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132915cvMatthewsv.CityofNewYork
Inthe
UnitedStatesCourtofAppealsFortheSecondCircuit
________
AUGUSTTERM,2013
ARGUED:APRIL24,2014DECIDED:FEBRUARY26,2015
No.132915cv
CRAIGMATTHEWS,PlaintiffAppellant,
v.
CITYOFNEWYORK;RAYMONDKELLY,asCommissioneroftheNewYorkCityPoliceDepartment;JONBLOCH,adeputyinspectorintheNewYorkCityPoliceDepartment;andMARKSEDRAN,alieutenant
intheNewYorkCityPoliceDepartment,DefendantsAppellees.
________
AppealfromtheUnitedStatesDistrictCourtfortheSouthernDistrictofNewYork.
No.12cv1354PaulA.Engelmayer,Judge.________
Before:WALKERandHALL,CircuitJudges,andMURTHA,DistrictJudge.*
________
*TheHonorableJ.GarvanMurtha,oftheUnitedStatesDistrictCourtfortheDistrictofVermont,sittingbydesignation.
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OfficerCraigMatthewsbroughtsuitallegingthattheCityof
NewYork retaliated againsthim for speaking tohis commanding
officersaboutanarrestquotapolicyathisprecinctoftheNewYork
CityPoliceDepartment(NYPD).TheUnitedStatesDistrictCourt
for theSouthernDistrictofNewYork (PaulA.Engelmayer, Judge)
grantedthedefendantsmotionforsummaryjudgment,holdingthat
Matthewsspokeasapublicemployee,notasacitizen,andthathis
speech was thus not protected by the First Amendment. We
concludethatbecauseMatthewsscommentsonprecinctpolicydid
not fallwithinhisofficialdutiesandbecauseheelecteda channel
with a civilian analogue to pursue his complaint, he spoke as a
citizen. Accordingly, we VACATE the district courts grant of
summary judgment and REMAND for further proceedings
consistentwiththisopinion.
________
CHRISTOPHER DUNN, (Erin Harrist, ArthurEisenberg, Alexis Karterton, on the brief), NewYork Civil Liberties Union Foundation, NewYork,N.Y.,forAppellant.
MARTA ROSS, (Edward F.X. Hart, William S.J.Fraenkel, on the brief) for Zachary W. Carter,Corporation Counsel of the City of New York,NewYork,N.Y.,forDefendantsAppellees.
________
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JOHNM.WALKER,JR.,CircuitJudge:
OfficerCraigMatthewsbroughtsuitallegingthattheCityof
NewYork retaliated againsthim for speaking tohis commanding
officersaboutanarrestquotapolicyathisprecinctoftheNewYork
CityPoliceDepartment(NYPD).TheUnitedStatesDistrictCourt
for theSouthernDistrictofNewYork (PaulA.Engelmayer, Judge)
grantedthedefendantsmotionforsummaryjudgment,holdingthat
Matthewsspokeasapublicemployee,notasacitizen,andthathis
speech was thus not protected by the First Amendment. We
concludethatbecauseMatthewsscommentsonprecinctpolicydid
not fallwithinhisofficialdutiesandbecauseheelecteda channel
with a civilian analogue to pursue his complaint, he spoke as a
citizen. Accordingly, we VACATE the district courts grant of
summary judgment and REMAND for further proceedings
consistentwiththisopinion.
BACKGROUND
I. MatthewssSpeechabouttheQuotaSystem
Since1999,CraigMatthews,anNYPDpoliceofficer,hasbeen
assigned to the 42nd Precinct (the Precinct) in the Bronx. He
alleges that starting in 2008, unnamed supervisors in the Precinct
implemented a quota system mandating the number of arrests,
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summons, and stopandfrisks that police officers must conduct.
Matthews also alleges that Lieutenant Mark Sedran refined the
quota system by creating a point system that awarded points to
police officers for issuing what Sedran considered good
summonses and subtracted points for less desirable summonses.
Compl. 18, Joint Appx 25. Matthews alleges that officers were
underpressuretocomplywiththequotasystem.
