Case 1:12-cv-01354-PAE Document 1 Filed 02/23/12 Page 1 of 15
IIDGEJO!8'

~~~~~-~:~-~-~-~=--~::_~~_~~ UNITED STATES DISTRICT COURT

12 elV 13

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4

CRAIG MATTHEWS,

Plaintiff

-versus-
CITY OF NEW YORK; RAYMOND KELLY, as Commissioner of the New York City Police Department; JON BLOCH, a deputy inspector in the New York City Police Department; MARK SEDRAN, a lieutenant in the New York City Police: Department,
Defendants --------------------------------------------------------------- ](

COMPLAINT JURY EMANDED
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PRELIMINARY STATEMENT

l.

This is a civil rights action to vindicate the right of police officers in the New

York City Police Department ("NYPD") to speak out against the use of illegal quotas without

facing retaliation. The plaintiff Craig Mathews is a l4-year veteran police officer with an

exemplary record who been subjected to a campaign of retaliation and harassment for having

reported the existence of a highly developed quota system in the 42nd Precinct in the Bronx.

This retaliation comes in the context of a city-wide controversy over the NYPD's use of illegal

quotas and the damage such quotas inflict on innocent people, policing, and police-community

relations.

2.

Since 2008, supervisors in the 42nd Precinct have developed and implemented a

system of quotas mandating numbers of arrests, summonses, and stop-and-frisks (with one

supervisor describing stop-and-frisks as being "worth their weight in gold"). As part ofthe

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regime for enforcing these quotas, supervisors have developed a detailed monitoring system that includes computer reports that use color coding to categorize officers in terms of their compliance with quotas. Current reports use black ink to identify officers who are meeting quotas, silver ink to identify officers who are meeting only some quotas, and red ink to identify officers who are not meeting quotas. Officers in the precinct are constantly pressured to meet the quotas, and those do not are subject to punishment including undesirable assignments, the loss of overtime, denial ofleave, separation from partners, and poor evaluations.
3. Concerned about the impact of illegal quotas on policing and police-community
>->'*,
relations, Officer Matthews on at least four occasions has notified commanding officers of the 42nd Precinct about the quota system being used by mid-level supervisors. In response to having spoken out about the precinct's quota system, Officer Matthews has been retaliated against in ways that are more severe and differ from the punishment being imposed on the many other officers not meeting the quotas. And at a roll call last month, a supervisor running the quota program said, "If you come after me, I will come back after you harder."
4. The quota system in the 42nd Precinct has pitted police officers against each other, straining professional relationships and diverting resources away from law enforcement activities. Officers who comply with the quotas have had their precinct lockers dislodged and overturned, with the lockers sometimes being placed in the shower or their locks being plastered shut. This practice of "locker flipping" has escalated to the point where on-duty police officers are now assigned to guard the precinct's locker room around the clock.
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5. The use of an illegal quota system in the 42nd Precinct reflects a larger crisis in the NYPD. For several years, the Department has been engulfed in a scandal about its use of quota systems that lead to innocent New Yorkers being stopped and frisked, given summonses, and even arrested. Through tape recordings, officer complaints and admissions, and newspaper reports, quota systems have been uncovered across the city.
6. The defendants have violated Officer Matthews' rights under the First Amendment and New York Constitution. He seeks an injunction requiring the defendants to cease all actions in retaliation for his protected speech, as well as an award of compensatory damages and attorney' s fees.
PARTIES
7. Plaintiff CRAIG MATTHEWS is a police officer employed by the New York City Police Department in the Bronx.
8. Defendant CITY OF NEW YORK is a municipality organized under the laws of the State of New York.
9. Defendant RAYMOND KELLY is the Commissioner of the New York City Police Department and has his office at 1 Police Plaza, New York, N.Y. 10038. Mr. Kelly is sued in his official capacity.
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10. Defendant JON BLOCH is the commanding officer ofthe 42nd Precinct ofthe N ew York City Police Department.
11. Defendant MARIZ SEDRAN is a lieutenant in the 42nd Precinct of the New York City Police Department.
FACTUAL ALLEGATIONS 12. For several years, the New York City Police Department has been engulfed in a scandal about its use of illegal quotas. The NYPD's use ofillegal quotas was dramatically exposed by a series of audio recordings made by an officer assigned to the 8lst Precinct in Brooklyn, which revealed his supervisors announcing mandated numbers for arrests, summonses, and stop-and-frisks. Requiring officers to meet quotas inevitably leads them to make arrests, issue summonses, and conduct stop-and-frisks of innocent people. Not coincidentally, street stops conducted by NYPD officers have exploded in number in recent years, going from fewer than 100,000 in 2002 to nearly 700,000 last year.
13. Starting in May 2010, The Village Voice ran a series of articles focusing on the quota system in the 8lst Precinct. In August 2010 then-Gov. David Paterson signed legislation expanding the scope of the state's anti-quota statute to ban retaliation for not meeting quotas for tickets, summonses, arrests, and stop-and-frisk encounters. Before it was amended, the anti-quota law only covered traffic violations.
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14. In just the last six months, several controversies about NYPD quotas have arisen. In January of this year, the NYPD was ordered to arbitrate a grievance brought by an officer who claims there is a pervasive quota system in the 20th Precinct on the Upper West Side of Manhattan. In October 2011 a narcotics detective in Queens admitted that the use of quotas by the NYPD led him and other officers to plant cocaine on innocent individuals in order to boost their arrest numbers. The officer, a former narcotics detective named Stephen Anderson, testified in court that he participated in the practice - called "flaking" - when his co-workers needed lastminute arrests to fulfill their quotas. Anderson testified that he and his partner had a "number to reach" and that they planted drugs on innocent people because his partner was "worried about getting sent back [to patrol] and ... the supervisors getting on his case." And in August 2011 a federal judge in the Southern District ofN ew York, in denying the NYPD' s motion for summary judgment in a class-action challenge to the stop-and-frisk program, described the recordings from the 81st Precinct as "smoking gun" evidence of the existence of quotas.
15. Despite the public controversy about its quota system and despite the recent quota legislation, the NYPD has refused to admit that illegal quotas exist while continuing to enforce them in precincts across the city. As a result, individual police officers face intense pressure to comply with orders to meet illegal quotas.
16. Plaintiff Police Officer Craig Matthews is a l-l-year veteran assigned to the 42nd Precinct in the Bronx, where he has been since 1999. During his time at the 42nd Precinct, Officer Matthews has received over 20 awards for his police work.
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17. Until recently, Officer Matthews consistently received positive annual reviews. For instance, his review for 2004 stated, "P.O. Matthews is incorruptible. He has the highest level of integrity and displays a great sense of morals." His 2005 review said, "P.O. Matthews is always desirous and willing to work, and is able to do his job with little or no direction"; and his 2007 review described him as "an experienced officer who is a valuable asset to this precinct ... [and who] is able to complete his assigmnents with little or no instructions."
18. In 2008 supervisors in the 42nd Precinct started to pressure officers to meet numerical quotas for arrests, summonses, and stop-and-frisks. For Officer Matthews' squad, this quota system was created by his platoon commander, Lieutenant Mark Sedran. In 2009 Sedran refined the quota system by putting in place a point system whereby he awarded points for what he considered "good" summonses - meaning hazardous summonses - and subtracted points for non-hazardous summonses. (Hazardous summonses refer to moving violations issued for traffic infractions that are more likely to cause accidents on the roadways, such as using a cell phone while driving or disobeying traffic signals.) Officers who did not meet the quotas were subjected to a wide range of punishment, including undesirable assignments, loss of overtime, and denial of requested days off.
19. Officer Matthews recognized that such a quota system violates the NYPD's core mission and his own commitment as a police officer to protect and serve the public at large. As a result, he was unwilling to participate in a practice that would damage the communities he was entrusted to protect.
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20. In February 2009 Officer Matthews reported to the precinct's commanding officer, Captain Timothy Bugge, that a quota system had been established in the precinct. When the quotas continued, he again reported them to Captain Bugge in March and April2009 and reported them to the precinct executive officer in May 2009.
21. In June 2009 Captain Bugge told Officer Matthews that he had spoken with Lieutenant Sedran and that the situation was handled. In fact, the quota system continued, with Lieutenant Sedran saying in a roll call that he would use it secretly. In addition, Lieutenant Sedran embarked on a campaign of retaliating against Officer Matthews for having reported the quota system to the precinct's commanding officers. As part of that campaign, Officer Matthews has been given punitive assignments (such as footposts or prisoner transport), been denied overtime, been denied leave, been separated from his career-long partner, and been the target of humiliating treatment by his supervisors. Unlike the punishment imposed on the many other officers who have failed to meet quotas, Lieutenant Sedran's harassment of Officer Matthews was constant and personal. He treated Officer Matthews differently from other officers, targeting him even for the most minor infractions.
22. In October 2009 Captain Bugge informed Officer Matthews that he would not interfere with how supervisors ran their platoons. At this point Officer Matthews concluded that it was futile to notify Captain Bugge further about the quota system.
23. In 2010 mid-level precinct supervisors began producing regular computer reports with the number of summonses issued by each officer, with distinctions between types of
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summonses that were considered more desirable and those considered less desirable. Officers who did not make their quotas were highlighted in red on these activity reports, while officers who had made their quotas were listed in black.
24. In the spring of2010 Sergeant Sean Wick, who supervised Officer Matthews' squad, was explicitly instructed to deny all requests for emergency days off and vacation time because of the squad's numbers. On a May 2010 Campstat report, Lieutenant Sedran wrote the
following note: "Sean, your squad's activity is the worst in the command re. B's + C's. No E-
days, vac days or lost time are to be granted to anyone in your squad." In police jargon, the
phrase "B's + C's" refers to violations and summonses of varying degrees of severity.
25. Officer Matthews faced continued retaliation throughout 2010, causing him to suffer both mentally and physically. At the end of the year, he went to the emergency room for what he thought was a heart attack, and his symptoms were ultimately attributed to extreme stress.
26. During the first week of January 2011, Officer Matthews twice asked Lieutenant Sedran for a day off so he could get a cardiovascular test. Lieutenant Sedran denied both requests and stated he was surprised Officer Matthews had the nerve to request a day off after "fighting" Lieutenant Sedran about activity every month.
27. Officer Matthews' annual evaluation for 2010, which was completed by Lieutenant Sedran and Sergeant Wick -- the platoon commander and sergeant whom Officer
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Matthews had repeatedly implicated in the precinct's quota system -- rated Officer Matthews lower than previous reviews in virtually every category. This review gave Officer Matthews an overall evaluation score ofthree out of five, which is the lowest passing score and is significantly below his normal rating. The review also included comments highly critical of his outspokenness. For instance, the review stated that Officer Matthews is "difficult to work with, he questions his assignments and wants to debate every issue." Lieutenant Sedran wrote that Officer Matthews "has a contrarian attitude and can be abrasive when given instruction." Officer Matthews understood these comments to refer specifically to his complaints to the precinct commanding officer about the quota system.
28. In January 2011 Officer Matthews met with defendant Deputy Inspector Jon Bloch (then a captain), who had become the precinct commanding officer in 2010. In the presence of another officer and the precinct's executive officer, Officer Matthews informed Bloch about the quota system and that it was causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers. Officer Matthews also told Bloch that the quota system was having an adverse effect on the precinct's relationship with the community. Captain Bloch became irate and ordered Officer Matthews and the others out of his office.
