa Gootman of the New York Times, which
resulted in a February 13, 2007 article quoting appellant (306); Sarah
Garlend of the New York Sun in March 2007 (140); Nahal Toosi of the
Associated Press, which resulted in an April 16, 2007 Associated Press story
quoting appellant (308); Julie Bosman of the New York Times, which
resulted in a May 4, 2007 article quoting appellant (310); Jeanine Ramirez of
cable television news station NY1, which resulted in an on-air interview and
an online article quoting appellant (313); and Dana Rubinstein of The
Brooklyn Paper, which resulted in a May 19, 2007 article in that paper
quoting appellant (315). Appellant was also quoted in an article appearing
in the New York Post on May 5, 2007 (314), and she was interviewed by the
New York Daily News Editorial Board in May 2007 (144).
Appellant always referred press inquiries to the DOE press
office, and that office screened and approved the media outlets that wanted
to interview her (327). She testified at her deposition that every interview
listed above, except perhaps the first and sixth interviews - which appellant
claims not to recall - she spoke to either Melody Meyer or David Cantor of
the DOE press office to coordinate the interview (140). On most occasions
either Mr. Cantor or Ms. Meyer would prepare her for, or provide her with
an overview of, the interview. In addition, either Mr. Cantor or Ms. Meyer
6
usually would be present or on the telephone line while the interview was
being conducted (140-141). Appellant additionally testified
“So at that time and shortly after the February 12th interview, there was a strategizing press meeting with New Visions and the Department of Education where we all came to an agreement that the Department of Education would screen all media requests and make the decision whether who should be spoken to and who should do the interview. And so at that point, one of the things that was also discussed was that all interviews would have a press person on the phone” (140).
Appellant’s contact with the news media was not limited to
interviews. She also submitted an op-ed piece which appeared in the New
York Daily News on May 20, 2007 (318). As with the interviews, the
submission of the op-ed piece was coordinated with the DOE press office,
and before the piece was submitted to the Daily News, Mr. Cantor edited it
to make it more succinct and to meet space limitations.
In August 2007, an organization called Stop the Madrassa
Coalition issued a press release which alleged that an organization called
Arab Women Active in the Arts and Media (“AWAAM”) had created T-
shirts with the words “Intifada NYC”, and further alleged that appellant had
a connection to AWAAM (147-148). DOE received media inquiries
regarding that press release, and the DOE press office contacted appellant on
August 3, 2007 to advise her that the New York Post wanted an interview
(24-25, 147).
7
On August 2, 2007, the day before the DOE press office
contacted appellant about the New York Post interview, Community
Superintendent Stuart sent an e-mail to several recipients, noting that:
I met with [appellant] and her team of partners yesterday to discuss issues around the opening of the school. There were several concerns that I want you to know about.
It is highly likely that there will be a large media presence on the first day of school, and there is the possibility of demonstrations. The school has already had a great deal of press, not all of it positive, and we want to make sure the students and their families are not made to feel uncomfortable as they arrive for school. Melody Meyer, from the press office was at the meeting yesterday. She will handle this issue as far as the press is concerned. I think we need to be prepared to handle it at the school level (223).
Appellant was copied on that e-mail (223).
Appellant acknowledged that she received a call from the DOE
press office concerning the Post’s desire to interview her, and that they told
her what the subject matter of the interview would be (147, 191). A reporter
for the New York Post sent the DOE press office a list of five questions
concerning the Academy that he wanted appellant to answer (24, 40-41,
147). One of the questions was “Is it appropriate that [appellant as principal
of KGIA] be associated with a group that sells Intifada NYC T-shirts? Why
or why not?” (40, 319). The other four questions involved other aspects of
the Academy, its students, and the Academy’s board of advisors (40-41,
319-321).
8
The DOE press office forwarded the list of five questions to
appellant (192). On August 5, 2007, appellant drafted written responses to
the questions and forwarded those responses to the DOE press office to be
reviewed (192, 319). Appellant then had two conversations with Ms. Meyer
and one with Mr. Cantor in preparation for the interview with the Post
reporter. Ms. Meyer and Mr. Cantor decided that there was insufficient time
to finalize a written statement, and that it was in KGIA’s best interest that
appellant be interviewed by the Post reporter (25, 192).
Appellant acknowledged that she was prepped for the interview
by Mr. Cantor and that she was expressly told by Mr. Cantor not to talk
about the T-shirts during the interview (45, 148, 192, 197). Appellant
testified that she if she were approached personally she would have refused
to give this interview, and that she “had no choice and that [she was]
expected to participate in the Post interview ” (253).
Appellant was telephonically interviewed by the New York
Post on August 5, 2007, which resulted in an article appearing in that paper
on August 6, 2007 (12-13). The Post reporter interviewed appellant for
approximately ten minutes, with Ms. Meyer also on the telephone line (25,
192-193). During the interview, appellant told the reporter that she had
nothing to do with AWAAM and that AWAAM had no connection to
KGIA. The reporter asked appellant about the meaning of the word
“intifada” and appellant answered that the root meaning of the word is to
9
“shake off.” Appellant further noted that as the word is associated with the
Palestinian-Israeli conflict, it has a negative connotation and is associated
with violence. Appellant then told the reporter that she would not affiliate
herself with an organization that condones or promotes violence (194).
The August 6, 2007 New York Post article appeared under the
headline “City Principal Is ‘Revolting’” and the article indicated that
appellant downplayed the significance of the T-shirts (13, 43). The article
also attributed the following statements to appellant as direct quotes
“The word [intifada] means shaking off. That is the root word if you look it up in Arabic. I understand it is developing a negative connotation due to the uprising in the Palestinian-Israeli areas. I don’t believe the intention is to have any of that kind of [violence] in New York City. I think it’s pretty much an opportunity for girls to express that they are part of New York City society . . . and shaking off oppression” (13, 26, 43).
Appellant acknowledged that the language quoted in the article
was accurate except that appellant asserts that the words “and shaking off
oppression,” which appeared after the ellipsis, were part of appellant’s
previous explanation of the historic meaning of “intifada.” Appellant
testified that Melody Meyer of the DOE press office was on the telephone
for the duration of the interview and later called appellant to tell here that
she had done a good job (25).
Appellant also testified that David Cantor called her on the day
that the New York Post article ran, and criticized her for defending or
10
attempting to explain the T-shirts, and said that he had told her that she
should not discuss them (27, 197). Mr. Cantor spoke again to appellant
sometime later, and told her that he had drafted an apology for appellant to
release to the press (13, 27, 197). Appellant proposed changes to the
statement which she felt inaccurately suggested that she had been in the
wrong, but DOE released the statement of apology as it had been drafted by
Mr. Cantor (13, 27, 197-198).
Thereafter, the New York Post and the New York Sun
published stories and letters to the editor which were critical of appellant’s
remarks (27). On August 9, 2007, appellant met with two representatives of
New Visions, and was advised by those representatives that KGIA could not
continue with appellant as the principal, and that she should resign (27-28,
149, 201).
Appellant unsuccessfully attempted to contact Chancellor
Klein, who was unavailable, and appellant instead met twice with Deputy
Mayor Dennis Walcott (13, 28, 149-151, 201-204). Appellant testified that
Mr. Walcott thanked appellant for deciding to resign and advised her that
she would be given an assistant principal position in another school (99,
151). Appellant viewed that as a demotion and objected, and claims that Mr.
Walcott indicated that he would speak to DOE about finding her a
satisfactory position (151-152, 204-205).
11
Appellant testified that Mr. Walcott asked her to submit her
letter of resignation by 8:00 a.m. the following morning, in order for Mayor
Bloomberg to discuss the matter during his radio broadcast later that day
(13, 99, 153, 204-205). Following the second meeting with Mr. Walcott,
appellant met Community Superintendent Rosemary Stuart for dinner, and
Ms. Stuart advised appellant that she should do what was best for the school
(97-98, 100, 153). Thereafter, appellant went to the home of a friend and
drafted a letter of resignation (154). The letter of resignation contained,
inter alia, the following language
“The intolerant and hateful tone [of the attacks] has come to frighten some of the parents and incoming students. I am growing increasingly concerned that these few outsiders will disrupt the community of learning when the academy opens its doors on September 4th. Therefore, I have decided to step aside to give the academy and its dedicated staff a full opportunity to flourish without these unwarranted attacks” (46).