InFebruary2009,Matthews,believing that thequotasystem
wasdamagingtotheNYPDscoremission,reporteditsexistenceto
thenCaptainTimothyBugge, thePrecinctscommandingofficerat
thattime.InMarchandAprilof2009,Matthewsagainreportedthe
quota systems existence to Captain Bugge, and, in May 2009,
Matthews reported the same to an unnamed Precinct executive
officer.
In January2011,Matthewsmetwith thenCaptain JonBloch,
the Precincts new commanding officer, and two other officers in
CaptainBlochsoffice.Matthewstoldthemaboutthequotasystem
and stated that it was causing unjustified stops, arrests, and
summonses because police officers felt forced to abandon their
discretioninordertomeettheirnumbers,andthatitwashaving
an adverse effect on the precincts relationship with the
community.Compl.28,JointAppx28.
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II. Matthewss Complaint and the Defendants Motion toDismiss
OnFebruary 28, 2012,Matthews filed a complaintunder 42
U.S.C. 1983 alleging that the NYPD retaliated against him in
violation of the First Amendment to the U.S. Constitution and
ArticleI,8oftheNewYorkStateConstitutionbecausehespoketo
thePrecinctsleadershipaboutthearrestquotapolicy.Althoughnot
relevant to thisappeal,which is limited to thenarrowquestionof
whetherMatthews spokeasa citizenorasapublicemployee, the
allegedactsofretaliationconsistofpunitiveassignments,denialof
overtime and leave, separation from his careerlong partner,
humiliating treatment by supervisors, and negative performance
evaluations.
OnMarch16,2012,thedefendantsmovedtodismiss,arguing
that Matthewss speech was made pursuant to his official
employment duties and was thus unprotected. The district court
(BarbaraS.Jones,Judge)grantedthedefendantsmotiontodismiss.
SeeMatthewsv.CityofNewYork,No.12Civ.1354,2012WL8084831
(S.D.N.Y.Apr.12,2012).OnNovember28,2012,apanelofthiscourt
vacated thedismissaland remanded,holding that[t]he record in
this case is not yet sufficiently developed . . . to determine as a
matter of law whether Officer Matthews spoke pursuant to his
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officialdutieswhenhevoiced the complaints.Matthewsv.City of
NewYork,488Fed.Appx532,533 (2dCir.2012).Thepanelstated
thatdiscoverywasnecessaryas tothenatureof theplaintiffs job
responsibilities, the nature of the speech, and the relationship
betweenthetwo.Id.(internalquotationmarksomitted).
On remand, after the case was reassigned to District Judge
PaulA.Engelmayer, the followingevidencerelevant to thisappeal
wasdevelopedindiscovery.
III. MatthewssEmploymentDuties
Matthews stated in an affidavit that thevastmajorityofhis
timeasapoliceofficerisspent:
(1)goingonradioruns,whichareresponsesto911calls in the precinct, in addition to 311 requests,and requests that come through the station housetelephoneswitchboard,(2)patrollingthestreetsandvertical patrolling of local housing, (3) filling outcomplaint reports and additional forms relating tocriminalactivity,lostproperty,andmissingpersons,including interviewingwitnesses, (4)responding totraffic accidents, (5) transporting prisoners to andfrom theprecincthouse, courts,andhospitals,and(6) doing community visits with local businessesandorganizations.
JointAppx 9192.Matthewssduties are formallydefined by the
NYPDPatrolGuide,whichwascreatedtoserveasaguideforALL
members of the service, although it does not contain distinct
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instructions for every situation that may be encountered in the
field.Foreword,PatrolGuide, JointAppx410. Section20721of
the Patrol Guide, titled Allegations of Corruption and Other
MisconductAgainstMembersoftheService,statesthat:
Allmembers of the servicemust be incorruptible.Anhonestmemberoftheservicewillnottoleratemembersof the service who engage in corruption or othermisconduct. All members of the service have anabsolute duty to report any corruption or othermisconduct, or allegation of corruption or othermisconduct,ofwhichtheybecomeaware.
Joint Appx 36. The Patrol Guide defines corruption and other
misconductas,[c]riminalactivityorothermisconductofanykind
includingtheuseofexcessiveforceorperjurythatiscommittedbya
memberoftheservicewhetheronoroffduty.Id.Italsooutlinesa
procedure for officers to reportmisconduct to the InternalAffairs
Bureauandprovides that the[f]ailure to report corruption,other
misconduct, or allegations of such act is, in itself, an offense of
seriousmisconductandwillbechargedassuch.Id.at37.