29. In this meeting, as in all of his reports to Captains Bugge and Bloch, Officer Matthews voiced precisely the sort of concern about policing practices that the NYPD encourages New Yorkers to voice to the commanding officers of their precincts. Each precinct has a community council run by local residents that meets each month, and commanding officers
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regularly attend these meetings. In the 42nd Precinct, the community council meets on the fourth Thursday of every month in the precinct's station house, and each meeting includes an open microphone portion that allows citizens to discuss policing issues directly with precinct supervisors. Deputy Inspector Bloch regularly attends these meetings in his capacity as the precinct's commanding officer.
30. Local residents also can voice their concerns about police practices by walking into the station house to meet with Deputy Inspector Bloch or by calling the precinct, where the officers answering the phones can transfer anyone to Deputy Inspector Bloch's direct phone line.
31. Discussing concerns about police practices with residents of the precinct is an integral part ofthe commanding officer's job. After the audio tapes revealing the quota system in the 81st Precinct were released, Commissioner Raymond Kelly appointed Deputy Inspector Juanita Holmes to be the commanding officer ofthe 81st Precinct. Deputy Inspector Holmes attended a community meeting in the precinct to address concerns about the quota system.
32. Since his January 2011 meeting with Deputy Inspector Bloch, Officer Matthews has been subjected to heightened retaliation that differs from the punishment inflicted on the many other officers who have failed to meet quotas, making it clear that this retaliation is a result of his speaking out against the quota system. For example, in late November 2011 Captain Bloch and Lieutenant Sedran stopped Officer Matthews near the end of his shift and pulled him from his assigned sector. In front of other officers, Lieutenant Sedran told Officer Matthews that they were going to drive him around the precinct and gave him a "goal" of obtaining eight
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arrests. This was an effort to humiliate Officer Matthews in front of his colleagues. Officer Matthews was specifically targeted instead of other officers who failed to meet the quotas because he spoke out against the quota system.
33. Officer Matthews also has been assigned duties that present a risk to his personal safety, such as transporting multiple prisoners without the standard number of back-up officers. On January 15,2012, for example, Lieutenant Sedran ordered the three officers who had accompanied Officer Matthews on a prison transport to be reassigned, intentionally leaving Officer Matthews alone to process thirteen prisoners.
34. In addition, Officer Matthews has been denied overtime and time off and has been deliberately barred from the sorts of job assignments that an officer of his seniority would usually receive. For example, an officer of Officer Matthews' seniority would generally receive Critical Response Vehicle ("C.R.V.") assignments, which guarantees overtime every shift. Lieutenant Sedran has consistently denied Officer Matthews these assignments. When Lieutenant Sedran was out sick for two days in December 2011, however, Officer Matthews received C.R.V. assignments.
35. In December 2011 the computer reports used in conjunction with the quota system in the 42nd Precinct were changed to reflect an even more discriminating monitoring system. Whereas prior reports had labeled officers in black and red ink depending upon their compliance with quotas, the new reports add a silver category for officers who are meeting quotas in some categories but not in others. A recent version of this report covering the first two
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weeks of January 2012 provides figures for 155 individual officers, with 15 officers in black ink, 90 in silver ink, and 60 in red ink.
36. On January 5, 2012, Officer Matthews was further targeted for disclosing the precinct's quota system when Sergeant Wick announced that Officer Matthews would be permanently separated from his career-long partner and that Sergeant Wick himself would be Officer Matthews' new partner. While additional officers failed to meet their assigned quotas, only Officer Matthews was permanently assigned to partner with a supervisor.
37. During roll call on January 8,2012, Lieutenant Sedran threatened Officer Matthews, stating: "If you come after me, I will come back after you harder." Officer Matthews understood this threat was directed towards him for his having reported Lieutenant Sedran's illegal quota system to the precinct's commanding officers.
38. On February 23,2012 (the day of the filing ofthis lawsuit), Officer Matthews received his evaluation for 2011. Completed by Deputy Inspector Bloch and Sergeant Wick, the evaluation gives Officer Matthews an overall rating of 2.5, an extraordinarily low rating that subjects him to close monitoring and puts him at risk of being fired. Not surprisingly in light of their prior responses to Officer Matthews' complaints about the quota system, the review specifically notes that "[h]e needs to be directed to issue summons and make arrests" [sic] and claims he "is argumentative and questioning regarding his assignments." This evaluation grossly distorts Officer Matthews' performance and is in retaliation for his having spoken out about the quota system.
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JURISDICTION AND VENUE 39. This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3)-( 4). This Court has supplemental jurisdiction over all state constitutional and state law claims pursuant to 28 U.S.C. § 1367(a).
40. Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) in that defendant City of New York is located within the Southern District of New York.
41. The defendants' actions have been taken under the color oflaw.
CAUSES OF ACTION First Cause of Action 42. The defendants have violated the plaintiffs rights under the First Amendment to the United States Constitution and 42 U.S.C. § 1983.
Second Cause of Action 43. The defendants have violated the plaintiffs rights under Article I, § 8 ofthe New York State Constitution.
JURY DEMAND
44. The plaintiff demands a jury for each of his claims.
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WHEREFORE, the plaintiff requests that this Court:
(1) Assume jurisdiction over this matter; (2) Issue a declaration that the defendants violated the plaintiff's rights under the First
Amendment of the United States Constitution and Art. I, § 8 of the New York State Constitution; (3) Issue an injunction ordering the defendants to cease from engaging in any further action in retaliation for Officer Matthews' exercise of his free speech rights and ordering the defendants to restore to Officer Matthews all benefits he lost as a result of adverse employment action to reverse any retaliatory actions taken against Officer Matthews; (4) Order the defendants to pay compensatory damages to the plaintiff; (5) Award attorneys' fees and costs pursuant to 42 U.S.C. § 1988, and (6) Order any other relief the court deems appropriate.

Dated: February 23,2012 New York, N.Y.

Respectfully submitted,
C~j..7)r
CHRISTOPH~R DUNN New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 (212) 607-3300
Counsel for Plaintiff

On the Complaint:
KATE DONIGER * Law Student New York University School of Law Civil Rights Clinic
HOLLY MOWFORTH* Law Student N ew York University School of Law Civil Rights Clinic

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Case 1:12-cv-01354-PAE Document 1 Filed 02/23/12 Page 15 of 15 JAKE TRACER* Law Student New York University School of Law Civil Rights Clinic
* The Plaintiffs and the New York Civil Liberties Union Foundation will be seeking leave of :
court to permit these students to serve as attorneys in this matter pursuant to the Southern District's Student Practice Plan.
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 Case 1:12-cv-01354-PAE Document 18 Filed 04/12/12 Page 1 of 12

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CRAIG MATTHEWS v.

Plaintiff,

THE CITY OF NEW YORK, et al.,
Defendants.
BARBARA S. JONES UNITED STATES DISTRICT JUDGE

USbcSDNY
. DOCUMENT ELECfRONICALLY F1LED ---x DOC If:
a.. DATE FI-L-E-D-:--L-j---I -~---I~----
12 CV 1354 (BSJ)
Order
-- -- --x

This case arises from allegations that Plaintiff, Officer Craig Matthews, was retaliated against for complaining about an illegal quota system in the 42nd Police Precinct. Plaintiff filed suit under 42 U.S.C. § 1983, alleging violation of his First Amendment rights. The Defendant, the City of New York, moves to dismiss on the ground that Plaintiff did not engage in constitutionally protected speech. For the reasons that follow, the City's motion to dismiss is GRANTED.
BACKGROUND
Matthews alleges that, "[s]ince 2008, supervisors in the 42nd Precinct have developed and implemented a system of quotas mandating numbers of arrests, summonses, and stop and-frisks" as well as a "detailed monitoring system that includes computer reports that use color coding to categorize officers in terms of
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their compliance with quotas. 1I (Complaint I ~ 2.) Because Matthews believed that the quota system "violate[d] the NYPD's core mission and his own commitment as a police officer to protect and serve the public at large," Matthews spoke out about the quota system to his commanding officers, and informed them that the system "was causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers. 11 (Complaint I
Matthews identifies four occasions on which he notified the commanding officers about the quota system being used by mid level superior officers. (Complaint I ~~ 3, 20, 28.) He claims that, subsequent to these complaints l he was subjected to retaliation. Specifically, Matthews alleges that he was given "punitive assignments (such as footposts or prisoner transport) ,II denied overtime and leave, separated from his "career long partner," and has become the "target of humiliating treatment by his supervisors." (Complaint, ~ 21.) He also alleges that recent negative performance evaluations were retaliatory. (Complaint, ~~ 27, 38.)
Matthews brings suit under 42 U.S.C. § 1983, claiming that the City has violated his First Amendment rights. The City moves to dismiss on the ground that Matthews spoke as a public
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employee, not as a citizen, and has therefore failed to state a claim under the First Amendment.
LEGAL STANDARD To survive a motion to dismiss, the Complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. B(a} (2). The Court will liberally construe the complaint. Att' Gen. of Can. ~v~.~R~.~J~.~~~~~_T~o~b~a~c~c~o~H~O~l~~~~_I~n~c~., 26B F.3d 103, 106 (2d Cir. 2001). However, "the operative standard requires the plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 200B) (internal quotation marks omitted). That is, a plaintiff must assert "enough facts to state a claim to relief that is plausible on its face,lI Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. II Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation omitted) .
DISCUSSION Whether the First Amendment protects a public employee's speech turns on whether the speech involves a matter of public
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concern and whether the employee spoke as a "citizen" rather

than as an employee. Garcetti v. Ceballos, 547 U.S. 410 (2006) i

Sousa v.

, 578 F.3d 164, 169 70 (2d Cir. 2009) ("To

------------~--

determine whether or not a plaintiff's speech is protected, a

court must begin by asking whether the employee spoke as a

citizen on a matter of public concern." (internal quotation

marks omitted)).

There is no dispute that Matthews' speech, as alleged in

the Complaint, involved a matter of public concern. See Jackler

v. Byrne, 658 F. 3d 225, 236 (2d Cir. 2011) (speech pertaining to

police malfeasance implicates matters of public concern). The

only question is whether Matthews spoke as a citizen, rather

than an employee. As stated, under Garcetti, if Matthews did

not so speak, his speech is not constitutionally protected,

regardless whether it involved a matter of public concern. See

Anemone v. Met. Trans. Auth., 629 F.3d 97, 115-16 (2d Cir.

2011) .

A. Speech "Pursuant to" Job Duties

As the Supreme Court instructs, "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." Garcetti, 547 U.S. at 421. In advancing

this standard, the Garcetti Court explained that "[r]estricting

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speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created." Id. at 421 22.
The City argues that, here, Matthews spoke pursuant to his duties as a police officer. It refers to several factors that, when taken together, indicate that Matthews' speech was employee speech-that it: was related to Matthews' concern about executing his duties properly; was voiced only to his superiors, in the workplace; concerned the subject matter of his job, and was based on the "special knowledge" that Matthews gained through his public position. (Mot. to Dismiss at 5-6.) At bottom, the City argues that a police officer's duties include reporting beliefs that arrests and summons are being made unlawfully and, as such, Matthews' complaints about the quota and monitoring system fell squarely within his job responsibilities. Id.
In his Opposition to the Motion to Dismiss, Matthews argues that his speech was more nuanced than that. He claims that he was not just complaining about the fact that arrests and summonses were being made illegally, but also about the existence of a quota system and the system's impact on the management of other officers, the precinct, and the community. (Opp . at 13.) Under either characterization, the Court finds
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that Matthews' speech was made pursuant to his job duties and is therefore not protected by the First Amendment. (Opp. at 13.)