Appellant faxed her letter of resignation to DOE on August 10,
2007 (14, 28, 207). Since that time, appellant has been assigned to work at
DOE headquarters at the office of School and Youth Development (14). She
continues to receive a salary of $120,000, which was the salary she received
while she was interim acting principal of KGIA (28).
The Chancellor’s C-30 regulations govern the process of
selection, assignment, and appointment of principals and assistant principals
(7, 225). The regulations include a list of selection criteria, and pursuant to
12
the current C-30 process, the DOE Office of School Leadership, also known
as the Talent Office, performs an initial screening of applicants who have
applied to an open position on the DOE’s website (273).
The Office of School Leadership selects candidates who meet
certain objective criteria, including possession of the appropriate licenses,
and makes those applications available to the Community Superintendent
(105). The Office of School Leadership additionally submits a report to the
Community Superintendent (7, 106), which assigns a numerical score to the
applicant’s essay, rates the resume and recommends or does not recommend
advancing the applicant to the next stage (273). The report also contains
comments from the Office of School Leadership.
The Community Superintendent may then select the candidates
to proceed to a Level I committee, consisting of teachers, parents, and union
members, which interviews and rates the candidates. The candidates then
may proceed to Level II, where the Community Superintendent considers the
Level I evaluations and may interview the candidates prior to making an
appointment (230).
Pursuant to New York State Education Law Section 2590-
f(1)(e), the Community Superintendent has the authority and duty “to
appoint or reject the principal candidates screened by screening committees
in accordance with procedures and criteria prescribed by chancellor’s
regulations.” Section 2590-i(2)(c) provides that “a candidate approved by a
13
community superintendent may nonetheless, before assuming the position,
be rejected by the chancellor for cause.”
Consequently, the Community Superintendent and the
Chancellor have statutory authority to select the principal. Appellant applied
for the position of permanent principal of KGIA through the DOE website
on October 16th (210-211). On October 18th, the New York Times
published a story under the headline “Principal Won’t Be Rehired” (47).
The story included the following line: “David Cantor, a spokesman for
Schools Chancellor Joel I. Klein, said yesterday that it was clear Ms.
Almontaser, who remains an employee of the Education Department, would
not be placed as principal at the school” (30, 47).
In late October, Community Superintendent Stuart received, on
DOE’s open-hire website system, twenty-two eligible applicants for the
position of principal at KGIA from the Office of School Leadership (110).
Appellant’s application was included among the twenty-two, but the
notation on it was “not recommended” (276).
Ms. Stuart then reviewed the applications that she had received
from the Office of School Leadership, and after reviewing appellant’s
application, Ms. Stuart discussed it with Alice Young of New Visions (111).
She conveyed to Ms. Young her concern that appellant’s attention would be
diverted away from KGIA, because she would have to deal with media
attention, safety, and security concerns and with putting together a new
14
school and circumstances that were complicated. Ms. Stuart testified that
she
“felt at the time . . . that I wanted a leader for the school who would be focused really closely, as much as possible, on the instruction in the building, developing the program, focusing on the students. And I believed that [appellant’s] focus, although she would certainly be concerned with those things and those things would be very important to her, that there would be other factors that would divert her attention and divert the energy of everyone surrounding the school, everyone supporting the school . . . The same kinds of attention that she had been getting prior to school opening around her resignation would still be in play . . . if she were appointed” (119).
Ms. Stuart also testified that the reasons appellant put forward
in her letter of resignation were valid at the time and remained valid (114),
and that the circumstances that surrounded the resignation such as
“unpleasant media attention” would be ongoing if appellant were appointed
as permanent principal (119, 130). Ms. Stuart had received calls from
concerned parents in August, which was also a factor in her evaluating of
appellant’s application. Ms. Stuart also noted that appellant lacked
extensive school-level administrative experience” (120). And Ms. Young
agreed with that assessment (118-119).
Based on Ms. Stuart’s review of the applications, the Office of
School Leadership reports and information obtained from references of the
applicants, Stuart selected four individuals to advance to the Level I
committee. Appellant was not included among the four. Ms. Stuart testified
15
that no one from the Department of Education or the chancellor’s office told
her that she should not advance Almontaser to the Level I committee and
that the decision was her own (119-120, 332).
Thereafter, appellant brought the instant action pursuant to 42
U.S.C. §1983 and New York law, asserting four federal claims and three
state law claims (17-36). Appellant’s federal claims are: a First Amendment
claim that defendants DOE, the City, Mayor Bloomberg, Chancellor Klein
and Deputy Mayor Walcott violated appellant’s right to free speech by
allegedly forcing her to resign on August 10, 2007 as interim-acting
principal of KGIA, allegedly in retaliation for statements she made to a
reporter for the New York Post which were published in the Post on August
6, 2007; a First Amendment claim that all of the defendants violated
appellant’s right to free speech by not selecting appellant to be interviewed
for the position of principal at KGIA, also in alleged retaliation for
appellant’s statements to the Post reporter that were published in the Post on
August 6, 2007; a claim under the Fourteenth Amendment that defendants
City, Klein, Bloomberg and Walcott deprived appellant of a property interest
and a liberty interest by allegedly forcing appellant to resign as interim-
acting principal of KGIA.
Appellant’s state law claims are: a claim under Article I,
Section 8 of the New York State Constitution that defendants retaliated
against her for her exercise of her right to free speech; a breach of contract
16
claim, which appears to be premised on defendants’ (with the exception of
defendant Stuart) alleged breach of a promise to appellant to find her a
position comparable to that of interim-acting principal of KGIA; and a claim
against all defendants for intentional infliction of emotional distress.
ORDER APPEALED FROM
Appellant moved in the United States District Court for the
Southern District of New York for a preliminary injunction pursuant to Rule
65 of the Federal Rules of Civil Procedure, seeking an order: “(a) affording
appellant a full and fair opportunity to be reviewed and considered for the
position of principal at Khalil Gibran International Academy according to
the principles of merit and fitness, as provided in Chancellor’s Regulation C-
30, and including final consideration by a disinterested person, pending the
final determination of this action; and (b) enjoining and restraining
defendants from proceeding pursuant to Chancellor’s Regulation C-30
beyond the Level I Committee or to otherwise select, assign or appoint a
principal at the Khalil Gibran International Academy until appellant is
afforded such consideration.” See Order to Show Cause, dated November
19, 2007. Appellant’s motion was based solely on her two First Amendment
retaliation claims that are identified above.
On December 5, 2007, the United States District Court for the
Southern District of New York (Sidney H. Stein, J.) denied appellant’s
17
application, holding that appellant failed to demonstrate a likelihood of
success on the merits and, therefore, also failed the demonstrate a clear and
substantial showing of a likelihood of success (326). The Court noted that
for purposes of its analysis, it would assume that the threat of irreparable
injury was present, and proceeded to the question of whether appellant could
demonstrate a clear likelihood of success on any of her claims.
The Court then noted, inter alia, that
“[a] plaintiff bringing the First Amendment retaliation claim pursuant to Section 1983 must initially demonstrate by a preponderance of the evidence that, one, her speech was constitutionally protected; two, she suffered an adverse employment decision; and, three, a causal connection exists between her speech and the adverse employment determination against her so that it can be said that her speech was a motivating factor in the determination. If a plaintiff establishes these three factors, the Court must then balance ‘the interests of the employee as a citizen in commenting upon matters of public policy and the interests of the state as an employer in promoting the efficiency of the public services it performs through its employees (citations omitted)” (333).
The Court found that, on the record before it, appellant’s speech
was not protected under the Garcetti doctrine (333-334).2 The Court found
that appellant’s comments to the New York Post were made as a part of her
job, pursuant to her official duties as acting interim principal of KGIA, and
noted that appellant acknowledged that responding to media inquiries was
2 Garcetti v. Ceballos, 547 U.S. 410 (2006).
18
part of her job, both as interim principal of KGIA and as project director
(334). The Court also found that appellant always referred press inquiries to
the DOE press office as a matter of policy, and that the DOE press office
screened and approved the media outlets that desired to interview her.
The Court found that appellant agreed that David Cantor of the
DOE press office expressly told her not to talk about the controversial T-
shirts during the New York Post interview, and to limit the interview to a
discussion of KGIA. Accordingly, the Court found that appellant was
speaking to the New York Post as a part of her job, in her capacity as interim
acting principal of KGIA, pursuant to her official duties, and not as a private
citizen.