Commissioner JohnBeirne,DeputyCommissioner forLabor
Relations for theNYPD, testifiedatdeposition thataquotasystem
alone isnotmisconductbut thataquota system that results inan
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unjustifiedstop,anunjustifiedarrest,anunjustifiedsummons,oran
adverse employment action is misconduct that must be reported.
Matthews testified that thePatrolGuidedoes not obligate him to
reporttheexistenceofaquotasystemandthathewouldonlyhavea
duty to report misconduct that violated the penal law. It is
undisputedthatMatthewsdidnotregularlymeetwithorreportto
CaptainsBuggeorBloch.CommissionerBeirne,CaptainBloch,and
CaptainBugge testified thatanofficerhasnoduty tomonitor the
conductofhisorhersupervisors.
IV. AvenuesforCivilianComplaintstotheNYPD
Patrol Guide Section 20209 states that one duty of a
commandingofficerintheNYPDisto[m]aintainasmuchpersonal
contactaspossiblewithbusiness,civic[organizations]...andother
groups ormediawith community influence and interests to keep
abreastofcommunitytensionsandtrends.JointAppx209.Inthis
spirit, the Precinct heldmonthlyCommunityCouncilmeetings in
which the public was invited to raise concerns about policing
practices. Captain Bloch testified that he routinely attended these
meetings,missingfewerthanfourorfiveofthepreviousthirty.
In addition to the Community Council meetings, Captain
Bugge testified that, one to three times per month, he met with
membersof thepublic, suchas localpoliticians,church leaders,or
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members of civic associations, to discuss policing issues in the
Precinct. The minutes of one Community Council meeting reflect
thatCaptainBuggeannouncedthathewelcomesthecommunityto
call him and discuss problems. Joint Appx 246. Captain Bloch
testifiedthatinhisexperience,however,meetingswithcommunity
members outside of the Community Council meetings happened
rarely.JointAppx131.
V. TheDefendantsMotionforSummaryJudgment
On May 20, 2013, the defendants moved for summary
judgment. On July 29, 2013, the district court granted the
defendantsmotion.Thedistrictcourtheld thatMatthewssspeech
wasmadeasanemployeeof theNYPD,notasacitizen,and thus
wasnotprotectedbytheFirstAmendment.
Matthewsnowappeals.
DISCUSSION
I. StandardofReview
We review adistrict courts grant of summary judgment de
novo.NaturalRes.Def.Council,Inc.v.U.S.FoodandDrugAdmin.,710
F.3d71,79(2dCir.2013).Summaryjudgmentisonlyappropriateif
the movant shows that there is no genuine dispute as to any
material factand themovant isentitled to judgmentasamatterof
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law.Fed.R.Civ.P.56(a).[V]iewingtheevidenceproducedinthe
lightmost favorable to thenonmovant, ifa rational triercouldnot
find for thenonmovant, then there isnogenuine issueofmaterial
factand entryof summary judgment isappropriate.Bayv.Times
Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) (quoting
Binderv.LongIslandLightingCo.,933F.2d187,191(2dCir.1991)).
II. LegalFramework
AplaintiffassertingaFirstAmendmentretaliationclaimmust
establishthat:(1)hisspeechorconductwasprotectedbytheFirst
Amendment; (2) thedefendant tookanadverseactionagainsthim;
and (3) therewas a causal connectionbetween this adverse action
and theprotected speech.Coxv.WarwickValleyCent.SchoolDist.,
654F.3d267,272(2dCir.2011).Thedistrictcourtgrantedsummary
judgmenttothedefendantsonthebasisthatMatthewssspeechwas
notprotected.Weaddressonlythatissue.
Acourtconductsa twostep inquiry todeterminewhethera
public employees speech is protected: The first requires
determiningwhethertheemployeespokeasacitizenonamatterof
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publicconcern.Garcettiv.Ceballos,547U.S.410,418 (2006) (citing
Pickering v.Bd. ofEduc. ofTwp.HighSch.Dist. 205,WillCnty., 391
U.S.563,568(1968)).Thissteponeinquiryinturnencompassestwo
separate subquestions: (1) whether the subject of the employees
speechwasamatterofpublicconcernand(2)whethertheemployee
spoke as a citizen rather than solely as an employee. Jackler v.