The Second Circuit has a broad and "practicalH standard for what constitutes speech "pursuant" to an employee's official duties. In Weintraub v. Board of Education, the plaintiff, a public school teacher, filed a grievance with the union challenging the assistant principal's decision not to discipline a student who had thrown books at the plaintiff during class. 593 F.3d 196 (2d Cir. 2010). The Second Circuit held that the filing of the grievance was in furtherance of "one of [plaintiff's] core duties" as a teacher-maintaining class discipline. Id. at 198.
Here, as in Weintraub, Matthews' complaints to his supervisors are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue summonses, and-in general-police. Here, like the plaintiff in Weintraub, Matthews attempts to carve out his speech for First Amendment protection by claiming that he was not technically "required" to initiate grievance procedures and/or expose the problem as part of his employment duties.
The Court rejects that argument as one that elevates form over substance. As Weintraub observed, "[t]he objective inquiry into whether a public employee spoke 'pursuant to' his or her official duties is a 'practical one' [and] [t] he Garcetti Court
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cautioned courts against construing a government employee's

official duties too narrowly." 593 F.3d at 202. By that

standard, the Court concludes that Matthews' concerns about

illegal policing practices are "part-and-parcel" of his ability

to "properly execute his duties." Id. at 203. As he himself

describes it, the quota system caused "unjustified stops,

arrests, and summonses because police officers felt forced to

abandon their discretion in order to meet their numbers."

(Complaint, ~ 28.) And, to the extent Matthews defines his

speech as complaints about precinct mismanagement and

communication, that speech is not protected under well

established Supreme Court precedent. See Connick v. Myers, 461

U.S. 138, 147 (1983) i see also Frisenda v. Inc. ViII. of

Malverne, 775 F. Supp. 2d 486 (E.D.N.Y. 2011) (finding that an

employee's memorandum concerning communications problems with

officers investigating and responding to emergency situations

was not protected speech) .

B. Speech with a "Civilian Analogue"

Matthews argues, however, that the Second Circuit's opinion

in Jackler v.

establishes as a matter of law that his

speech is constitutionally protected, regardless whether his

speech was pursuant to duties. In substance, he characterizes

Jackler as holding that the presence of a civilian analogue-

alone-is sufficient to confer First Amendment protection.

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Matthews leges that there was a civilian analogue to his speech because the precinct supervisors routinely participated in community forums at which members of the community were invited to voice their grievances to the precinct's commanding officers, much like Matthews did, internally. (Complaint, ~~ 29 30.) The Court does not believe that Jackler stands for the proposition that Matthews suggests and, accordingly, finds that Matthews' reliance on Jackler is misplaced.
Jackler did not introduce the notion of a ucivilian analogue" into the case law. The concept was born of dicta in the Supreme Court's holding in Garcetti, where the Court noted that the Utheoretical underpinnings" of its decisions in the area of public employee speech were related to the principle that U[e]mployees who make public statements outside the course of performing their off ial duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government." 547 U.S. at 423. Writing letters to a local newspaper, discussing politics with a co-worker, and making public statements were all examples of that ukind of activity." Id. at 423-24. Later, the Second Circuit in Weintraub acknowledged that the presence of a "civilian analogue" to an employee's speech was relevant in determining whether speech was made as employee or as citizen. In that case, the fact that there was no civilian analogue to
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the teacher's grievances (filed with a union) confirmed that the speech at issue was made pursuant to his job duties. Neither of those cases addressed a factual situation where the speech was made "pursuant to" the employee's job duties but for which there was also a civilian analogue. 593 F.3d at 203. But, contrary to Matthews' suggestion, neither did Jackler.
In Jackler, a probation officer wrote a report explaining how he had witnessed an arresting police officer physically assault the arrestee during the arrest. To cover up the police misconduct, Jackler's superiors pressured him to retract his report and to write a false one. Jackler refused and was subject to retaliation. The district court dismissed Jackler's § 1983 claim, finding that the filing of Jackler's report was part of his job duties and so there was no protected speech. The Second Circuit reversed.
The Jackler Court discussed at length the fact that there was a civilian analogue to Jackler's speech. It likened Jackler's report to the civic equivalent of participating in an investigation. The Court noted that, when one gives evidence to law enforcement pursuant to an investigation, regardless whether that person is a public employee or ordinary citizen, that person has a legal obligation to give truthful evidence. It emphasized that the failure to give truthful evidence subjects the participant-again, whether employee or citizen-to criminal
9

Case 1:12-cv-01354-PAE Document 18 Filed 04/12/12 Page 10 of 12

liability. "Thus, a citizen who has truthfully reported a crime

has the indisputable right to reject pressure from the police to

have him rescind his accusation and falsely exculpate the accused. H 658 F.3d at 241. Bearing these realit s in mind,

the Court reasoned that Jackler "had a strong First Amendment interest in refusing to make a report that was dishonest. H 658

F.3d at 240.

As stated above, Matthews appears to believe that, after

Jackler, regardless whether he spoke pursuant to his job duties,

because his speech had a civilian analogue, it is protected.

The Court disagrees. The Jackler Court was careful in

characterizing the speech at issue there, defining it as

Jackler's refusal to follow his superiors' instructions to

retract his truthful report and to speak falsely, not as the

filing of the Report; the latter would have been an act

speech that was simply pursuant to Jackler's duties. The

refusal to retract a true statement and issue a false one,

however, was only related to his job duties. See id. at 241

("In the context of the demands that Jackler retract his

truthful statements and make statements that were false, we

conclude that his refusals to accede to those demands

constituted speech activity that was significantly different

from the mere filing of his initial Report.H) The distinction

is key.

Weintraub, 593 F.3d at 203 (noting that "[t]he

10

Case 1:12-cv-01354-PAE Document 18 Filed 04/12/12 Page 11 of 12

First Amendment protects some expressions related to the

speaker's job," but "[w]hen a public employee speaks pursuant to

employment responsibilities,

. there is no relevant analogue

to speech by citizens who are not government employees"

(emphasis added) (internal quotation marks omitted) (citing

Garcetti, 547 U.S. at 421, 424)). As discussed, the Court finds

that Matthews' speech was made pursuant to his job

responsibilities, as the Second Circuit and Supreme Court have

construed that term, and so Jackler is inapposite.

The Court also believes that Matthews misconceives how the

presence of civilian analogue bears on the question of citizen

versus employee speech. It is not, as Matthews contends, that

the presence of a civilian analogue necessarily confers First

Amendment protection, but rather the reverse-when a public

employee engages in citizen speech, it is unavoidable that there

will be some civilian analogue to his speech. After all,

citizen speech is that which is made "outside the course of

performing [one's] official duties," in other words, speech made

as an ordinary citizen. See Garcetti, 547 U.S. at 423

("Employees who make public statements outside the course of

performing their official duties retain some possibility of First Amendment protection because that is the kind of activity

engaged in by citizens who do not work for the government."

(emphasis added)). It follows, then, that if a public employee

11

Case 1:12-cv-01354-PAE Document 18 Filed 04/12/12 Page 12 of 12
is speaking "pursuant to" his duties , there is no civilian analogve to that speech. Jackler is consistent with that principle and neither itt nor the balance of the case law , suggests that a civilian analogue is sufficient to establish a First Amendment right.
CONCLUSION For the foregoing reasons t the Cityt s Motion to Dismiss is GRANTED. The clerk of the court is directed to terminate the motion at docket number 11.

SO ORDERED:

lf~lL
BARBARA s. JONES (j
UNITED STATES DISTRICT JUDGE

Dated:

New York t New York April 12t 2012

12

 
 CCasaes:e112:-1126-2c2v-01D35o4c-uPmAeEnt:D6o0cumPeangte3:01 Fi1le2d/1192/2/1091/212 P7a9g8e0717of 4 4
N.Y.S.D. Case # 12-cv-1354(BSJ)

MANDATE 12-1622-cv Matthews v. City of New York
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THISCOURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOC UMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUSTSERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 28th day of November, two thousand twelve.

PRESENT: REENA RAGGI,

USDC SDNY

PETER W. HALL,

DOCUMENT

SUSAN L. CARNEY,

ELECTRONICALLY FILED

Circuit Judges.

DOC #: _________________

----------------------------------------------------------------------- DATE FILED: 1_2_/_1_9_/2_0_1_2______

CRAIG MATTHEWS,

Plaintiff-Appellant,

v.

No. 12-1622-cv

CITY OF NEW YORK, RAYMOND KELLY, as

Commissioner of the New York City Police Departm ent,

JON BLOCH, a deputy inspector in the New York City

Police Department, MARK SEDRAN, a lieutenant in the

New York City Police Department,

Defendants-Appellees.

-----------------------------------------------------------------------

APPEARING FOR APPELLANT:

CHRISTOPHER DUNN (Arthur Eisenberg, on

the brief), New York Civil Liberties Union

Foundation, New York, New York.

MANDATE ISSUED ON 12/19/2012

CCasaes:e112:-1126-2c2v-01D35o4c-uPmAeEnt:D6o0cumPeangte3:02 Fi1le2d/1192/2/1091/212 P7a9g8e0727of 4 4

APPEARING FOR APPELLEES:

MARTA B. ROSS, (William S.J. Fraenkel, Edward F.X. Hart, on the brief ), Assistant Corporation Counsel, for Michael Cardozo, Corporation Counsel of the City of New York, New York, New York.

Appeal from a judgment of the United States District Court for the Southern District of New York (Barbara S. Jones, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgm ent entered on April 23, 2012, is VACATED and the case is REMANDED.
Plaintiff Craig Matthews, a New York City police officer, appeals fromdismissal of his First Amendment retaliation claims against his em ployer, the City of New York, and individual supervisors. We review de novo a dismissal under Fed. R. Civ. P. 12(b)(6), accepting all factual allegations in the com plaint as true and drawing all reasonable inferences in the plaintiff’s favor. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012). To survive a m otion to dism iss, however, the complaint must state a claimto relief that is plausible on its face, which requires the plaintiff to plead facts perm itting “the reasonable inference that the defendant is lia ble for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). In applying these standards here, we assum e the parties’ fam iliarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to vacate.

2

CCasaes:e112:-1126-2c2v-01D35o4c-uPmAeEnt:D6o0cumPeangte3:03 Fi1le2d/1192/2/1091/212 P7a9g8e0737of 4 4
“To state a First Amendment retaliation claim, a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech.” Cox v. Warwick Valley Cent. Sch. Dist. , 654 F.3d 267, 272 (2d Cir. 2011). Where the plaintiff is a public employee, his ability to sue for such First Amendment retaliation further requires that he have s poken “as a citizen addr essing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “[Wh] en public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Id. at 421.
Matthews contends that the district court erred in concluding as a matter of law that his speech to precinct commanding officers about the quota systemimposed on himand other officers by direct supervisors was pursuant to official duties and therefore not protected by the First Amendment against retaliation. Matthews alleges that he told his com manding officer on multiple occasions in 2009 that a quota systemexisted. Matthews further alleges that, in 2011, he told a new commanding officer not only that a quota systemexisted, but also that it “was causing unjustified stops, arrests, and sum monses because police officers felt forced to abandon their discretion in order to meet their numbers.” Compl. ¶ 28. He also told the commanding officer that “the quota systemwas having an adverse effect on the precinct’s relationship with the community.” Id.