The Court held that
“the key issue in Garcetti is not whether an employee’s speech was internal to the place of employment or even whether that speech was directed to the media or the public, nor that the speech may address a matter of public concern. The focal point of any inquiry in regard to Garcetti is whether that speech was made pursuant to an employee’s official duties, within the rule of Garcetti. And here, the plaintiff’s comments to the Post were manifestly made in her official capacity. She, in effect, had been directed by her employer to give that interview, and the employer helped structure in and helped her with the answers to the questions and even was on the line during the interview. The fact that in the course of the interview she may have made comments that arguably fell outside the topics on which she had been directed to speak, for example, by addressing the meaning of the word “intifada,” is beside the point for the purposes of Garcetti. Garcetti itself
19
would be unmanageable if employers and courts were obligated to parse every instance of an employee’s speech to determine what phrases in that speech were made pursuant to an employee’s duties and what phrases or sentences were not.
Similarly, it does not matter that plaintiff’s comments to the Post addressed the matter of public concern. What matters is she made the remarks while acting in her official capacity as interim acting principal of KGIA. For these reasons, plaintiff’s speech is not entitled to First Amendment protection, and she cannot demonstrate a clear likelihood of success on the merits of her First Amendment retaliation claim or, as I said, a likelihood of success” (335).
The District Court additionally found that
“with respect to the First Amendment retaliation claim, plaintiff has not demonstrated a likelihood of success, because her speech is not protected by Garcetti, as I have said. And even if that were not the case, it’s not unreasonable for the defendants to decide that plaintiff’s speech, or at least the consequences of that speech and the resultant public perception of KGIA, were likely to disrupt the ability of the school to function effectively. On the state of this record, that interest narrowly outweighs the plaintiff’s own free speech interests in this instance.”
The instant appeal ensued.
20
RELEVANT STATUTE
42 U.S.C. § 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .
21
SUMMARY OF THE ARGUMENT
The decision of the District Court should be affirmed, because
appellant cannot demonstrate a clear or substantial likelihood of success on
the merits of the case. The record demonstrates that the expression at issue
was made by appellant while she was performing her official duties as the
acting-interim principal of the Khalil Gibran International Academy. In
Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that the
expression of a public employee made as a part of that employee’s job duties
is not protected by the First Amendment. Accordingly, as appellant is
unable to demonstrate that she was speaking in the capacity of a private
citizen, the expression at issue is not Constitutionally protected.
Moreover, even if this Court were to find that appellant’s
statements to the press are found to be protected under Garcetti, that speech
is not protected under the Pickering/Connick balancing test. The
Pickering/Connick test requires reaching a balance between appellant’s
interests, as a citizen, in commenting upon matters of public concern and the
interests of the DOE, as her employer, in promoting the effectiveness and
efficiency of the public services it performs through its employees. The
record demonstrates that the District Court properly found that it was
reasonable for the appellees to conclude that appellant’s expression was
reasonably likely to disrupt the effective functioning of the Khalil Gibran
22
International Academy and provided a valid basis for her removal as
interim-acting principal.
ARGUMENT
To obtain a preliminary injunction, appellant must show: (1)
that she will be irreparably harmed if the injunction is not granted; and (2)
either (a) a likelihood of success on the merits, or (b) sufficiently serious
questions going to the merits of the claims to make them a fair ground of
litigation, and a balance of hardships tipping decidedly in her favor. Forest
City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 149 (2d
Cir. 1999).3
Appellant seeks to enjoin the selection of a principal for KGIA
in accordance with the C-30 process and New York Education Law §2590-
f(1)(e). Because the injunction sought by appellant will stay governmental
action taken in the public interest pursuant to a statutory or regulatory
scheme, appellant must establish a likelihood of success on the merits.
Forest City Daly Hous., Inc., supra, 175 F.3d at 149.
Moreover, because the injunction will alter rather than maintain
the status quo by, inter alia, directing defendants to interview appellant for
the position of KGIA principal, and prohibiting defendant Stuart from
3 See also Time Warner Cable v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir. 1997) (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).
23
exercising the power granted to her by New York Education Law §2590-
f(1)(e) to appoint or reject a candidate for principal screened by the C-30
Level I Committee and prohibiting Chancellor Klein from exercising the
power granted to him by New York Education Law §2590-i(2)(c) to reject a
candidate for principal approved by a Community School District
Superintendent, appellant must show a “clear” or “substantial” likelihood of
success on the merits of her First Amendment claims. See Rodriguez ex rel.
Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (per curiam).
Generally, the standard of review for the grant or denial of a
preliminary injunction is whether the decision constitutes an abuse of
discretion. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). An abuse of
discretion ordinarily consists of applying an erroneous legal standard or
relying upon clearly erroneous findings of fact. Id.; Resolution Trust Corp.
v. Elman, 949 F.2d 624, 626 (2d Cir. 1991). In First Amendment cases, the
Court independently reviews the whole record in order to make sure that the
judgment does not constitute a forbidden intrusion on the field of free
expression. United States v. Cutler, 58 F.3d 825, 833 (2d Cir. 1995) (court
must carefully scrutinize the lower court’s application of the relevant
standards to the facts at hand).
As set forth below, appellant’s motion for a preliminary
injunction was properly denied because she cannot establish a clear
likelihood of success on the merits of her First Amendment claim for two
24
reasons. First, appellant’s statement to the New York Post, which was
published on August 6, 2007, was made as part of her official duties as
interim-acting principal of KGIA and, consequently, under Garcetti v.
Ceballos, 547 U.S. 410 (2006), does not constitute protected speech.
Second, assuming that the Court were to find that Garcetti does not render
appellant’s speech to be unprotected, and that she spoke as a citizen on a
matter of public concern, appellant cannot show a clear likelihood of success
on her argument that her speech is protected under the Pickering/Connick
balancing test.
POINT I
APPELLANT CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS BECAUSE HER SPEECH WAS MADE AS A PART OF HER OFFICIAL DUTIES.
The Supreme Court has made it clear that public employees do
not surrender their First Amendment rights by reason of their employment
and, instead, the First Amendment protects a public employee’s right, in
certain circumstances, to speak as a citizen addressing matters of public
concern. See Pickering v. Board of Education, 391 U.S. 563 (1968);
Connick v. Myers, 461 U.S. 138 (1983). The Supreme Court has also
recognized that “while the First Amendment invests public employees with
certain rights, it does not empower them to ‘constitutionalize the employee
25
grievance.’” Garcetti v. Ceballos, 547 U.S. 410 (2006), citing Connick, 461
U.S. at 154.
This Court has held that a plaintiff bringing a First Amendment
retaliation claim pursuant to 42 U.S.C. § 1983 must demonstrate by a
preponderance of the evidence that his or her speech was constitutionally
protected, and that he or she suffered an adverse employment decision, and
that there is a causal connection between the speech at issue and the adverse
employment determination such that it may be found that the speech was a
motivating factor in the determination. Morris v. Lindau, 196 F.3d 102, 110
(2d Cir. 1999).4
If the plaintiff establishes the above three factors, the court
must then balance the interests of the employee as a citizen in commenting
on matters of public policy against the interest of the governmental entity as
an employer in promoting the efficiency and effectiveness of the public
service it performs through its employees. See Pickering v. Board of
Education, 391 U.S. 563 (1968).
The first relevant inquiry guiding interpretation of the
constitutional protections accorded to public employee speech is whether the
public employee spoke as a citizen on a matter of public concern. Pickering,
supra, 391 U.S. at 568. If the public employee did not, he or she has no First
4 See also Zelnick v. Fashion Institute of Techology, 464 F.3d 217, 225 (2d Cir. 2006); Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005); Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000).
26
Amendment cause of action based upon the employer’s reaction to the
speech. Connick, supra, 461 U.S. at 147.
On the other hand, if the employee spoke as a citizen, there is a
possibility of a First Amendment claim. Under such circumstances, the
question becomes whether the governmental entity had an adequate
justification for treating the public employee differently than any other
member of the general public. Pickering, 391 U.S. at 568. That
“consideration reflects the importance of the relationship between the
speaker’s expression and employment.” Garcetti v. Ceballos, 547 U.S. at
418. Without a significant degree of control over its employees’ words and
actions, a government employer would have little chance to provide public
services efficiently. Connick, supra, 461 U.S. at 143.