Byrne,658F.3d225,235(2dCir.2011)(citingGarcetti,547U.S.at420
22). If the answer to either question is no, that is the end of the
matter.If,however,bothquestionsareansweredintheaffirmative,
thecourtthenproceedstothesecondstepoftheinquiry,commonly
referred to as the Pickering analysis: whether the relevant
government entity had an adequate justification for treating the
employeedifferentlyfromanyothermemberofthepublicbasedon
thegovernmentsneeds as an employer.Lane v.Franks, 134 S.Ct.
2369,2380 (quotingGarcetti,547U.S.at418); see alsoPickering,391
U.S.at568.
The district court determined that Matthews spoke on a
matter of public concern and the defendantsappellees do not
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challenge that determination here. This appeal concerns only
whetherMatthewsspokeasacitizenorasapublicemployee.The
district courtheld thatMatthews spoke as apublic employee.We
disagree with that conclusion, however, and hold that Matthews
spokeasacitizen.Accordingly,we remand to thedistrictcourt to
determine whether an adequate justification existed for treating
Matthewsdifferently fromanyothermemberof thepublic,and if
necessary,toanalyzeinthefirstinstancewhetherareasonable jury
could find that Matthews suffered retaliation as the result of
exercisinghisFirstAmendmentrights.
III. TheCitizen/EmployeeDistinction
The Supreme Court has recognized a tension in public
employment free speech cases between an employees First
Amendment rights and the common sense realization that
governmentofficescouldnotfunctionifeveryemploymentdecision
becameaconstitutionalmatter.Connickv.Myers,461U.S.138,143
(1983).Theprobleminanycaseistoarriveatabalancebetweenthe
interestsofthe[employee],asacitizen,incommentinguponmatters
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ofpublic concern and the interestof the State, as an employer, in
promoting theefficiencyof thepublicservices itperforms through
itsemployees.Pickering,391U.S.at568.
Guidedby the SupremeCourtsdecision inGarcetti,we ask
twoquestionstodeterminewhetherapublicemployeespeaksasa
citizen: (A) did the speech fall outside of the employees official
responsibilities, and (B) does a civilian analogue exist? See
Weintraubv.Bd.ofEduc.ofCitySch.Distr.ofCityof.N.Y.,593F.3d
196,20304(2dCir.2010).
A. OfficialDuties
[W]henpublicemployeesmakestatementspursuanttotheir
officialduties, the employeesarenot speakingas citizens forFirst
Amendment purposes.Garcetti, 547U.S. at 421.Accordingly,we
haveheldthatspeechisnotprotectedifitispartandparcelof[the
employees] concerns about his ability to properly execute his
duties. Weintraub, 593 F.3d at 203 (internal quotation marks
omitted).
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InGarcetti,theSupremeCourtadoptedafunctionalapproach
towardevaluatinganemployeesjobduties.There,adeputydistrict
attorney alleged that he had been retaliated against for writing a
memorandum recommending that a case be dismissed. The
Supreme Court held that the prosecutors memorandum to his
superiorwasunprotectedbecauseitwaspartofwhat[thespeaker]
. . .wasemployedtodo.Garcetti,547U.S.at421.Thecontrolling
factor in its decision, the Court noted, was that the employees
expressions were made pursuant to his duties as a calendar
deputy. Id. TheCourtcounseled that theappropriate inquiry isa
practicalonedirectedtotheregulardutiesoftheemployee.Id.at
424.While relevant to that inquiry, theCourt cautioned,[f]ormal
job descriptions often bear little resemblance to the duties an
employeeactuallyisexpectedtoperformandthelistingofagiven
task in an employeeswritten job description is neither necessary
norsufficient todemonstrate thatconductingthe task iswithin the
scope of the employees professional duties for First Amendment
purposes.Id.at42425.