3

CCasaes:e112:-1126-2c2v-01D35o4c-uPmAeEnt:D6o0cumPeangte3:04 Fi1le2d/1192/2/1091/212 P7a9g8e0747of 4 4
Accepting Matthews’s allegations as true, it is undisputed that his speech addressed a matter of public concern. S ee Jackler v. Byrne , 658 F.3d 225, 236–37 (2d Cir. 2011) (holding that speech pertaining to police m isconduct is a matter of public concern). That conclusion is only reinforced by the fact that, by 2011, the quota system he alleged existed violated New York law. SeeN.Y. Labor Law § 215-a (McKinney 2012) (effective Aug. 30, 2010). The record in this case is not yet sufficiently developed, however, to determine as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos, 547 U.S. at 424–26 (distinguishing between giving em ployees an internal forum for their speech and making certain speech a duty of employment). As we have recently observed, “whether a public employee is speaking pursuant to h[is] official duties is not susceptible to a brightline rule.” Ross v. Breslin , 693 F.3d 300, 306 (2d Cir. 2012). The m atter may require some inquiry into “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Id.Here, some discovery as to these matters is necessary before it can be decided whether Matthews can or cannot pursue a First Amendment retaliation claim in this case.
Accordingly, the judgm ent of the district court is VACATED and the case REMANDED for further proceedings consistent with this order.
FOR THE COURT: CATHERINE O’HAGAN WOLFE, Clerk of Court
4

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------------------------------------------ X

:

CRAIG MATTHEWS,

:

:

Plaintiff,

:

:

-v-

:

:

CITY OF NEW YORK, RAYMOND KELLY, JON

:

BLOCH, and MARK SEDRAN,

:

:

Defendants.

:

:

------------------------------------------------------------------------X

12 Civ. 1354 (PAE) OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiff Craig Matthews, a member of the New York City Police Department (“NYPD”),

brings this action pursuant to 42 U.S.C. § 1983 against the City of New York, NYPD

Commissioner Raymond Kelly, Deputy Inspector Jon Bloch, and Lieutenant Mark Sedran

(collectively, “defendants” or “the City”). Officer Matthews alleges that defendants violated his

First Amendment rights when they, allegedly, retaliated against him after he raised concerns to

the precinct’s commanding officers about a policy being implemented by mid-level supervisors

in his precinct. That policy allegedly required each patrol officer to meet a quota of arrests, stop-

and-frisks, and summonses each month. Defendants move for summary judgment. They argue

that Officer Matthews’ speech is unprotected by the First Amendment, because he was speaking

pursuant to his official employment duties when he reported the quota system to his commanding

officers. For the reasons that follow, defendants’ motion for summary judgment is granted.

I. Background and Undisputed Facts1
Officer Matthews has been employed by the NYPD for 16 years. Matthews Decl. ¶ 4;
Matthews Dep. 9. During the last 14 years, he has been assigned to the 42nd Precinct. Matthews
Decl. ¶ 5; Matthews Dep. 9. His current rank is “Police Officer.” Matthews Decl. ¶ 3.
A. Officer Matthews’ Speech
The parties have stipulated that, for purposes of resolving this motion, Officer Matthews’
speech occurred in the manner alleged in the Complaint. See Def. Br. 1; Pl. Br. 6 n.1; Def. Reply
Br. 1 n.1.
The Complaint alleges that, beginning in 2008, mid-level supervisors in the 42nd Precinct
“developed and implemented a system of quotas mandating numbers of arrests, summonses, and
stop-and-frisks.” Compl. ¶ 2. To enforce these quotas, supervisors developed a system that
assessed officers using color-coded reports that identified who was meeting, partially meeting,
and not meeting his or her quotas. Id. The quota system in Officer Matthews’ squad was further
refined by his platoon commander, Lieutenant Mark Sedran. Lieutenant Sedran created a system
that awarded points for “good summonses”—those that addressed hazardous behavior, such as
use of a cell phone while driving—and subtracted points for non-hazardous summonses. Id.
1 The Court’s account of the underlying facts of this case is drawn from the parties’ submissions in support of and in opposition to the instant motion, including: the Declaration of William S.J. Fraenkel in Support of Defendants’ Motion for Summary Judgment (“Fraenkel Decl.”) (Dkt. 37), and attached exhibits; the Affidavit of Officer Craig Matthews (“Matthews Decl.”) (Dkt. 41); the Declaration of Erin Beth Harrist in Opposition to Defendants’ Motion for Summary Judgment (“Harrist Decl.”) (Dkt. 40), and attached exhibits; the Declaration of William S.J. Fraenkel in Further Support of Defendants’ Motion for Summary Judgment (“Fraenkel Reply Decl.”) (Dkt. 46); the deposition of Officer Matthews, excerpts of which are attached as Exhibit D to the Fraenkel Declaration and Exhibit 1 to the Harrist Declaration (“Matthews Dep.”); the deposition of the City’s Rule 30(b)(6) witness, John Beirne, excerpts of which are attached as Exhibit C to the Fraenkel Declaration and Exhibit 6 to the Harrist Declaration (“Beirne Dep.”); the deposition of Jon Bloch, Harrist Decl. Ex. 3 (“Bloch Dep.”); and the deposition of Timothy Bugge, Harrist Decl. Ex. 4 (“Bugge Dep.”).
2

¶ 18. Officers were allegedly under constant pressure to meet these quotas and were subject to punishment for not doing so. Id. ¶ 2.
Officer Matthews believed that the quota system violated the NYPD’s core mission, and he was “unwilling to participate in a practice that would damage the communities he was entrusted to protect.” Id. ¶ 19. Accordingly, in February 2009, Officer Matthews met with the precinct’s commanding officer at the time, then-Captain Timothy Bugge, and informed Captain Bugge about the existence of the quota system. Id. ¶ 20. In March and April 2009, with the quota system having persisted, Officer Matthews met again with Captain Bugge. Id. In May 2009, Officer Matthews also reported the quota system to an unnamed precinct executive officer. Id. In June 2009, Captain Bugge told Officer Matthews that he had spoken with Lieutenant Sedran and that “the situation was handled.” Id. ¶ 21. Nevertheless, Officer Matthews alleges, the quota system continued in secret. Id. In October 2009, Captain Bugge informed Officer Matthews that he would not interfere with how supervisors ran their platoons. At this point, Officer Matthews alleges, he concluded that it was futile to raise his concerns with Captain Bugge any further. Id. ¶ 22.2
In January 2011, Officer Matthews met with then-Captain Jon Bloch, who had replaced Captain Bugge in May 2010 as the precinct’s commanding officer. See Bloch Dep. 13; Bugge Dep. 13. The meeting took place in Captain Bloch’s office, with two other officers present. Compl. ¶ 28. Officer Matthews explained his concerns that the quota system was (1) “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and (2) “having an adverse effect on the precinct’s
2 The Complaint does not specify where Officer Matthews’ meetings with Captain Bugge occurred, but implies that they occurred in the precinct.
3

relationship with the community.” Id. Officer Matthews has attested that when he raised these
concerns, he did not identify any particular unjustified stop or arrest. Matthews Decl. ¶ 13.
Officer Matthews alleges that, as a result of his speech, he was subject to a campaign of retaliation. Id. ¶¶ 21, 25–27, 32–34, 36–38.3
B. Procedural History
On February 23, 2012, Officer Matthews filed the Complaint, which brings a § 1983
claim based on alleged infringement of his First Amendment rights, and a parallel claim under
the New York Constitution. Dkt. 1; see infra note 7. On March 16, 2012, defendants moved to
dismiss, arguing that Officer Matthews’ speech was unprotected because it was made pursuant to
his official employment duties—to wit, his inherent duty to enforce the law—and therefore that
his § 1983 claim must fail. Dkt. 12. Honorable Barbara S. Jones, to whom this case was then
assigned, granted defendants’ motion. She reasoned: “Matthews’ complaints to his supervisors
are consistent with his core duties as a police officer, to legally and ethically search, arrest, issue
summonses, and—in general—police.” Matthews v. City of N.Y., No. 12 Civ. 1354 (BSJ), 2012
WL 8084831, at *3 (S.D.N.Y. Apr. 12, 2012).
On appeal, the Second Circuit vacated that dismissal. It stated:
The record in this case is not yet suffici ently developed . . . to determ ine as a matter of law whether Officer Matthews spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them. See Garcetti v. Ceballos , 547 U.S. [410,] 424–26 [(2006)] (distinguishing between giving employees an internal forum for their speech and m aking certain speech a duty of e mployment). As we ha ve recently observed, “whether a public
3 Officer Matthews’ allegations of retaliation are not at issue on this motion, which, for the reasons explained below, is based solely on defendants’ argument that Officer Matthews did not engage in constitutionally protected speech. As alleged, the acts of retaliation against Officer Matthews consisted of: punitive assignment; denial of overtime and leave; separation from his career-long partner; humiliating treatment; and negative performance reviews. See Compl. ¶¶ 21, 25–27, 32–34, 36–38.
4

employee is speaking pursuant to h[is] of ficial duties is not suscep tible to a brightline rule.” Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). The m atter may require som e inquiry into “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationsh ip between the two.” Id. Here, som e discovery as to the se matters is nece ssary before it can be decided whether Matthews can or cannot pursue a First Amendment retaliation claim in this case. Matthews v. City of N.Y., 488 F. App’x 532, 533 (2d Cir. 2012) (summary order). Upon remand, the case was reassigned to this Court. On December 17, 2012, the Court held a conference with the parties to discuss fashioning a targeted discovery plan keyed to the factual issue identified by the Second Circuit. The parties thereupon submitted, and the Court approved, a joint case management plan providing for plenary document discovery, but limiting depositions to witnesses with knowledge of Officer Matthews’ job responsibilities as they relate to the speech at issue. Dkt. 29. On May 20, 2013, as contemplated at the December 17, 2012 conference, defendants filed a motion for summary judgment. They argued, this time based on the factual record developed in discovery, that Officer Matthews’ speech was made pursuant to his official employment duties. See Dkt. 36 (“Def. Br.”). On June 7, 2013, Officer Matthews opposed that motion. Dkt. 39 (“Pl. Br.”). On June 14, 2013, defendants filed a reply. Dkt. 45 (“Def. Reply Br.”). On July 19, 2013, the Court heard argument. C. Officer Matthews’ Employment Duties As contemplated by the Second Circuit in its summary order and this Court in its case management plan, discovery focused on the nature of Officer Matthews’ employment duties. The evidence adduced on that point is as follows.
5

Section 202-21 of the NYPD Patrol Guide4 sets forth the “Duties and Responsibilities” of
a Police Officer. See Harrist Decl. Ex. 2. It lists 20 specific duties. It does not, however,
describe, or purport to describe, the day-to-day activities of a Police Officer. Officer Matthews
attested that his regular activities, which occupy 95% of his time on the job, involve:
(1) going on radio runs, which are respon ses to 911 calls in the precinct, in addition to ‘311’ requests, and requests that com e through the station house telephone switchboard, (2) patrolling the str eets and vertical pa trolling of local housing, (3) filling out complaint reports and additional forms relating to criminal activity, lost property, and m issing persons, including interviewing witnesses, (4) responding to traffic accidents, (5) transpor ting prisoners to and from the precinct house, courts, and hospitals, and (6) doing community visits with local businesses and organizations.
Matthews Decl. ¶ 6; see also Matthews Dep. 10 (“Q: [H]ow would you describe your job, the job
of a police officer? A: I enforce the law.”).
Particularly relevant here, Section 207-21 of the Patrol Guide addresses the duty of a
member of the NYPD to report allegations of “corruption or other misconduct against members
of the service.” It states, in pertinent part:
All members of the service m ust be incorruptible. An honest m ember of the service will not tolerate members of the service who engage in corruption or other misconduct. All members of the service have an absolute duty to report any corruption or other misconduct, or allega tion of corruption or other misconduct, of which they become aware.