In Garcetti v. Ceballos, supra, the Supreme Court held 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.” 547 U.S. at 421. The Supreme Court reasoned that
“government employers, like private employers, need a significant degree of
control over their employees’ words and actions” to operate efficiently and
provide necessary services. Garcetti, 547 U.S. at 418. As the Supreme Court
observed:
Ceballos did not act as a citizen when he went about conducting his daily professional activities,
27
such as supervising attorneys, investigating charges, and preparing filings. In the same way, he did not speak as a citizen by writing a memo that addressed the proper disposition of a criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee.
547 U.S. at 422.
In the instant case, appellant cannot establish a clear likelihood
of success on her First Amendment retaliation claim because her statement
to the New York Post, which was published on August 6, 2007, was not
made as a citizen. Instead, appellant’s speech was made as part of her daily
professional duties as interim-acting principal of KGIA. Appellant’s
comments thus fall squarely within the parameters of employee speech
which Garcetti held is not protected. Consequently, the District Court
properly rejected appellant’s assertion that her statements to the Post were
public words spoken in her capacity as a private citizen speaking on a matter
of public concern, as opposed to speech made pursuant to her official job
duties.
The District Court’s determination is amply supported by the
facts. The record demonstrates that the August 5, 2007 interview of
appellant, which resulted in the August 6, 2007 Post article, was only one of
a number of interviews that appellant had given to members of the news
media, in connection with her duties either as Project Director or interim-
acting principal of KGIA. The record shows that before August 5, 2007,
28
appellant was interviewed by members of the news media in connection with
her work at KGIA on at least eight occasions.
Appellant testified that shortly after the first interview, she
attended a meeting with members of the DOE press office and others for the
purpose of formulating strategy in handling media inquiries about KGIA.
Appellant also testified that for most of the interviews, she spoke to either
Melody Meyer or David Cantor of the DOE press office to coordinate the
interviews. On most of those occasions, either Mr. Cantor or Ms. Meyer
would prepare her for, or provide her with an overview of, the interview and
either Mr. Cantor or Ms. Meyer would be present or on the telephone line
while the interview was being conducted. Indeed, the DOE press office
screened and approved the media outlets that interviewed appellant.
Thus, it was clearly part of appellant’s job duties, both before
and on August 5, 2007, to be interviewed by members of the news media
about KGIA or KGIA-related issues, and the statements that she made to the
media, both before and on August 5, 2007, were made in her capacity as
either project director or interim-acting principal of KGIA. Appellant
interviewed with the New York Post on August 5, 2007, because that was
part of what she was employed to do. Garcetti, 547 U.S. at 421. In fact,
appellant testified that she “had no choice but to work with Mr. Cantor in
29
preparing for the interview” (192), and that she was “expected to participate
in the Post interview ” (253).5
Appellant made her statements on August 5, 2007 to the Post,
after having been prepared for that interview by several conversations with
Ms. Meyer and Mr. Cantor. Indeed, Ms. Meyer was on the telephone line
during that interview with the Post reporter. Clearly, appellant spoke in her
capacity as interim-acting principal of KGIA, and her attempt to portray her
statements to the Post as having been made in her capacity as a “private
citizen” was properly rejected by the Court below.
Appellant attempts to evade Garcetti by asserting that the
speech at issue was made when she assumed the role of a private citizen.
Appellant, however, cannot escape numerous undisputed facts about the
speech at issue, which formed the basis of the District Court’s decision.
5 Appellant curiously asserts that the “DOE may have had the right to require that she speak about KGIA, but it had no right to compel her to submit to an interview about her connection to the T-shirts or the intifada (citation omitted)” (Brief for Plaintiff-Appellant at p. 19). In fact, DOE did not compel appellant to discuss the T-shirts or the term “intifada,” nor did it claim the right to do so, and the record demonstrates instead that DOE specifically instructed appellant not to discuss those topics, which in any event comprised only one of the five questions posed by the Post (253, 329).
Appellant also asserts that the “Constitution protects her right to refuse to talk about issues unrelated to her job as much as it protects her right to talk about them” (Brief for Plaintiff-Appellant at p. 19). Nonetheless, the record demonstrates that appellant apparently did not believe at the time that the issue concerning the intifada T-shits was unrelated to her job, because appellant answered the Post reporter’s question about the T-shirt in her e-mail response, specifically commenting about her role as a public school principal (40).
30
Each of those facts demonstrate that appellant spoke in her official capacity,
as a part of her job, and not as a private citizen.
The reporter from the Post directly contacted the DOE press
office, and not appellant, by e-mail with five written questions (40-41, 147).
Appellant does not deny that four of the five written questions supplied by
the Post reporter specifically pertained to the Academy, its students, and the
school’s board of advisors; indeed, she cannot (40-41).6 Appellant, in effect,
was directed by DOE to give the interview (253), which she acknowledges
in her brief, asserting that the DOE press office “urged her to do the
interview” (Brief for Plaintiff-Appellant at p. 6). Appellant further admits
that the DOE press office structured the interview, and helped her with the
answers to the questions, including specifically telling her “not to talk about
the T-shirts” (Brief for Plaintiff-Appellant at p. 6).
Appellant also admits that the DOE press office fully
participated in the August 5, 2007 telephone interview, and that Ms. Meyer
was on the line for the duration of the call, and that Ms. Meyer even
“interjected” at one point during the interview (Brief for Plaintiff-Appellant
at p. 7). Appellant now asserts that Ms. Meyer did not “protest or say
anything” when appellant was asked the meaning of the word “intifada”
6 Moreover, a simple review of the first question, and appellant’s proposed response, demonstrated that even the first question pertains to the Academy, because it concerns appellant’s connection to the intifada T-shirts, as a public school principal (see 40).
31
(Brief for Plaintiff-Appellant at p. 7). Nonetheless, the issue before this
Court is whether appellant was speaking to the Post in her official capacity
as part of her job duties, and whether or not Ms. Meyer “protested” is not
relevant to a consideration of that question.
Appellant appears to argue that because she made comments
during the interview that arguably fell outside of the topics on which she was
directed to speak, she somehow was acting in the capacity of a private
citizen. That claim, however, is beside the point for purposes of Garcetti,
where the focus is on whether or not appellant made the remarks while
performing her duties as interim-acting principal of KGIA. As the Supreme
Court noted in Garcetti, the significant point is that the speech occurred
pursuant to appellant’s official duties:
“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties that employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned of created (citation omitted).” 547 U.S. at 421-422.
Of course, appellant did not claim to be speaking as a private
citizen at any time during the August 5, 2007 interview, or at any time
immediately thereafter. Appellant did not indicate in any way that she was
speaking in the capacity of a private citizen at any time during the August 5th
interview, nor did appellant make a disclaimer at any point regarding
whether she was not representing the DOE. Indeed, it appears that appellant
32
did not even make the claim that she was speaking as a private citizen in her
Complaint.
Appellant makes the insupportable assertion that “[t]he District
Court interpreted Garcetti to mean that if a public employee’s duties include
speaking to the media, then nothing that employee says to the media is
protected by the First Amendment” (Brief for Plaintiff-Appellant at p. 19).
That assertion, however, goes well beyond what the District Court actually
held. Of course, the District Court reached no such conclusion, and that
question certainly was not even before the court below. Instead, the District
Court properly followed Garcetti, where the Supreme Court held that when
the public employee goes to work and performs the tasks he or she is paid to
perform, they are acting not as a private citizen but instead as a government
employee. 547 U.S. at 421.
Appellant also makes the similarly insupportable assertion that
the task that she was paid to perform as a spokesperson was to speak about
KGIA, but that she was not paid by DOE to speak about other matters and,
consequently, when she spoke about “intifada” and the T-shirts, that speech
was made as a private citizen (Brief for Plaintiff-Appellant at p. 21).
Appellant appears, however, to be asserting that the controlling factor
regarding whether a public employee is speaking as a private citizen is not
whether the speaker is carrying out their job and performing the task for
which they are being paid, but is instead dependant upon the questioner or
33
the question asked. In any event, the speech at issue was made pursuant to
appellant’s official job duties.
Appellant then complains that the District Court should have
more “carefully parse[d]” the speech to determine whether it was protected
because of “what was said, to whom, and the circumstances under which it
was said, followed by a close examination of the nature of the employee’s
job responsibilities” (Brief for Plaintiff-Appellant at p. 21-22). Nonetheless,
it is respectfully submitted that the District Court did precisely that, very
carefully setting forth the relevant facts and properly applying the law.
The cases relied upon by appellant do not compel a different
conclusion. Appellant suggests that Garcetti somehow compels a more
detailed analysis to determine whether the individual spoke as a private
citizen than that which was undertaken by the District Court here.