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We have appliedGarcettis functional approach in previous
cases.InWeintraub,weheldthataschoolteachersformalgrievance
regarding the administrations refusal to discipline a student was
unprotected speechbecausea teachersneed todisciplinehisown
students isessential tohisability toeffectively runa classroomas
part of his daytoday responsibilities. 593 F.3d at 203. We also
foundthattheteacherschoicetopursuehiscomplaintbyfollowing
theemployeegrievanceproceduresupportedtheconclusionthatthe
speech was unprotected because that procedure had no civilian
analogue.Id.
Similarly, in Ross v. Breslin, we held that a payroll clerks
speech to her superiors about pay discrepancies was unprotected
because it was part of her job responsibilities, which included
making sure pay rates were correct. 693 F.3d 300, 306 (2d Cir.
2012). We noted that the determination of whether a public
employee is speaking pursuant to her official duties is not
susceptibletoabrightlinerule,andthat[c]ourtsmustexaminethe
natureoftheplaintiffsjobresponsibilities,thenatureofthespeech,
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and the relationship between the two. Id. Because the employee
wasexpected touncoverwrongdoingaspartofherdaily jobasa
payrollclerk,weconcludedthatherspeechwasnotprotected.
In this case, Matthews reported the existence of the quota
systemonthreeoccasionstoCaptainBuggeandononeoccasionto
anunnamedexecutiveofficerinthePrecinct.Overayearlater,after
Captain Bloch had replaced Captain Bugge as the Precinct
commanding officer, Matthews reported the quota system to him
and stated that it was causing unjustified stops, arrests, and
summonses because police officers felt forced to abandon their
discretion inorder tomeet theirnumbers and it washaving an
adverse effecton theprecincts relationshipwith the community.
JointAppx28.
MatthewssspeechtothePrecinctsleadershipinthiscasewas
notwhathewasemployed todo,unlike theprosecutorsspeech
inGarcetti,norwasitpartandparcelofhisregularjob,unlikethe
case of the teacher in Weintraub and the payroll clerk in Ross.
Matthewss speech addressed aprecinctwidepolicy. Suchpolicy
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oriented speechwasneitherpartofhis jobdescriptionnorpartof
the practical reality of his everyday work. Section 20221 of the
NYPD Patrol Guide, which outlines the Duties and
Responsibilities of a Police Officer, reinforces this conclusion. It
lists20specificduties,butnoneincludesadutytoprovidefeedback
onprecinctpolicyoranyotherpolicyrelatedduty.SeeJointAppx
113. Matthews similarly stated that his job as a police officer
consistedof radio runs,patrols,complaint reports,andother tasks
involving enforcement of the law; it did not include reporting
misconduct of supervisors nor did it encompass commenting on
precinctwidepolicy.Matthewshadnoroleinsettingpolicy;hewas
neither expected to speak onpolicynor consulted on formulating
policy.CommissionerBeirne,CaptainBloch,andCaptainBuggeall
testified thatapoliceofficerhasnoduty tomonitor theconductof
hissupervisors.CaptainBlochandCaptainBuggealsotestifiedthat
Matthews neither met regularly with the Captains nor submitted
regular reports to them. Apart from the occasions on which
Matthews spoke to them about the quota system, he did not
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communicate with the Precincts commanding officers beyond
occasionalhallwaysmalltalk.Insum,Matthewssactual,functional
job responsibilities did not include reporting his opinions on
precinctwidequotasystemstothePrecinctcommanders.
Wehold thatwhen apublic employeewhosedutiesdonot
involve formulating, implementing, or providing feedback on a
policythat implicatesamatterofpublicconcernengages inspeech
concerning thatpolicy,anddoesso inamanner inwhichordinary
citizenswouldbeexpectedtoengage,heorshespeaksasacitizen,
notasapublicemployee.
TheCitypoints toSection20721of theNYPDPatrolGuide,
which,asnotedearlier,statesinpertinentpart[a]llmembersofthe
service have an absolute duty to report any corruption or other
misconduct, or allegation of corruption or other misconduct, of
which they become aware. Joint Appx 36. It defines
corruption/other misconduct as [c]riminal activity or other
misconduct of any kind including the use of excessive force or
perjurythatiscommittedbyamemberoftheservicewhetheronor
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offduty. Id.Thedistrict court reliedon thisprovision inholding
thatMatthewssreportswerepartofhisofficialduties.Webelieve
thisreliancewasmisplaced.