Fraenkel Decl. Ex. B (emphasis added). Section 207-21 defines “corruption/other misconduct”
as “[c]riminal activity or other misconduct of any kind including the use of excessive force or
perjury that is committed by a member of the service whether on or off duty.” Id. It also
4 The Patrol Guide “serves as a guide for ALL members of the service.” Fraenkel Reply Decl. Ex. E (Foreword to the Patrol Guide) (emphasis in original). It “does not contain distinct instructions for every situation that may be encountered in the field,” but its procedures “serve as performance expectations.” Id. Matthews testified that he does not consider the Patrol Guide to be optional, and acknowledged that were he to not follow a provision of the Patrol Guide he would receive “[a]nything from a warning and admonish [sic] to a command discipline.” Matthews Dep. 10–11.
6

provides a procedure for reporting such misconduct to the Internal Affairs Bureau. It further
states that “[f]ailure to report corruption, other misconduct, or allegations of such act is, in itself,
an offense of serious misconduct and will be charged as such.” Id.
In deposition testimony, the parties offered differing interpretations of the extent to which
an officer has a duty to report “misconduct” under Section 207-21. Officer Matthews testified
that his understanding of that provision is that he is not obligated to report every violation of the
Patrol Guide, only those that amount to criminal misconduct, such as corruption, bribery, or
excessive force. See Matthews Dep. 14, 19, 21, 24–25, 33, 37, 39. He testified that he acquired
that understanding during his training at the police academy, id. at 24, 34, but he could not recall
more specifically where in that training he learned of that limit on his duty to report, id. at 39.
Commissioner John Beirne, the City’s Rule 30(b)(6) witness, offered a different understanding
of Section 207-21. He testified that whether an officer has a duty to report a particular event or
practice generally turns on whether the officer reasonably believes it to be misconduct, and on
the officer’s “common sense.” See Beirne Dep. 26–27, 46–50, 55, 62–63. However, he stated,
some actions, such as corruption, criminal activity, and excessive force, must be reported regardless of any subjective belief on the part of the individual officer. Id. at 50, 55.5
Commissioner Beirne, Captain Bloch, and Captain Bugge all testified that a Police
Officer has no duty to monitor the conduct of his supervisors. Beirne Dep. 22; Bloch Dep. 13;
Bugge Dep. 25. Rather, that job falls to the Integrity Control Officer—an officer with the
5 Commissioner Beirne also testified that although some violations of the Patrol Guide’s procedures would be misconduct that must be reported, he was “reluctant to say” that all violations of the Patrol Guide must be reported, because it is a “very voluminous document” and “[t]here probably are some things that don’t necessarily have to be reported.” Beirne Dep. 48– 49. Commissioner Beirne testified that a numerical quota system, in and of itself, is not misconduct that an officer is obligated to report. Id. at 36–37, 65. However, if that quota resulted in unlawful activity, such as unjustified stops and arrests, it would need to be reported to the Internal Affairs Bureau. Id. at 65, 67, 77.
7

specific duty of monitoring the conduct of personnel in the precinct, including supervisors, and reporting any misconduct to Internal Affairs. Beirne Dep. 23; Bloch Dep. 21; Bugge Dep. 34– 35; see also Harrist Decl. Ex. 11 (Patrol Guide Section 202-15, setting forth duties of the Integrity Control Officer). Officer Matthews was never an Integrity Control Officer. Matthews Decl. ¶ 12.
Officer Matthews attests that, aside from the specific occasions on which he raised his concerns about the quota system, he did not regularly meet with, or make written or oral reports to, the 42nd Precinct’s commanding officers. Id. ¶¶ 8–11. Consistent with this, Captain Bloch testified that he had no regularly scheduled meetings and received no regular reports from Officer Matthews; their interactions were “minimal.” Bloch Dep. 20. He further testified that, although Captain Bloch would make small talk with Police Officers and speak to them in passing, he would not have regular meetings with any Police Officers in his command. Id. at 15– 16. Captain Bugge similarly testified that he did not have regularly scheduled meetings with Officer Matthews, nor with any Police Officers in his command. Bugge Dep. 31–32, 34.
D. Avenues for Civilian Complaints Discovery also focused on the degree to which civilians could have made complaints to the commanding officers of the 42nd Precinct in the same manner that Officer Matthews did.6 One duty of a commanding officer is to meet with civilians to receive complaints or other feedback about police conduct. Beirne Dep. 24–25; Bloch Dep. 22, 48; Bugge Dep. 39; see also Harrist Decl. Ex. 7 (Patrol Guide section 202-09, setting forth the duties of a commanding officer, including to “[m]aintain as much personal contact as possible with business, civic . . . and other groups or media with community influence and interests to keep abreast of community
6 The Second Circuit has considered this factor in determining whether an employee’s speech was made pursuant to his official duties. See infra Part IV(B)(3).
8

tensions and trends”). For Officer Matthews’ precinct, this includes attending monthly meetings of the 42nd Precinct’s Community Council. Bloch Dep. 24; Bugge Dep. 45; see also Harrist Decl. Ex. 8–9 (attendance logs and minutes from Community Council meetings). These meetings typically take place in the precinct and are open to members of the public. Bloch Dep. 25; Bugge Dep. 45–46. At these meetings, community members and representatives of community organizations are free to raise concerns about policing practices. Bloch Dep. 25; Bugge Dep. 46–47. Captain Bloch testified that he personally attended approximately two dozen such meetings during his three years as commanding officer of the 42nd Precinct. Bloch Dep. 24.
In addition to the Community Council meetings, members of the community, under some circumstances, may contact commanding officers and meet with them in person, including at the precinct, to discuss concerns about policing practices. Bloch Dep. 36, 39, 41; Bugge Dep. 64– 65; see also Harrist Decl. Ex. 8, at NYPD 188 (Community Council meeting minutes, noting that “Inspector Bugge commented that he welcomes the community to call him and discuss problems, but is concerned about complaints that have never been brought to him”). Captain Bloch testified that such meetings happened “rarely.” Bloch Dep. 41. However, Captain Bugge testified that one to three times per month he meets with members of the community, such as local politicians and leaders of religious or civic organizations, to discuss policing issues. Bugge Dep. 66. Some of these meetings took place in his office, and others in the Community Affairs Office or in a common area of the stationhouse. Id. Such meetings were typically set up through the precinct’s Community Affairs Officer, a point of first contact for community members. Id. at 65; Bloch Dep. 39. For instance, on one occasion, a prominent reverend in the community— who was an advisor to the Community Council board and visited the Community Affairs Office
9

“a couple of times a week”—met with Captain Bugge in his office to discuss his mistreatment during a stop. Bugge Dep. 58–59. II. Legal Standard
To prevail on a motion for summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over “facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). III. Applicable Legal Framework
“To state a First Amendment retaliation claim, a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse
10

action against him; and (3) there was a causal connection between this adverse action and the protected speech.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011); accord Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 139, 140 (2d Cir. 2008).7 Here, the Court only addresses the first element: whether Officer Matthews’ speech was protected.
The Supreme Court has articulated a two-step inquiry to determine whether speech by a public employee enjoys constitutional protection. “The first requires determining whether the employee spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568 (1968)); accord Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011). If the answer is yes, then the possibility of a First Amendment claim arises; if the answer is no, it does not. “The [second] question [is] whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti, 547 U.S. at 418 (citing Pickering, 391 U.S. at 568); accord Anemone, 629 F.3d at 119 (referring to this second inquiry as the “Pickering defense”). The first of these two inquiries in turn consists of two separate questions: “(1) whether the subject of the employee’s speech was a matter of public concern and (2) whether the employee spoke ‘as a citizen’ rather than solely as
7 Officer Matthews has also alleged a violation of Article I, Section 8 of the New York State Constitution. Compl. ¶ 43. However, this claim is subject to the same analysis as his free speech claims under the First Amendment. See Carter v. Incorporated Vill. of Ocean Beach, 693 F. Supp. 2d 203, 212 (E.D.N.Y. 2010), aff’d, 415 F. App’x 290 (2d Cir. 2011); Almontaser v. N.Y.C. Dep’t of Educ., No. 07 Civ. 10444 (SHS), 2009 WL 2762699, at *2 n.1 (S.D.N.Y. Sept. 1, 2009); Hous. Works, Inc. v. Turner, 179 F. Supp. 2d 177, 199 n.25 (S.D.N.Y. 2001).
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an employee.” Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011) (citing Garcetti, 547 U.S. at 420–22). The Court addresses these two questions here.8 IV. Discussion
A. Whether Officer Matthews’ Speech Addressed a Matter of Public Concern Whether speech addresses a matter of public concern is a question of law “to be answered by the court after examining the ‘content, form, and context of a given statement, as revealed by the whole record.’” Jackler, 658 F.3d at 235 (quoting Connick v. Myers, 461 U.S. 138, 147–48 & n.7 (1983)). Speech is a matter of public concern when it is “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146; accord Jackler, 658 F.3d at 236 (“[A] topic is a matter of public concern for First Amendment purposes if it is ‘of general interest,’ or ‘of legitimate news interest,’ or ‘of value and concern to the public at the time’ of the speech.” (citation omitted)). “Speech that, although touching on a topic of general importance, primarily concerns an issue that is personal in nature and generally related to the speaker’s own situation, such as his or her assignments, promotion, or salary, does not address matters of public concern.” Jackler, 658 F.3d at 236 (citation and alteration omitted); see also Sousa v. Roque, 578 F.3d 164, 170–74 (2d Cir. 2009) (surveying Second Circuit precedent on whether speech is a matter of public concern). The Second Circuit has consistently held that the lawfulness of public officials’ actions— including, specifically, police misconduct—is a matter of public concern. See, e.g., Jackler, 658 F.3d at 236–37 (holding that police malfeasance consisting of the use of excessive force is a matter of public concern, and noting that “[e]xposure of official misconduct, especially within the police department, is generally of great consequence to the public” (citation omitted));
8 Because the Court finds, for the reasons that follow, that Officer Matthews spoke as a public employee and not as a citizen, the Court has no occasion to address the “Pickering defense” here.
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Skehan, 465 F.3d at 106 (“Plaintiffs’ speech plainly concerned issues of public concern: misfeasance within the police department and allegations of an ongoing cover-up and an attempt to silence those who spoke out against it.”); Hoyt v. Andreucci, 433 F.3d 320, 330 (2d Cir. 2006) (sheriff disciplining corrections officers in an unlawful manner was a matter of public concern). That standard is met here. In its decision remanding this case to this Court, the Second Circuit recognized that, as to the speech by Officer Matthews described in the Complaint, “it is undisputed that this speech addressed a matter of public concern.” Matthews, 488 F. App’x at 533.9
B. Whether Officer Matthews Spoke as a Citizen or an Employee The more difficult question is the one that the Second Circuit directed be addressed on remand: whether, following discovery on this point, the facts permit the Court to find, as a matter of law, that Officer Matthews “spoke pursuant to his official duties when he voiced the complaints made here in the manner in which he voiced them.” Matthews, 488 F. App’x at 533. The Court has carefully reviewed the undisputed facts. Considering those facts, viewing the facts that are disputed in the light most favorable to Officer Matthews, and applying apposite case law, the Court finds that Officer Matthews spoke solely as an employee.
1. Public Employee Speech and Garcetti The Supreme Court long ago held that “a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick, 461 U.S. at 142 (collecting cases); accord Garcetti, 547 U.S. at 417; Lewis v. Cowen, 165 F.3d 154, 158 (2d Cir. 1999) (“It is by now well established that public employees do not check all of their First Amendment rights at the door upon accepting public employment.”). But
9 At argument, the City conceded that if Officer Matthews’ speech occurred as alleged, it necessarily touched on a matter of public concern.