Nonetheless, the cases cited by appellant do not hold that Garcetti requires a
different type of analysis than the one performed here by the District Court
and, instead, those cases employed a similar analysis to that used by the
District Court below: they first examined whether the speech at issue fell
within the Garcetti criteria (whether it was made as part of the speaker’s
official duties), then for the separate instances when the speech was not
made within the speaker’s official duties (and thus the speaker was speaking
as a private citizen), the cases applied a Pickering/Connick analysis, just as
the District Court below had done.
34
In contrast to the instant case, where appellant’s speech was
clearly made pursuant to her official duties and, consequently, is not
constitutionally protected, Brammer-Hoelter v. Twin Peaks Charter
Academy, 492 F.3d 1192 (10th Cir. 2007), largely involved a determination
of whether the subject speech pertained to matters of public concern after it
has been determined whether the employee was speaking as a private
citizen. The Court of Appeals for the Tenth Circuit began its analysis with
the recognition that when an employee engages in speech during the course
of performing an official duty and the speech reasonably contributes to or
facilitates the employee’s performance of the official duty, that speech is
made pursuant to employee’s official duties. Id. at 1203. The Tenth Circuit
then determined that the plaintiffs’ speech regarding twelve matters was not
made pursuant to the plaintiff’s official duties and were not constitutionally
protected. Id. at 1204-1205. The Court then considered whether the twelve
matters were of public concern, and found that eight of twelve matters
discussed by the plaintiffs were not matters of public concern because they
are internal in scope and personal in nature. Id. at 1206. With regard to the
remaining four matters, which the Court found to be matters of public
concern, the Court engaged in Pickering analysis.
Similarly, in Casey v. West Las Vegas Independent School
District, 473 F.3d 1323 (10th Cir. 2007), the plaintiff conceded that certain
statements at issue were made within the scope of her duties and are no
35
longer actionable after Garcetti, and the Tenth Circuit found that other
statements were similarly barred, leading the Court to conclude that because
the plaintiff conceded that her job duties required her to report to federal
authorities and that she did so, her speech “is more akin to that of a senior
executive acting pursuant to official duties than to that of an ordinary citizen
speaking on his or her own time” and held that the plaintiff “cannot meet her
burden here and avoid the heavy barrier erected by the Supreme Court in
Garcetti to the satisfaction of Pickering’s first prong.” Id. at 1331. The
Tenth Circuit also found that certain of the plaintiff’s conduct fell
sufficiently outside the scope of her duties to survive Garcetti, permitting the
Court to undertake Pickering analysis. Id. at 1332. In Lindsey v. City of
Orrick, 491 F.3d 892 (8th Cir. 2007), the Court of Appeals for the Eighth
Circuit acknowledged that “[a]fter Garcetti, a public employee does not
speak as a citizen if he speaks pursuant to his job duties.” Id. at 898.
Finding that the plaintiff spoke as a citizen and on a matter of public
concern, the Court employed the Pickering balancing test. Id. at 900.
Thus, the analysis employed by the Eighth Circuit and the
Tenth Circuit, which appellant in the instant case claims the District Court
should have engaged in here, was in fact conducted by the District Court
when it considered the Pickering/Connick doctrine, which presumes that
plaintiffs speak as private citizens. Appellant mischaracterizes the District
Court’s analysis of the Garcetti issue, as the District Court specifically
36
explained that it relied upon the findings of fact, which the court recited in
painstaking detail, to support the conclusion that appellant’s speech during
the Post interview was made pursuant to her official duties (326-332, 334).
In effect, appellant impermissibly seeks to add an additional
layer of analysis to Garcetti. Notably, in none of the cases relied upon by
appellant does it appear that the constitutionally protected speech and the
unprotected speech occur during the same expression, which appellant
claims is the case in this matter.
Speech expressed pursuant to ordinary job duties neither
represents nor advances the unquestioned goals of the First Amendment and,
as discussed below, blanketing such speech with constitutional protection
was not a driving concern in the removal of the barriers depriving public
employees of the most basic First Amendment protection.
Public employee speech expressed strictly pursuant to the
duties of employment should not be afforded First Amendment protection,
and the Supreme Court has never held that purely job-required speech is
constitutionally protected. In fact, at no time since Pickering has the
Supreme Court held that job-required speech should be afforded First
Amendment protection.7
7 See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) (reiterating Pickering test for determining whether speech of a government employee is constitutionally protected and finding protected a public school teacher’s communication with a radio station regarding the school’s dress code for teachers); Givhan v. Western Line Consolidated
37
Consequently, as the District Court correctly determined, under
Garcetti v. Ceballos, 547 U.S. 410 (2006), appellant’s job-required statement
does not constitute protected speech. Accordingly, as appellant’s speech is
not protected by the First Amendment, she cannot establish a clear
likelihood of success on the merits. For that reason, the decision of the
District Court should be affirmed.
POINT II
APPELLANT ADDITIONALLY CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS, BECAUSE EVEN IF APPELLANT’S STATEMENTS TO THE PRESS ARE FOUND TO BE PROTECTED UNDER GARCETTI, HER SPEECH IS NOT PROTECTED UNDER THE PICKERING/CONNICK TEST.
Even if one were to assume that Garcetti does not render
appellant’s speech unprotected, and that she somehow spoke as a citizen on
a matter of public concern, which the District Court properly found not to be
the case, appellant still cannot show a clear likelihood of success because her
School District, 439 U.S. 410 (1979) (finding constitutionally protected a teacher’s personal opinions regarding the school district’s desegregation efforts expressed to a supervisor); United States v. National Treasury Emp1oyees Union, 513 U.S. 454 (1995) (plaintiffs were found to have spoken in their capacity as citizens and the speeches were found to lack relevance to their employment); City of San Diego v. Roe, 543 U.S. 77 (2004); Perry v. Sindermann, 408 U.S. 593 (1972).
38
speech is not protected under the Pickering/Connick test. See Reuland v.
Hynes, 460 F.3d 409, 415 (2d Cir. 2006).
A. The Free Speech Clause Of The First Amendment Guarantees Citizens Access To An Open Forum For Public Debate.
On numerous occasions, the Supreme Court has considered the
fundamental purposes of the First Amendment. See, e.g. Boos v. Barry, 485
U.S. 312, 322 (1989) (“As a general matter, we have indicated that in public
debate our own citizens must tolerate insulting, and even outrageous, speech
in order to provide ‘adequate “breathing space’ to the freedoms protected by
the First Amendment”); Pacific Gas and Elec. Co. v. Public Utilities Com’n
of California, 475 U.S. 1, 8 (1986) (“By protecting those who wish to enter
the marketplace of ideas from government attack, the First Amendment
protects the public’s interest in receiving information.”).8
The underlying purpose of the First Amendment has been
frequently explained:
The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of
8 See also Mills v. State of Ala., 384 U.S. 214, 218 (1966) (“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”); Red Lion Broad-casting Co. v. F.C.C., 395 U.S. 367, 390 (1969) (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.”).
39
subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.
Thornhill v. State of Alabama, 310 U.S. 88, 101-02 (1940) (footnotes
omitted). Justice Brandeis discussed the Founding Fathers’ motivations
underlying the First Amendment:
Those who won our independence believed . . . that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Whitney v. California, 274 U.S. 357, 375-76 (1927) (J. Brandeis,
concurring).
Thus, when considering the boundaries of the protection offered
by the First Amendment and, in particular, a determination of whether these
boundaries should encompass speech expressed pursuant to ordinary job
duties, the fundamental intent should be given due consideration.
40
B. Pickering And Connick Are Inextricably Intertwined With The Fundamental Purposes Of The Free Speech Clause.
Throughout much of the nation’s history, public employees, by
virtue of their public employment, had very little First Amendment
protection. The Supreme Court has noted that:
For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment -- including those which restricted the exercise of constitutional rights. . . . The Court cast new light on the matter in a series of cases arising from the widespread efforts in the 1950s and early 1960s to require public employees, particularly teachers, to swear oaths of loyalty to the state and reveal the groups with which they associated.
Connick v. Myers, 461 U.S. 138, 143-44 (1983). Through several cases, the
Supreme Court expanded constitutional protection to public employees by
invalidating statutes that “sought to suppress the rights of public employees
to participate in public affairs.” Id. at 144-45. The Supreme Court’s point
of view with regard to statutory infringements was consistent with the main
purpose of the First Amendment: “to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the people.”