Matthews testified that he understood Section 20721 to
requireonlyreportsofmisconductrising to the levelofaviolation
ofpenallaw.CommissionerBeirnetestifiedthatthesectionrequires
reportsofalmosteveryviolationofthePatrolGuide..Undereither
interpretation,however, theprovisiondoesnot renderMatthewss
speechunprotected.
Matthews, in speakingout about thequota system,wasnot
reportingsuspectedviolationsoflawthatmighthaverequiredhim
toexercisehisauthoritytoarrestafellowpoliceofficerorturninan
officer forbreachofaprotocol.Matthewsadmitted thathewould
have toreportapoliceofficerwhoviolated the law,but this isnot
such a case. Here, Matthews was voicing concerns about broad
policy issues that, at most, had the potential of incentivizing a
violation of law; he was not identifying individual violations.
Matthews toldCaptainBloch that, as a result of thequotapolicy,
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policeofficers felt forced toabandon theirdiscretion,whichwas
causingunjustifiedstops.Compl.28,JointAppx28.Matthews
wasnotflaggingspecificviolationsoflaw,butratherexpressingan
opiniononapolicywhichhebelievedwaslimitingofficerdiscretion
to not intervene in situations that, in the officers own judgment,
mightnotwarrant intervention.According toMatthews, thepolicy
resultedinstopsthatwereunjustifiedbecausenoofficerproperly
exercisingdiscretionwouldhavemade them. Inaddition,wenote
that Matthews, by reporting the quota system to the Precinct
commandersinsteadoftotheNYPDInternalAffairsBureau,didnot
followtheinternalproceduressetoutinSection20721.
EvenifMatthewssspeechweredeemedtofallwithinSection
20721, thisprovisionwouldnotbedeterminativeofwhether that
speechwasprotectedbytheFirstAmendment.IfthePatrolGuides
general duty to report misconduct were permitted to control
whether the speech of any employeewithout regard towhether
the investigationandreportingofmisconduct isan integralpartof
theemployeesdaytoday job (i.e.whatheorshe isemployed to
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do,Garcetti,547U.S.at421)enjoyedFirstAmendmentprotection,
publicemployerscouldbeencouragedtosimplyprescribesimilarly
generalduties, thereby limitingsuchprotection forwideswathsof
employee speech.When JusticeSoutersdissent inGarcetti flagged
this risk, id.at431n.2, theCourtmajority respondedby explicitly
reject[ing]...thesuggestionthatemployerscanrestrictemployees
rightsbycreatingexcessivelybroad jobdescriptions, id.at424.To
besure,thedutytoreportmisconducthasincreasedrelevanceinthe
contextof lawenforcement,butwebelievethat it ismoreproperly
consideredaspartofthePickeringbalancinganalysisindetermining
whetherthegovernmentemployerhadanadequatejustificationfor
its actions. See supraDISCUSSION, Section II, Legal Framework; see
also Lane, 134 S.Ct. at 2381 (describing thePickering framework as
balancingtheinterestsoftheemployee,asacitizen,incommenting
uponmattersofpublicconcernand the interestof theState,asan
employer, in promoting the efficiency of the public services it
performs through its employees (citing Pickering, 391U.S. at 598
(internalquotationmarksandbracketsomitted))).
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B. CivilianAnalogue
The existence of a comparable civilian analogue for
Matthewssspeechalsosupportsourconclusion thathespokeasa
citizen. Speech has a relevant civilian analogue if it is made
throughchannelsavailabletocitizensgenerally. Jackler,658F.3d
at 238. [A]n indicium that speech by a public employee has a
civilian analogue is that the employees speech was to an
independent state agency responsible for entertaining complaints
by anycitizen inademocraticsocietyregardlessofhisstatusasa
publicemployee.Id.at241(quotingWeintraub,593F.3dat204).
In Jackler,we held that a police officers refusal to retract a
truthfulreporttothepolicehadaciviliananaloguebecauseanon
employeecitizenmayalsorefusetoretractatruthfulpolicereport.
658 F.3d at 241. InWeintraub, on the other hand, we found the
teachers speech unprotected in part because lodging of a union
grievance is not a form or channel of discourse available to non
employeecitizens,aswouldbea lettertotheeditororacomplaint
toanelectedrepresentativeor inspectorgeneral. 593F.3dat204.