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the First Amendment rights of a public employee are not absolute: “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti, 547 U.S. at 418. As the Supreme Court has explained, that is because “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Id. And, because public employees often occupy positions of trust in society, their expression has the potential to “contravene governmental policies or impair the performance of governmental functions.” Id. at 419. At the same time, a public employee does not forfeit the right to free expression that he or she would have absent that job: “[A] citizen who works for the government is nonetheless a citizen.” Id.
The Supreme Court’s employee speech cases further reflect that the interests at stake are not merely the speech rights of public employees and the functional needs of public employers— the interests of the public are also implicated. In Pickering, which involved a teacher speaking out against the school board’s allocation of funds between educational and athletic programs, the Court recognized that “[t]eachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” Pickering, 391 U.S. at 572. The Court therefore recognized the “necessity for informed, vibrant dialogue in a democratic society” and the “widespread costs [that] may arise when dialogue is repressed.” Garcetti, 547 U.S. at 419 (describing Pickering); accord San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam) (“Were [public employees] not able to speak on [the operations of their employers], the community would be deprived of informed opinions on important public issues.”). As the Supreme Court
14

has put the point, when it comes to the speech of public employees, “[t]he interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” Roe, 543 U.S. at 82. Synthesizing these considerations, the Court has held that “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419.
The line of cases most apposite to Officer Matthews’ speech begins with Garcetti. There, the Supreme Court applied these principles to employee speech that, undisputedly, occurred in the course of an employee’s performance of his day-to-day job duties. In that case, a deputy district attorney alleged that he was punished for writing a disposition memo recommending dismissal of a pending criminal prosecution due to his concerns that an affidavit used to obtain a critical search warrant contained inaccuracies. Id. at 414–15. In finding this speech unprotected, the Supreme Court emphasized that it was not dispositive that the plaintiff expressed his views only inside his office, rather than publicly, nor that his speech concerned the subject matter of his employment. Id. at 420–21. To deny constitutional protection based on these factors, the Court recognized, would contravene its teachings that employees do not lose all constitutional protection for speech made at work, see Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979), and that public employees have important perspectives to lend to public discourse about matters of public concern relating to their employment, see Pickering, 391 U.S. at 572.
Instead, the Court stated, the “controlling factor” in its analysis was that the plaintiff’s expressions had been “made pursuant to his duties as a calendar deputy.” Garcetti, 547 U.S. at 421. That is, the plaintiff “wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do,” and in doing so he “spoke as a prosecutor fulfilling a
15

responsibility to advise his supervisor about how best to proceed with a pending case.” Id. Therefore, the Court held, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id.
This holding, the Court explained, was consistent with its precedents governing employee speech, because the holding did not infringe any right to speak that the plaintiff would have had had he never become a public employee—i.e., as private citizen: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” Id. at 421–22. The plaintiff thus stood in contrast to the teacher in Pickering, whose letter to the local newspaper was not part of his job function and was the sort of letter any citizen could have written: An ordinary citizen could not have written an official memo to the plaintiff’s supervisors concerning the proper disposition of a pending criminal case. Id. at 422. By contrast, to treat the plaintiff’s official communications to his supervisor as protected by the First Amendment protections would “constitutionalize the employee grievance.” Id. at 420 (quoting Connick, 461 U.S. at 154).
In so ruling, the Supreme Court in Garcetti rejected the concern (articulated by a lower court) that so holding would incent public employees to raise concerns publicly, not through ordinary in-house channels where they would be more likely to lack First Amendment protection, thereby causing greater disruption to the public employer’s operations. The relevant point, the Court stated, is that “[e]mployees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government.” Id. at
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423. And, in practice, a public employer that wishes to encourage employees to air their concerns privately can create internal procedures for receiving such criticism. Id. at 424.
Significant here, the parties in Garcetti did not dispute, as a factual matter, that the plaintiff had written his memo pursuant to his official employment duties. Accordingly, the Court had “no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” Id. Since Garcetti, however, several cases have reached the Second Circuit in which there was serious debate whether the speech at issue fell within the scope of the employee’s duties. These precedents are instructive, indeed, decisive here.
2. The Second Circuit’s Post-Garcetti Precedents As Judge Calabresi has observed, given the facts and discussion in Garcetti, Garcetti was capable of being read narrowly, specifically, to resolve only the issue presented when “the employee is required to make such speech in the course of fulfilling his job duties.” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 593 F.3d 196, 208 (2d Cir. 2010) (Calabresi, J., dissenting) (emphasis added). In that circumstance, such speech is properly viewed as having been made pursuant to an employee’s official duties, as it is fair to say both that the employer “‘commissioned or created’ the speech,” and that the employer “relies on the speech made by the employee.” Id. (quoting Garcetti, 547 U.S. at 422, 423) (emphasis in original). However, the cases that have arisen in the Second Circuit following Garcetti have tended to involve fact patterns beyond the scenario of required speech presented in Garcetti. Accordingly, the Second Circuit, applying the principles discussed by the Supreme Court, has extracted from Garcetti a broader understanding of the speech made pursuant to an employee’s official duties.
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In Weintraub, the plaintiff, a public school teacher, had filed a grievance with the teacher’s union over his supervisor’s decision not to discipline a student who had thrown a book at the plaintiff on two occasions. Id. at 198–99. A divided panel of the Second Circuit held that the teacher’s grievance was unprotected, because he had spoken pursuant to his official duties. Id. at 201. The Court rejected the teacher’s argument that his speech was protected because it was not required by, or included in, his official job description: “Weintraub’s grievance was pursuant to his official duties because it was part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher—namely, to maintain classroom discipline.” Id. at 203 (citation omitted). The Court also noted that the teacher had spoken via a channel—a union grievance—unavailable to citizens generally. Id. at 203–04. Judge Calabresi dissented, arguing that Garcetti should be limited to required employee speech. Id. at 205–09.
In Ross v. Breslin, 693 F.3d 300 (2d Cir. 2012), a payroll clerk for the local school district had reported financial malfeasance—specifically, improper disbursements made without the requisite board approval—to the district’s superintendent and, when he failed to act, to the board of education. The Second Circuit held the plaintiff clerk’s speech unprotected. In deposition testimony, the clerk had stated that if there was a mistake with pay requisition, her duty was to “bring it to the appropriate person’s attention.” Id. at 306 (alteration omitted). Accordingly, the Court held, “reporting pay irregularities to a supervisor was one of her job duties.” Id. The Court rejected plaintiff’s argument that she had spoken as a private citizen because she reported the misconduct to the superintendent and the board, rather than to her direct supervisor: “Taking a complaint up the chain of command to find someone who will take it seriously does not, without more, transform her speech into protected speech made as a private citizen.” Id. at 307 (citation and alteration omitted). Nor was it dispositive that plaintiff’s letter
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to the board began: “Although I am an employee of the School District, I am writing to you . . . on a personal note out of complete frustration with the District’s administration.” Id. at 303. A plaintiff’s characterization of her own speech, the court held, is not dispositive. Id. at 307.
In Looney v. Black, 702 F.3d 701 (2d Cir. 2012), a town building official had informed a town resident about his concern that the town’s use of a wood-burning stove, and the resulting discharge, constituted a public health concern. A divided panel of the Second Circuit held that the building official’s speech—the precise content and context of which were vaguely alleged in the Complaint—was unprotected. Id. at 712. The Court noted that the plaintiff had alleged that his job duties included “administration and enforcement of the State Building Code at the municipal level, including the organization and conduct of the building advisory, inspection and enforcement program” and that he kept the safety of the townspeople “uppermost in mind” in the performance of these duties. Id. Accordingly, the Court stated, the “only sensible way to interpret [plaintiff’s] allegations is that he spoke on these issues because he was in an official position that required, or at least allowed, him to do so. It follows that these statements owed their existence to his position as the Building Official.” Id. (emphasis in original).10
This streak of victories for employers was interrupted in Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011). Jackler, a probationary police officer, had witnessed a fellow officer punch an arrestee in the face after the arrestee, who was handcuffed and seated in the back seat of a patrol car, insulted the officer. Id. at 230. After the arrestee filed a complaint, Jackler was directed by his supervisors to file a report as to what he had seen. His report corroborated the arrestee’s
10 Judge Droney dissented. He took issue with what he characterized as the majority’s holding that plaintiff’s speech was unprotected simply because it “owed its existence” to his job duties. Looney, 702 F.3d at 718. Judge Droney would have held that the speech also must have been made “in furtherance of those duties,” id. at 718 (emphasis in original) (quoting Ross, 693 F.3d at 308), and that it was premature to conclude, on the pleadings, that plaintiff’s speech was unprotected, id. at 720.
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account, i.e., that the other officer had used unnecessary force. Jackler alleged that his supervisors then pressured him to retract his truthful report and file a new report that would conceal his fellow officer’s misconduct, and retaliated against him when he refused to do so. Id. at 231. The district court reluctantly concluded that Garcetti and Weintraub compelled it to dismiss the complaint. See Jackler v. Byrne, 708 F. Supp. 2d 319, 324 & n.5 (S.D.N.Y. 2010). The Second Circuit, however, reversed, holding that Jackler’s speech was protected, because he was “not simply doing his job in refusing to obey those orders from the department’s top administrative officers and the chief of police.” Jackler, 658 F.3d at 242. The Court emphasized that Jackler’s speech had a “clear civilian analogue,” because “a citizen who has truthfully reported a crime has the indisputable right to reject pressure from the police to have him rescind his accusation and falsely exculpate the accused.” Id. at 241–42.
Officer Matthews relies on Jackler here. But although the two cases are superficially similar in that they both involve a police officer reporting police misconduct, the Second Circuit in Jackler pointedly described the protected speech as the refusal to retract the truthful report and file a false one. See id. at 240 (“Jackler had a strong First Amendment interest in refusing to make a report that was dishonest.”), 241–42 (“We conclude that Jackler’s refusal to comply with orders to retract his truthful Report and file one that was false [is protected speech].”). The Court did not address whether, let alone hold that, Jackler’s original, truthful report would have constituted protected speech had he been retaliated against on that basis. See id. at 234 (stating that the parties agreed that Jackler’s retaliation claim was based on his refusal to file the false report, not his filing of the truthful report), 241 (“In the context of the demands that Jackler retract his truthful statements and make statements that were false, we conclude that his refusals to accede to those demands constituted speech activity that was significantly different from the
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mere filing of his initial Report.”). But this latter scenario is presented here: Officer Matthews
made a series of truthful reports about his concerns; unlike Jackler, he was neither compelled to
retract those statements nor to file a false report. See Ross, 693 F.3d at 307–08 (distinguishing
Jackler on this basis).
In non-precedential summary orders, the Second Circuit has addressed two cases with far
more analogous facts to those here than Jackler, and ruled for the employer in each. In Carter v.
Incorporated Village of Ocean Beach, 693 F. Supp. 2d 203 (E.D.N.Y. 2010), part-time police
officers had complained to their supervisors about certain departmental practices that posed a
threat to public safety, including: hiring officers that were not properly certified; hiring civilians
as police dispatchers; permitting officers to drink alcohol while on duty; and instructing other
officers to chauffeur them home. The district court held the officers’ speech unprotected:
All of plaintiffs’ com plaints to their supe riors . . . related to their concerns about their ability to proper ly execute their duties a s police officers, as they expressed concern, inter alia, that the assignm ent of offi cers to chauffeur intoxicated officers left the [Ocean Beach Police Depa rtment] short-handed, that the hiring of uncertified officers and the retention of unqualified and/or corrupt officers affected their ability to pe rform their job assignm ents safely and that they were told not to issue summonses to cer tain individuals and businesse s. Plain tiffs’ speech in challenging the Ocean Beach de fendants’ alleged cover-ups of officer misconduct, including their com plaints to the Suffolk County District Attorney’s Office, was undertaken in the course of performing one of their core em ployment responsibilities of enforcing the law and, thus, was speech made pursuan t to their official duties. Moreov er, all of th e relevant speech reflected plaintiffs’ special knowledge about th e Ocean Beach defendants which was gained as a resu lt of plaintiffs’ position as police officers for those defendants based upon what plaintiffs’ [sic] observed or learned from their job.