Roth v. United States, 354 U.S. 476, 484 (1957).
The movement to recognize and define the extent of First
Amendment protection for public employees was continued in Pickering v.
Board of Education, 391 U.S. 563 (1968), which involved the claim by a
41
public school teacher that he had been discharged based solely on his public
criticisms of the school board in violation of the free speech clause of the
First Amendment. The Supreme Court held that such speech by public
employees is constitutionally protected, but that protection was carefully
limited and, in large part, tied to the underlying purposes of the First
Amendment.
In Pickering, the Supreme Court established a two-part
balancing test for determining whether speech is constitutionally protected.
Under this test, a court must first decide whether the expression constitutes
speech on “a matter of public concern.” Pickering, 391 U.S. at 568;
Connick, supra, 461 U.S. at 146; Rankin v. McPherson, 483 U.S. 378, 384
(1987). If the speech addresses a matter of public concern, the court then
balances “the interests of the [employee] as a citizen, on commenting upon
matters of public concern and the interest of the State, as employer, in
promoting the efficiency of the public service it performs through its
employees.” Pickering, 391 U.S. at 568; Connick, supra, 461 U.S. at 150.
When a plaintiff’s speech on a matter of public concern is
sufficiently disruptive to government operations so that the disruption
outweighs the value of the speech, a public employer may take an adverse
employment action against the employee. Blackman v. New York City
Transit Authority, 491 F.3d 95 (2d Cir. 2007); Sheppard v. Beerman, 317
F.3d 351, 355 (2d Cir. 2003).
42
Even if there is no actual disruption, the government employer
may act to prevent potential disruption if the employer reasonably believes
that the employee’s speech threatens to interfere with government
operations. Waters v. Churchill, 511 U.S. 661, 672-74 (1994); Jeffries v.
Harleston, 52 F.3d 9, 12 (2d Cir.), cert. denied, 516 U.S. 862 (1995).
Indeed, “the extent of the injury caused by the employee’s speech need not
be actual; rather, the government’s burden is just to show that the speech
threatened to interfere with government operations.” Jeffries, supra, 52 F.3d
at 12 (citing Waters, 511 U.S. at 673-74). Moreover, the Supreme Court has
granted “substantial weight to government employers’ reasonable
predictions of disruption, even when the speech involved is on a matter of
public concern.” Waters, 511 US at 673; see Jeffries, 52 F.3d at 12.
The holding in Pickering was carefully limited and did not
espouse First Amendment protection for purely job-required speech. The
Supreme Court made it clear that a public employee could not be
“compelled to relinquish the First Amendment rights they would otherwise
enjoy as citizens to comment on matters of public concern.” Mr. Pickering’s
First Amendment claim, however, could not be resolved on the basis of this
principle alone because of the significant interests that affect the
government’s role as employer:
it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the
43
speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
391 U.S. at 568.9 Consequently, the contemplated balancing of interests
occurs where the employee engages in citizen speech on a matter of public
concern, requiring the weighing of those interests against the employer’s
interests in workplace efficiency and harmony.
Although the Supreme Court declined to articulate a single test
by which to evaluate public employees’ criticism of their employers, it
discussed “some of the general lines along which an analysis of the
controlling interests should run.” Id. at 569. The Court emphasized the
relationship between First Amendment protection for public employees and
the extent to which the subject speech contributed to the public debate:
More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern. . . . On such a question, free and open debate is vital to informed decision-making by the electorate.” Id. at 571-72.
[Where a public school teacher’s erroneous and critical statements about a matter of public concern have not been shown to have had a disruptive effect in the workplace], “we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to the public
9 See Connick, supra, 461 U.S. at 151 (the Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public).
44
debate is not significantly greater than its interest in limiting a similar contribution to any member of the general public.” Id. at 573.
“The public interest in having free and unhindered debate on matters of public importance -- the core value of the Free Speech Clause of the First Amendment -- is so great” that a public official may recover damages for defamatory statements only if they are made with knowledge of their falsity or reckless disregard for their truth or falsity. Ibid.
“In a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.” Id. at 574.
“In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” Ibid.
Thus, the Supreme Court did not find Mr. Pickering’s speech to
be constitutionally protected simply because that speech pertained to a
matter of public concern. Instead, the Court identified as significant factors
the relationship between the speech and the speaker’s employment, and the
speaker’s intent to be treated as a citizen -- and not as an employee.
Consequently, Pickering is pivotal because its focus on Mr.
Pickering’s motivation to participate in the public debate “as a citizen”
continues to resonate today. Indeed, the term “Pickering/Connick test” has
45
become engrained in the legal vernacular of First Amendment jurisprudence
in the public employment context.
C. Under Connick, First Amendment Protection Requires Speech To Be Expressed “As A Citizen.”
In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court
noted that Pickering had identified the competing interests at stake. On one
side, there is the interest of the government to promote the efficiency of the
public services performed through its employees, and on the other side, the
interest of the employee, as a citizen, in commenting upon matters of public
concern. Against this backdrop, the Court was “returning to this problem . .
. [to] consider whether the First and Fourteenth Amendments prevent the
discharge of a state employee for circulating a questionnaire concerning
internal office affairs.”
The plaintiff in Connick was a prosecutor employed by the
New Orleans District Attorney’s Office who learned that she was to be
transferred to a different department and who expressed her opposition to
several supervisors, including the district attorney. The plaintiff
subsequently prepared and circulated a questionnaire designed to obtain the
views of her fellow prosecutors on a number of topics, including the transfer
policy, office morale, level of confidence in the supervisors and whether
anyone had felt pressured to work in political campaigns. Id. at 141. Upon
learning about the questionnaire and being told that it had created a “mini-
46
insurrection”, the district attorney informed the plaintiff that she was being
terminated because she had refused to accept the transfer, and that the
questionnaire was considered an act of insubordination.
In her § 1983 action, the plaintiff alleged that her termination
was unlawful because she had exercised her constitutionally-protected right
of free speech. The district court and the Fifth Circuit Court of Appeals
agreed, finding that the questionnaire involved matters of public concern,
and that it had not been clearly demonstrated that the questionnaire had
substantially interfered with the operation of the district attorney’s office.
Id. at 142. Upon review, the Supreme Court reiterated the relevant inquiry
as seeking a balance between the interests of the employee, as a citizen, in
commenting upon matters of public concern and the interests of the State, as
an employer, in promoting the efficiency of the public services it performs
through its employees.
Before determining whether any part of the questionnaire
involved constitutionally protected speech, the Supreme Court discussed the
analysis in Pickering, noting that the emphasis that a public employee has a
right, “as a citizen”, to comment upon matters of public concern, was not
accidental. Id. at 143. The Court explained that this critical language
“reflects both the historical evolvement of the rights of public employees,
and the common sense realization that government offices could not
47
function if every employment decision became a constitutional matter.”
Ibid.
The Court then articulated the following standard for
determining constitutional protection for public employee speech:
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, absent the most unusual circumstances, 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.
Id. at 147. The Court noted further that its “responsibility is to ensure that
citizens are not deprived of fundamental rights by virtue of working for the
government . . . .” Ibid. While the Court did not explicitly find that the
questionnaire involved citizen speech, it may not be disputed that the
questionnaire was not prepared pursuant to plaintiff’s prosecutorial duties.10
The Court, however, did review the questionnaire to determine whether any
part of it involved a matter of public concern, and found that the portion
regarding the pressure to participate in political campaigns was the only part
of the questionnaire that was constitutionally protected. Id. at 149.
Thus, the essence of this finding was that with respect to this
part of the questionnaire, the plaintiff had spoken as a citizen upon a matter
of public concern. The Court then balanced the competing interests and held
10 In direct contrast, Ms. Almontaser’s speech indisputably occurred in accordance with her normal duties and, therefore, is devoid of any citizen speech.
48
that “the limited First Amendment interest involved here does not require
that Connick tolerate action he reasonably believed would disrupt the office,
undermine his authority, and destroy close working relationships.” Id. at
154.
The relationship between the underlying purposes of the First
Amendment and the incorporation of a citizen speech element in the test for
constitutional protection was further addressed in the Supreme Court’s
concluding remarks:
Although today the balance is struck for the government, this is no defeat for the First Amendment. For it would be a Pyrrhic victory for the great principles of free expression if the Amendment’s safeguarding of a public employee’s right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here.
Id. at 154.