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Unlike the teacher inWeintraub,Matthewsdidnot follow internal
grievance procedures, but rather went directly to the Precinct
commanders,withwhomhedidnothaveregular interactionsand
whohadanopendoortocommunitycommentsandcomplaints.
Matthewschoseapaththatwasavailabletoordinarycitizens
whoareregularlyprovidedtheopportunitytoraiseissueswiththe
Precinctcommanders.CaptainBlochstatedthatheattendednearly
everymonthlyCommunityCouncilmeeting. AndCaptainBugge
testifiedthatonetothreetimespermonthhemetwithmembersof
thecommunitytodiscussissuesinthePrecinct.Matthewsreported
hisconcernsaboutthearrestquotasystemtothesameofficerswho
regularlyheardciviliancomplaintsaboutPrecinctpolicingissues.
The district court found an absence of a civilian analogue
becauseMatthewshadbetteraccesstohiscommandingofficersthan
would ordinary citizens. The district court noted that Matthews
couldspeaktotheofficersmorereadily,morefrequently,andmore
privately than could an average citizen.Matthews v. City ofNew
York,957F.Supp.2d.442,465 (S.D.N.Y.2013).Wedonotconsider
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the relativedegreeofaccess tobematerial; ratherwhatmatters is
whetherthesameorasimilarchannelexistsfortheordinarycitizen.
If courtswere to confine their focus to the degree of access, then
internalpublic employee speech onmatters ofpublic concern not
madeaspartofregularjobdutieswouldbeunlikelytoreceiveFirst
Amendment protection because, presumably, employees always
have better access to senior supervisors within their place of
employment.
Here,Matthewspursuedthesameavenuetocomplainabout
aprecinctwidepolicy aswould a concerned civilian.The channel
Matthewschosetoaddresshisconcernsaboutthequotasystemthus
reinforcesourconclusionthatMatthewsspokeasacitizen,notasa
publicemployee.
CONCLUSION
Forthereasonsstatedabove,weVACATEthedistrictcourts
grantofdefendantsmotionsforsummaryjudgmentandREMAND
forfurtherproceedingsconsistentwiththisopinion.
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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse
40 Foley Square New York, NY 10007
ROBERT A. KATZMANNCHIEF JUDGE
CATHERINE O'HAGAN WOLFECLERK OF COURT
Date: February 26, 2015Docket #: 13-2915cvShort Title: Matthews v. City of New York
DC Docket #: 12-cv-1354 DC Court: SDNY (NEW YORK CITY)DC Judge: Engelmayer
BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill ofcosts is on the Court's website.
The bill of costs must:* be filed within 14 days after the entry of judgment;* be verified;* be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits;* identify the number of copies which comprise the printer's unit;* include the printer's bills, which must state the minimum charge per printer's unit for a page, acover, foot lines by the line, and an index and table of cases by the page;* state only the number of necessary copies inserted in enclosed form;* state actual costs at rates not higher than those generally charged for printing services in NewYork, New York; excessive charges are subject to reduction;* be filed via CM/ECF or if counsel is exempted with the original and two copies.
Case 13-2915, Document 96-2, 02/26/2015, 1446779, Page1 of 1
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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse
40 Foley Square New York, NY 10007
ROBERT A. KATZMANNCHIEF JUDGE
CATHERINE O'HAGAN WOLFECLERK OF COURT
Date: February 26, 2015Docket #: 13-2915cvShort Title: Matthews v. City of New York
DC Docket #: 12-cv-1354 DC Court: SDNY (NEW YORK CITY)DC Judge: Engelmayer
VERIFIED ITEMIZED BILL OF COSTS
Counsel for_________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk toprepare an itemized statement of costs taxed against the________________________________________________________________
and in favor of_________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________
(VERIFICATION HERE)
________________________ Signature
Case 13-2915, Document 96-3, 02/26/2015, 1446779, Page1 of 1
13-291596 Opinion FILED - 02/26/2015, p.196 Bill_of_Cost_Itemized_Notice_1 - 02/26/2015, p.2596 Bill_of_Cost_Itemized_Notice_2 - 02/26/2015, p.26
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