Id. at 211. Accordingly, the district court granted summary judgment for defendants. The
Second Circuit affirmed. It stated: “Plaintiffs’ allegations establish no more than that they
reported what they believed to be misconduct by a supervisor up the chain of command—
misconduct they knew of only by virtue of their jobs as police officers and which they reported
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as ‘part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.’” Carter v. Inc. Vill. of Ocean Beach, 415 F. App’x 290, 293 (2d Cir. 2011) (summary order) (quoting Weintraub, 593 F.3d at 203).
Similarly, in D’Olimpio v. Crisafi, 718 F. Supp. 2d 340 (S.D.N.Y. 2010) (Rakoff, J.), an investigator in the New York State Department of Health’s Bureau of Narcotics Enforcement had complained to the Bureau’s program director that his immediate supervisor was, inter alia, violating suspects’ Miranda rights and performing “ill-conceived and dangerous” arrests and searches. The plaintiff investigator had also filed a workplace incident report and informed the Inspector General. Id. at 351. Observing that “Weintraub made clear that . . . ‘official duties’ are to be construed broadly,” the district court held, “not without reluctance,” that plaintiff’s speech was made pursuant to his official duties. Id. at 353. It observed that “the common theme of all these statements was that [the supervisor] was violating suspects’ rights and was not performing his job properly, and by implication that [the supervisor] was interfering with [plaintiff’s] ability to perform his own duties.” Id. Because it was a part of plaintiff’s duties to ensure that investigations and arrests of narcotics offenses be lawfully conducted, plaintiff’s speech was therefore “‘part-and-parcel of his concerns’ about his ability to ‘properly execute his duties’ as a[n] investigator.” Id. at 354 (quoting Weintraub, 593 F.3d at 203). In addition, the district court noted, the plaintiff was required by New York law to file his workplace incident report and the complaint to the Inspector General. It stated: “Speech made pursuant to a public employee’s legal obligations is not made ‘as a citizen.’” Id. (citing N.Y. Labor Law § 27-b(6)(a) & N.Y. Exec. Law § 55(1)).11 On appeal, plaintiff focused on his complaint to the Inspector General, but the Second Circuit affirmed by summary order. It found that plaintiff’s speech was
11 Defendants do not argue that the same laws are applicable here.
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unprotected because his complaint had been mandated by law and thus was part-and-parcel of his
employment duties. D’Olimpio v. Crisafi, 462 F. App’x 79, 81 (2d Cir. 2012) (summary order).
The court distinguished Jackler on the grounds that that that case concerned only Jackler’s
refusal to retract a truthful statement. Id. at 81 n.1.
Taken together, Weintraub, Ross, and Looney, along with various non-precedential summary orders,12 reveal that the Second Circuit has taken a broader view than was necessary to
decide Garcetti of what constitutes speech pursuant to an employee’s official duties. See also
Anemone v. Metro. Transp. Auth., 629 F.3d 97, 115–17 (2d Cir. 2011) (plaintiff, as Director of
Security at MTA, spoke pursuant to his employment duties when he contacted Queens DA’s
office regarding allegations of corruption); Huth v. Haslun, 598 F.3d 70, 74 (2d Cir. 2010)
(employee’s report to supervisor that co-workers were selling bootleg DVDs at work and about
reverse discrimination was unprotected where made during daily meetings convened to discuss
12 See, e.g., D’Olimpio, 462 F. App’x at 81; Carter, 415 F. App’x at 293; Platt v. Inc. Vill. of Southampton, 391 F. App’x 62 (2d Cir. 2010) (summary order); Paola v. Spada, 372 F. App’x 143, 144 (2d Cir. 2010) (summary order) (state trooper’s report about supervisor’s unlawful conduct was unprotected because employee manual required him to report wrongdoing up the chain of command or to internal affairs); Barclay v. Michalsky, 368 F. App’x 266, 268 (2d Cir. 2010) (summary order); Mulcahey v. Mulrenan, 328 F. App’x 8, 9 (2d Cir. 2009) (summary order); Healy v. City of N.Y. Dep’t of Sanitation, 286 F. App’x 744, 746 (2d Cir. 2008) (summary order); cf. Bearss v. Wilton, 445 F. App’x 400, 403 (2d Cir. 2011) (summary order) (plaintiff’s response to newspaper’s inquiries was unprotected where such inquiries were to be directed to her as city’s technology coordinator); Drolett v. DeMarco, 382 F. App’x 7, 8 (2d Cir. 2010) (summary order) (after district court found that factual dispute precluded summary judgment on whether police officer’s letter to police commissioners, local politician, and local newspaper about police misconduct was protected speech and rejected argument that police manual compelled the speech, Second Circuit reversed denial of qualified immunity, finding no violation of clearly established rights and noting, “[h]ad [plaintiff] raised his concerns within the chain of command, that speech likely would have been made pursuant to his official duties, and therefore not protected by the First Amendment”).
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the employees in their division). The great majority of district court decisions applying these
precedents have drawn the same conclusion.13
13 See, e.g., Schoolcraft v. City of N.Y., No. 10 Civ. 6005 (RWS), 2012 WL 2161596, at *8 (S.D.N.Y. June 14, 2012) (police officer’s objections to, inter alia, arrest and summons quota policy, which were confined to his supervisors, Internal Affairs, and the Quality Assurance, were unprotected); Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486, 506–08 (E.D.N.Y. 2011) (police officer’s internal memo to supervisors addressing communications problem within department that led to dangerous situations not protected); Pisano v. Mancone, No. 08 Civ. 1045 (KMW), 2011 WL 1097554, at *10–13 (S.D.N.Y. Mar. 18, 2011) (where police officer approached town mayor at his home, his speech about the internal workings of the police department, such as its lack of internal rules or policies and the police chief’s issuance of orders to commit unlawful arrests, was unprotected, whereas his complaint that the police chief had not taken the civil service exam as required by state law was protected); Brady v. Cnty. of Suffolk, 657 F. Supp. 2d 331, 344–54 (E.D.N.Y. 2009) (police officers’ internal memo and oral statements to supervisors about policy of not ticketing off-duty officers not protected); Platt v. Inc. Vill. of Southampton, No. 08-CV-2953 (JS)(ARL), 2009 WL 3076099, at *5–6 (E.D.N.Y. Sept. 21, 2009) (police officer’s report to village trustee that police lieutenant was having an affair with another officer and giving her preferential treatment was unprotected where the report “primarily sought to address personal grievance with [lieutenant’s] conduct rather than advance public safety concerns”), aff’d, 391 F. App’x 62 (2d Cir. 2010) (summary order); Mulcahey v. Mulrenan, No. 06 Civ. 4371 (LBS), 2008 WL 110949, at *5–7 (S.D.N.Y. Jan. 3, 2008) (Sand, J.) (firefighter’s internal memo expressing his concerns that he was unqualified to perform certain duties, putting himself and coworkers in danger, was unprotected), aff’d, 328 F. App’x 8 (2d Cir. 2009) (summary order); Barclay v. Michalsky, 493 F. Supp. 2d 269, 275 (D. Conn. 2007) (nurse’s report to supervisors that her co-workers were mistreating patients and sleeping on the job not protected where employee work rules required such a report), aff’d, 368 F. App’x 266, 268 (2d Cir. 2010) (summary order); Healy v. City of N.Y. Dep’t of Sanitation, No. 04 Civ. 7344 (DC), 2006 WL 3457702, at *5 (S.D.N.Y. Nov. 22, 2006) (employee’s report of corruption uncovered during inventory check unprotected where report was made to superior who ordered the inventory check be performed, was not made externally, and plaintiff originally testified alleged that he made the report as part of his duties, only to recant after Garcetti came down), aff’d, 286 F. App’x 744, 746 (2d Cir. 2008) (summary order). But see Griffin v. City of N.Y., 880 F. Supp. 2d 384, 394–400 (E.D.N.Y. 2012) (police detective’s complaint to Internal Affairs that a fellow detective had attempted to pressure him to falsely accept blame for a botched homicide investigation was protected); Anderson v. State of N.Y. Office of Court Admin. of Unified Court Sys., 614 F. Supp. 2d 404, 427–29 (S.D.N.Y. 2009) (attorney on disciplinary committee’s complaints to supervisors about committee’s failure to vigorously prosecute complaints against attorney accused of misconduct were protected because they addressed systemic problems, not individual cases); Wallace v. Suffolk Cnty. Police Dep’t, No. 04 Civ. 2599 (JS), 2007 WL 7749467, at *5–7 (E.D.N.Y. Feb. 5, 2007) (police officer, who was injured in the line of duty, engaged in protected speech when he complained to his supervisors that the report concerning his injury had been forged and omitted some of his injuries, and that improper training had led to the explosion that caused his injuries).
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3.

Application

With the Second Circuit’s teachings in mind, the Court turns to the fact-specific inquiry

whether the speech in question here was made pursuant to Officer Matthews’ official duties.

“Th[is] inquiry . . . is not susceptible to a brightline rule. Courts must examine the nature of the

plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.”

Ross, 693 F.3d at 306. The inquiry is to be both “practical,” Garcetti, 547 U.S. at 424, and

“objective,” Weintraub, 593 F.3d at 202. Although the Supreme Court did not prescribe a

“comprehensive framework for defining the scope of an employee’s duties,” Garcetti, 547 U.S.

at 424, four factors identified by the Court and the Second Circuit, considered in combination,

compel the finding that Officer Matthews’ complaints to his supervisors about the quota system

were made pursuant to his official duties.

1. The Patrol Guide: Section 207-21 of the Patrol Guide unambiguously imposed on

Officer Matthews a duty to report the fact of “unjustified stops, arrests, and summonses” that he

alleged had been occurring as a result of the quota system. The plain text of Section 207-21

imposes a duty to report “[c]riminal activity or other misconduct of any kind including the use of

excessive force or perjury that is committed by a member of the service whether on or off duty.”

Fraenkel Decl. Ex. B. The Patrol Guide sets performance expectations for members of the

NYPD, see Fraenkel Reply Decl. Ex. E, and Officer Matthews testified that he did not consider

its procedures to be optional, see Matthews Dep. 10–11. By reporting a policy that he asserted

had already produced a pattern of unjustified (i.e., unlawful) stops, arrests, and summonses,

Officer Matthews was necessarily reporting “misconduct” within the meaning of the Patrol

Guide.