Accordingly, in the instant case, an application of the
Pickering/Connick test requires reaching a balance between appellant’s
interests, as a citizen, in commenting upon matters of public concern and the
interests of the DOE, as an employer, in promoting the effectiveness and
efficiency of the public services it performs through its employees.
49
D. The Factual Record In The Instant Case Demonstrates That Defendants Reasonably Determined That Appellant’s Statements Threatened To Interfere With The Operation Of The School.
Even if one were to assume that Garcetti does not render
appellant’s speech unprotected, and that appellant’s statements that were
published in the Post on August 6, 2007 addressed a matter of public
concern, appellant cannot establish a clear likelihood of success on her claim
that her speech is protected under the Pickering/Connick test. That is
because the record demonstrates that appellant’s statements caused or could
potentially cause disruption, and threatened to interfere with the operation of
the school.
As this Court recognized in Melzer v. Board of Education, 336
F.3d 185, 199 (2d Cir. 2003), the disruption caused by parents of students at
a public school in reaction to speech by a public school teacher or official is
properly considered in the Pickering/Connick test:
“Parents are not outsiders seeking to heckle Melzer into silence, rather they are participants in public education, without whose cooperation public education as a practical matter cannot function. Any disruption created by parents can be fairly characterized as internal disruption to the operation of the school, a factor which may be accounted for in the balancing test and which may outweigh a public employee's rights. In consequence, we do not perceive an impermissible heckler's veto implicated in this case.”
Melzer, 336 F.3d at 199.
50
Appellant argues that in the present case, there is no evidence
that parents of KGIA students had a negative reaction to her statements to
the Post. However, that statement is plainly contradicted by appellant’s
resignation letter, where she stated, in referring to the negative reaction to
her statements: “their intolerant and hateful tone has come to frighten some
of the parents and incoming students” (322). Certainly, if the parents of
incoming KGIA students and the students themselves were frightened, upset,
or alarmed by appellant’s statements to the Post or by the negative reaction
to appellant’s statements, that must be taken into account in the
Pickering/Connick test and would outweigh any interest appellant has in
making her statements to the Post.
The District Court initially considered as a matter of law
whether the speech at issue relates to a matter of public concern, and
concluded that appellant’s comments did, in fact, relate to a matter of public
concern (336). Thereafter, the court below noted that the alleged adverse
action nevertheless may not violate the employee’s rights if the employee’s
speech is reasonably likely to disrupt the effective functioning of the office
and the employee is fired to prevent this disruption (336). Reuland v.
Hynes, supra. See also Sheppard v. Beerman, supra, 317 F.3d at 355.
The District Court found that it was reasonable for the appellees
to conclude that appellant’s speech was reasonably likely to disrupt the
effective functioning of KGIA and provided a valid basis for her removal as
51
interim-acting principal and for appellant not going further in the selection
process (336). The court below noted that appellant’s “resignation letter
specifically referred to the intolerant and hateful tone of the attacks in the
media and the facts that those attacks have come ‘to frighten some of the
parents and incoming students’” (336). The District Court also noted that
appellant also wrote that she had “grown increasingly concerned” that
outsiders would “disrupt the community of learning” when KGIA began
classes (336).
The District Court took into account the August 2, 2007 e-mail
from Ms. Stuart, expressing her concern that the school opening might be
disrupted by protests (223). The Court also found support in the record for a
finding that appellant had considered that immediately following her
resignation, her application for permanent principal might have a
destabilizing effect on KGIA (336).
The District Court also found that the record demonstrates that
KGIA had become a “lightning rod for negative media attention and that
certain groups and individuals had been vocal in objecting to the school,”
noting that “[t]he issue is not whether it was justified or not, but it was a
fact” (336). On the basis of all of the above factors, and particularly “the
negative coverage that followed the August 5 interview,” the District Court
concluded that it was reasonable for the appellees to conclude that the
52
reaction to appellant’s speech, including its portrayal in the Post, was likely
to disrupt the function in KGIA (336).
This Court has noted that “where a government employee’s job
quintessentially involves public contact, the government may take into
account the public’s perception of that employee’s speech in determining
whether those acts are disruptive to the government’s operations.” Locurto
v. Giuliani, 447 F.3d 159, 179 (2d Cir. 2006). The District Court found that
the position of interim-acting principal of KGIA “could essentially involve
public contact” and noted that appellant viewed her role as principal as
including responding to press inquiries related to KGIA. Consequently, the
court below found that assuming there was an adverse employment action
taken by appellees, that action was based on a reasonable concern over the
public perception of appellant’s views (336).
The District Court noted that even where it is reasonable for the
government to have found that the speech was likely to cause disruption, the
court must then balance the employee’s interest in expressing herself against
any injury the speech could cause to the interest of the government, as an
employer, in promoting the efficiency of the public services it performs
through its employees. Locurto, supra, 447 F.3d at 172, 173.
The District Court found that in the August 5, 2007 Post
interview, appellant “undoubtedly had an interest in defending the mission
of KGIA and, in addition, in defending [her] own reputation which had
53
come under attack” and additionally noted that the appellees “have not
provided any concrete evidence to suggest that the negative attention
focused on KGIA in August and September would have been any greater
had Almontaser not resigned and had remained in her post when the school
began holding classes” (337). Nonetheless, the court below correctly noted
that,
“as the Supreme Court emphasized in Garcetti, ‘employers have heightened interest in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment and promote the employer’s mission” (337).
Thus the District Court correctly held that if it were to reach the
issue, it would conclude that the heightened interest of the appellees in
managing the public perception of KGIA outweighs appellant’s free speech
interests (337). The Court noted that DOE continues to have a heightened
interest in managing the public perception of KGIA, and it was not
unreasonable for DOE to conclude that if appellant were to be deemed a
permanent principal at KGIA, disruption to the function of the school would
follow (337).
Consequently, the District Court concluded that with respect to
the First Amendment retaliation claim, appellant had not demonstrated a
likelihood of success because her speech is not protected by Garcetti, and
54
“even if that were not the case, it’s not unreasonable for the defendants to decide that plaintiff’s speech, or at least the consequences of that speech and the resultant public perception of KGIA, were likely to disrupt the ability of the school to function effectively” (337).
For all of the above reasons, appellant cannot establish a clear
likelihood of success on the merits of her claim that she engaged in speech
protected by the First Amendment.
POINT III
APPELLANT CANNOT SHOW THAT SHE WILL SUFFER IRREPARABLE HARM IF THE INJUNCTION IS NOT GRANTED.
Appellant alleges that defendants violated her First Amendment
right of free speech by forcing her to resign as interim-acting principal of
KGIA on August 10, 2007 and by not selecting her to be interviewed by the
Level I Committee for the KGIA principal position, both allegedly in
retaliation for her statements that were published in the New York Post on
August 6, 2007. Nonetheless, appellant offers no evidence in satisfaction of
her obligation to demonstrate that she will suffer irreparable harm.11
11 The City recognizes that the decision of the District Court did not reach a determination of whether appellant can demonstrate irreparable injury because the court below found that appellant cannot demonstrate a clear likelihood of success. Nonetheless, the District Court presumed for the purpose of its analysis that the threat of irreparable injury is present, and proceeded to the question of whether appellant can demonstrate a clear likelihood of success (333). Accordingly, the City has briefly addressed the issue of irreparable harm.
55
The Supreme Court has observed that “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
However, appellant is still required to present evidence that she, in fact, has
sustained a loss of her First Amendment freedoms, and will suffer another
loss of such freedoms if the injunction is not granted.
This Court has held that in a First Amendment retaliation action
by a public employee, the employee must “allege a clearcut infringement of
first amendment rights, which, absent preliminary injunctive relief, either
has occurred or will occur in the future.” American Postal Workers Union v.
United States Postal Service, 766 F.2d 715, 722 (2d Cir. 1985). A showing
of theoretical or conjectural harm is insufficient. See Latino Officers
Association v. Safir, 170 F.3d 167, 171 (2d Cir. 1999).
Moreover, appellant “must establish a causal link between the
injunction sought and the alleged injury, that is, the plaintiff must
demonstrate that the injunction will prevent the feared deprivation of free
Similarly, the District Court did not reach a determination of whether appellant is entitled to impartial consideration of her application for the position of principal, and for that reason, appellant’s argument is beyond the scope of the instant appeal. Appellant’s representation that “[t]he court below rejected plaintiff’s argument that if she prevails on her First Amendment argument, her application for the principal’s position must be made by an impartial decision-maker” (Brief for Plaintiff-Appellant at p. 15) is incorrect. As the District Court did not consider that issue, it is improperly raised by appellant and should be disregarded by this Court.
56
speech rights.” Bronx Household of Faith v. Bd. of Education., 331 F.3d
342, 350 (2d Cir. 2003).
Here, appellant cannot establish irreparable harm for two
reasons. First, she will not be harmed irreparably if an injunction is not
granted and someone other than herself is selected as the principal of KGIA.
Appellant will not have been prevented from being considered for a
principal position at every DOE school - - only KGIA. Appellant is free to
apply for any principal position for which she possesses the minimum
qualifications. She has chosen not do so because, in her own words, “I don’t
have an interest in applying for any other” principal position (156).
However, merely not being selected for one principal position does not
constitute irreparable harm.
Appellant also cannot establish irreparable harm because she
cannot establish that a clear violation of her First Amendment right to free
speech has occurred, or that it will occur. That is because appellant cannot
demonstrate that her statements to the New York Post are protected by the
First Amendment, or that defendants forced her to resign as interim-acting
principal and did not select her for the principal position at KGIA because of
those statements.
Accordingly, for all of the reasons set forth above, the decision
of the District Court should be affirmed, with costs.
57
CONCLUSION
THE DECISION AND ORDER APPEALED FROM SHOULD BE AFFIRMED, WITH COSTS.
Respectfully submitted,
MICHAEL A. CARDOZO, Corporation Counsel
of the City of New York, 100 Church Street, Room 6-194
New York, N.Y. 10007 By: __________________________ Drake A. Colley (DC6397) Assistant Corporation Counsel EDWARD F.X. HART, DRAKE A. COLLEY of Counsel. January 7, 2008
CERTIFICATION OF WORD COUNT
I certify that this brief, exclusive of the Table of Contents and Table of Authorities, contains fewer than 14,000 words. _____________________________ Drake A. Colley
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................. iii
PRELIMINARY STATEMENT ............................................................................ 1
JURISDICTIONAL STATEMENT ....................................................................... 2
ISSUE PRESENTED ............................................................................................. 3
STATEMENT OF FACTS..................................................................................... 3
ORDER APPEALED FROM............................................................................... 16
RELEVANT STATUTE ...................................................................................... 20
SUMMARY OF THE ARGUMENT ................................................................... 21
ARGUMENT....................................................................................................... 22
POINT I
APPELLANT CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS BECAUSE HER SPEECH WAS MADE AS A PART OF HER OFFICIAL DUTIES. .......................................................................................... 24
POINT II
APPELLANT ADDITIONALLY CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS, BECAUSE EVEN IF APPELLANT’S STATEMENTS TO THE PRESS ARE FOUND TO BE PROTECTED UNDER GARCETTI, HER SPEECH IS NOT PROTECTED UNDER THE PICKERING/CONNICK TEST. ...................................................... 37
ii
POINT III
APPELLANT CANNOT SHOW THAT SHE WILL SUFFER IRREPARABLE HARM IF THE INJUNCTION IS NOT GRANTED. ..................................................................................... 54
CONCLUSION.................................................................................................... 57
iii
TABLE OF AUTHORITIES
FEDERAL CASES American Postal Workers Union v. United States Postal Service,
766 F.2d 715 (2d Cir. 1985) ............................................................................ 55 Blackman v. New York City Transit Authority,
491 F.3d 95 (2d Cir. 2007) .............................................................................. 41 Boos v. Barry,
485 U.S. 312 (1989) ........................................................................................ 38 Brammer-Hoelter v. Twin Peaks Charter Academy,
492 F.3d 1192 (10th Cir. 2007) ....................................................................... 34 Bronx Household of Faith v. Bd. of Education.,
331 F.3d 342 (2d Cir. 2003) ............................................................................ 56 Casey v. West Las Vegas Independent School District,
473 F.3d 1323 (10th Cir. 2007) ................................................................. 34, 35 City of San Diego v. Roe,
543 U.S. 77 (2004) .......................................................................................... 37 Connick v. Myers,
461 U.S. 138 (1983) ................................................................................. passim Diesel v. Town of Lewisboro,
232 F.3d 92 (2d Cir. 2000) .............................................................................. 25 Elrod v. Burns,
427 U.S. 347 (1976) ........................................................................................ 55 Forest City Daly Hous., Inc. v. Town of North Hempstead,
175 F.3d 144 (2d Cir. 1999) ............................................................................ 22 Garcetti v. Ceballos,
547 U.S. 410 (2006) ................................................................................. passim Givhan v. Western Line Consolidated School District,
439 U.S. 410 (1979) ........................................................................................ 36
iv
Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005) ............................................................................ 25
Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.,
596 F.2d 70 (2d Cir. 1979) .............................................................................. 22 Jeffries v. Harleston,
52 F.3d 9 (2d Cir.), cert. denied, 516 U.S. 862 (1995)..................................... 42 Jolly v. Coughlin,
76 F.3d 468 (2d Cir. 1996) .............................................................................. 23 Latino Officers Association v. Safir,
170 F.3d 167 (2d Cir. 1999) ............................................................................ 55 Lindsey v. City of Orrick,
491 F.3d 892 (8th Cir. 2007) ........................................................................... 35 Locurto v. Giuliani,
447 F.3d 159 (2d Cir. 2006) ............................................................................ 52 Melzer v. Board of Education,
336 F.3d 185 (2d Cir. 2003) ............................................................................ 49 Mills v. State of Alabama,
384 U.S. 214 (1966) ........................................................................................ 38 Morris v. Lindau,
196 F.3d 102 (2d Cir. 1999) ............................................................................ 25 Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977) ........................................................................................ 36 Pacific Gas and Elec. Co. v. Public Utilities Com'n of California,
475 U.S. 1 (1986)............................................................................................ 38 Perry v. Sindermann,
408 U.S. 593 (1972) ........................................................................................ 37 Pickering v. Board of Education,
391 U.S. 563 (1968) ................................................................................. passim
v
Rankin v. McPherson, 483 U.S. 378 (1987) ........................................................................................ 41
Red Lion Broadcasting Co. v. F.C.C.,
395 U.S. 367 (1969) ........................................................................................ 38 Resolution Trust Corp. v. Elman,
949 F.2d 624 (2d Cir. 1991) ............................................................................ 23 Reuland v. Hynes,
460 F.3d 409 (2d Cir. 2006) ...................................................................... 38, 50 Rodriguez ex rel. Rodriguez v. DeBuono,
175 F.3d 227 (2d Cir. 1999) ............................................................................ 23 Roth v. United States,
354 U.S. 476 (1957) ........................................................................................ 40 Sheppard v. Beerman,
317 F.3d 351 (2d Cir. 2003) ...................................................................... 41, 50 Thornhill v. State of Alabama,
310 U.S. 88 (1940) .......................................................................................... 39 Time Warner Cable v. Bloomberg L.P.,
118 F.3d 917 (2d Cir. 1997) ............................................................................ 22 United States v. Cutler,
58 F.3d 825 (2d Cir. 1995) .............................................................................. 23 United States v. National Treasury Emp1oyees Union,
513 U.S. 454 (1995) ........................................................................................ 37 Waters v. Churchill,
511 U.S. 661 (1994) ........................................................................................ 42 Whitney v. California,
274 U.S. 357 (1927) ........................................................................................ 39 Zelnick v. Fashion Institute of Techology,
464 F.3d 217 (2d Cir. 2006) ............................................................................ 25
vi
FEDERAL STATUTES
42 U.S.C. §1983............................................................................15, 17, 20, 25, 46 28 U.S.C. § 1292(a)(1) ........................................................................................... 2 Fed. R. App. P. 4(a)................................................................................................ 2
07-5468-cv UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
DEBBIE ALMONTASER,
Plaintiff-Appellant,
-against- NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, individually and in his official capacity as Chancellor of the New York City Department of Education; ROSEMARY STUART, individually and in her official capacity as Community Superintendent of District 15 and Hiring Manager; CITY OF NEW YORK; MICHAEL BLOOMBERG, individually and in his official capacity as Mayor of the City of New York; DENNIS WALCOTT, individually and in his official capacity as Deputy Mayor for Education and Community Development,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
APPELLEES’ BRIEF
MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendants-Appellees 100 Church Street, 6-194 New York, New York 10007. (212) 788-1613
Edward F.X. Hart, Drake A. Colley
of Counsel January 7, 2008