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Officer Matthews argues that his own deposition testimony, in which he attested that it is
his view that Section 207-21 requires only the reporting of criminal misconduct, creates a
material factual dispute over the meaning of the phrase “or other misconduct.”14 See Matthews
Dep. 14, 19, 21, 24–25, 33, 37, 39. But, whatever Officer Matthews’ subjective belief, the plain
language of Section 207-21 cannot be so read. Section 207-21 unconditionally requires reporting
of “criminal activity” and “other misconduct.” Officer Matthews’ reading overlooks the term
“other misconduct” and treats it as superfluous. Moreover, although Officer Matthews testified
generally that this understanding derived from his training, see id. at 24, 34, he did not offer any
evidence (e.g., a training manual or other documentary evidence) supporting this contra-textual
14 The Second Circuit has described the question whether an employee spoke solely as an employee or as a citizen as “largely a question of law for the court.” Jackler, 658 F.3d at 237. In Connick, the Supreme Court stated that “[t]he inquiry into the protected status of speech is one of law, not fact.” Connick, 461 U.S. at 138 n.7. However, since Garcetti described the employee speech inquiry as a “practical one” requiring fact-specific inquiry into the nature of the speech and the nature of the employee’s duties, circuits have described the nature of this inquiry differently, with some casting it as a pure question of law and others as a mixed question of law and fact. See Fox v. Traverse City Area Public Schools Bd. of Educ., 605 F.3d 345, 350 (6th Cir. 2010) (surveying circuit split). Compare Deutsch v. Jordan, 618 F.3d 1093, 1098 (10th Cir. 2010) (question of law, but which may turn on jury’s resolution of factual disputes such as precisely what plaintiff said), Charles v. Grief, 522 F.3d 508, 513 n.17 (5th Cir. 2008) (question of law, involving examination of underlying factual issues), and Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007) (question of law), with Reilly v. City of Atl. City, 532 F.3d 216, 227 (3d Cir. 2008) (mixed question of law and fact), and Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1127–29 (9th Cir. 2008) (same). This Court reads Jackler to hold that, however described, the protected status of employee speech is ultimately a question of law for the court, but which must be determined by reference to the attendant facts and circumstances. Accordingly, where a fact critical to this legal analysis is disputed, the fact-finder must resolve the factual dispute before resolving this question of law. See Anemone, 629 F.3d at 117 (assuming arguendo that material disputes of fact exist as to whether employee spoke in official capacity or as a private citizen); Pisano, 2011 WL 1097554, at *9 (“The application of these tests is generally a matter of law for the court to decide, but in some instances, questions of fact will need to be resolved by a fact-finder before the court can apply the test.”). In this case, because Officer Matthews’ report of illegal stops, arrests, and summonses unambiguously was compelled by Section 207-21, the Court has no occasion to opine on how the inquiry would be properly cast or conducted had it turned on the resolution of disputed factual questions.
26

reading of Section 207-21, see id. at 39. And he specifically testified that he would have a duty
to report unjustified stops, arrests, and summonses—exactly the conduct at issue here. Id. at 18.15
To be sure, it is generally not dispositive of the employee speech question that a duty to
make such speech is listed in a manual: “[T]he listing of a given task in an employee’s written
job description is neither necessary nor sufficient to demonstrate that conducting the task is
within the scope of the employee’s professional duties for First Amendment purposes.”
Garcetti, 547 U.S. at 424–25. But this factor is highly relevant: The Second Circuit has
“frequently confronted similar situations where, as in Garcetti, the speech at issue was expressly
part of the employee’s official job duties and thus not protected under the First Amendment.”
Griffin, 880 F. Supp. 2d at 395 (collecting cases); see Paola, 372 F. App’x at 144 (state trooper’s
report about supervisor’s unlawful conduct was unprotected because employee manual required
him to report wrongdoing up the chain of command or to internal affairs); Barclay, 368 F. App’x
at 268 (nurse’s report to supervisors that her co-workers were mistreating patients and sleeping
on the job not protected where employee work rules required such a report); cf. D’Olimpio, 462
F. App’x at 80 (affirming district court’s conclusion that plaintiff’s report of misconduct was
unprotected because it was compelled by state law). And the concern animating the observation
in Garcetti, that an excessively broad job description be determinative of whether an employee’s
15 Officer Matthews twice tried to blunt the effect of this testimony. First, in his deposition, he clarified that he would have no duty to report an unjustified stop based simply on an error in judgment; rather, he would only need to report intentionally unjustified stops. See Matthews Dep. 25, 28. But Officer Matthews alleges in the Complaint that officers were forced to “abandon their discretion in order to meet their numbers,” which implies willful conduct. Compl. ¶ 28. Second, Officer Matthews filed an affidavit stating that he did not report “any particular” unjustified stop or arrest, just the broader practice. Matthews Decl. ¶ 13. But if Officer Matthews had a duty to report particular unjustified stops and arrests, surely he would also have a duty to report a pattern of unjustified stops and arrests, which is precisely what he claims to have done. Compl. ¶ 28.
27

speech is constitutionally protected, is absent here. Section 207-21 does not sweep broadly. Instead it imposes on police officers the unsurprising obligation of reporting criminal activity and other misconduct within the NYPD.16
For this reason, Officer Matthews’ claim that reliance on Section 207-21 to define his job duties might strip police officers of any right to protest unlawful activity does not carry the day. A public employer may not strip its employees of all First Amendment protection by fashioning an excessively broad description of their official duties. Dissenting in Garcetti, Justice Souter voiced concern that “a response to the Court’s holding will be moves by government employers to expand stated job descriptions to include more official duties and so exclude even some currently protectable speech from First Amendment purview.” Garcetti, 547 U.S. at 431 n.2. In response, however, the majority clarified: “We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions.” Id. at 424. Here, Officer Matthews’ fears are overstated, because Section 207-21, as interpreted here to require the reporting of unlawful stops and arrests, is neither overbroad nor overreaching. See Schoolcraft, 2012 WL 2161596, at *6 (relying on Patrol Guide Section 207-21 as a factor indicating that plaintiff’s speech about quota policies in the NYPD was pursuant to his duties as a police officer). But see Griffin, 880 F. Supp. 2d at 397 (rejecting argument that Section 207-21 forecloses detective’s claim to First Amendment protection where he reported to Internal Affairs that another detective had asked him to lie during official investigation by taking blame for a failed murder investigation). Unjustified arrests are a frequent source of civil liability, see 42
16 Officer Matthews notes that he raised his complaints to his supervisor, rather than to Internal Affairs, as Section 207-21 directs, but that does not affect the First Amendment analysis. See Ross, 693 F.3d at 306 (rejecting claim that plaintiff’s speech was protected because she made it outside the employer’s designated channel); Anemone, 639 F.3d at 116 (same).
28

U.S.C. § 1983, and, under extreme circumstances, criminal liability, see 18 U.S.C. § 242. The
claim that a departmental policy that requires police officers to report a pattern of such violations of law is overbroad is unpersuasive.17
In holding that Section 207-21 supports defendants’ claim that Officer Matthews’ speech
was within his job responsibilities, the Court is mindful that formal descriptions “often bear little
resemblance to the duties an employee actually is expected to perform.” Garcetti, 547 U.S. at
424–25. “[S]peech can be pursuant to a public employee’s official job duties even though it is
not required by, or included in, the employee’s job description, or in response to a request by the
employer.” Weintraub, 593 F.3d at 203 (alterations omitted); accord Ross, 693 F.3d at 305.
Accordingly, the Court proceeds to consider other factors identified by the Supreme Court and
the Second Circuit as relevant to that inquiry. These factors point in the same direction.
2. Subject Matter of Employment: Officer Matthews’ remarks about illegal stops and
arrests, and about the quota policy that brought that misconduct about and to which he claimed
he was personally subject, concerned the subject matter of his employment, owed its existence to
his employment, and was made in furtherance of that employment. Where an employee’s speech
is “part-and-parcel of his concerns about his ability to properly execute his duties,” it is
unprotected. Weintraub, 593 F.3d at 203 (citation omitted); accord Carter, 415 F. App’x at 293
17 Officer Matthews notes that defendants relied on Section 207-21 in their brief to the Second Circuit defending Judge Jones’s dismissal of his Complaint. He argues that that Court’s summary reversal, “though it did not expressly discuss the City’s reliance on section 207-21, makes clear that section 207-21 cannot be the basis for disposing of Officer Matthews’s First Amendment claim.” Pl. Br. 16. But that is not so. Officer Matthews argued on appeal that Section 207-21 had not been before the Court on the motion to dismiss, and noted that Judge Jones had not referred to it in granting that motion. Far from finding Section 207-21 inapposite, the Second Circuit directed this Court to inquire into Officer Matthews’ job responsibilities, Matthews, 488 F. App’x at 533, and this Court has carefully done so. Section 207-21 bears on that inquiry.
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(affirming decision that speech was unprotected where it concerned officers’ ability to perform their own duties). Here, the Complaint indicates that Officer Matthews spoke out of concern about the effect the quota system had on his and other officers’ abilities to perform their duties: It alleges that “police officers felt forced to abandon their discretion in order to meet their numbers” and that the quota system was “having an adverse effect on the precinct’s relationship with the community.” Compl. ¶ 28 (emphasis added). To be sure, Officer Matthews also alleged that the quota system harmed the public. See id. ¶ 1 (alleging that Officer Matthews’ complaint “comes in the context of a city-wide controversy over the NYPD’s use of illegal quotas and the damage such quotas inflict on innocent people, policing, and police-community relations”). But Officer Matthews placed significant emphasis on his ability to do his own job; his reference to a related public interest did not transform an employment dispute into citizen speech. See Brady, 657 F. Supp. 2d at 348 (“[M]any aspects of a police officer’s job duties, and those of many other public employees, directly impact issues important to the citizenry; simply mentioning this potential impact is not enough, by itself, to turn employees’ internal disputes with their superiors about official matters into First Amendment claims.”). As alleged in the Complaint, Officer Matthews, by challenging a policy he believed was impeding his and fellow officers’ abilities to carry out their duties, was plainly acting in furtherance of his employment.
Officer Matthews’ speech also “owed its existence to” his employment. Like the building official in Looney and the payroll clerk in Ross, Officer Matthews gained the information he reported while doing his job. See Looney, 702 F.3d at 712; Ross, 693 F.3d at 306; see also Carter, 415 F. App’x at 293 (affirming holding that speech about “misconduct [plaintiffs] knew of only by virtue of their job as police officers” was unprotected). To be sure, not all speech reporting information learned in the course of one’s employment is unprotected; as
30

the Supreme Court has noted, public employees are often the only people with information about their employer’s practices, and leaving such speech unprotected could deprive the public of valuable insights. See Garcetti, 547 U.S. at 419–21 (“The First Amendment protects some expressions related to the speaker’s job.”); Pickering, 391 U.S. at 572. Here, Officer Matthews’ speech was on a subject of consequence: It stood to notify the public that unlawful stops and arrests in the 42nd precinct were occurring and were rooted in an internal quota system. See Griffin, 880 F. Supp. 2d at 400. However, in assessing whether or not Officer Matthews’ speech was constitutionally protected, the fact that it directly implicated the subject matter of his employment supports a finding that it was not. See Looney, 702 F.3d at 712; Ross, 693 F.3d at 306; Frisenda, 775 F. Supp. 2d at 506.
3. Internal Speech: A public employee does not “forfeit[] his protection against governmental abridgement of freedom of speech if he decides to express his views privately rather than publicly.” Givhan, 439 U.S. at 695–96; accord Garcetti, 547 U.S. at 420–21. Nevertheless, speech confined to internal channels tends to look less like citizen speech than does the paradigmatic letter to the editor. See Garcetti, 547 U.S. at 423; Ross, 693 F.3d at 306 (“Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court’s decision.”); Weintraub, 593 F.3d at 205 (contrasting teacher’s union grievance to a case where an employee pursued his complaints at a public press conference); Healy, 286 F. App’x at 746 (that employee reported finding of corruption only to his supervisor, not externally, supported finding that speech was unprotected); Frisenda, 775 F. Supp. 2d at 506 (police officer’s internal memo unprotected in part because no indication that he made external complaints); see also Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (“If however a public employee takes his job concerns to persons outside the work place in addition to raising
31

them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.”).
Here, Officer Matthews’ speech was internal to the precinct—it was made to his direct supervisor. It is an ironic artifact of First Amendment law that Officer Matthews’ decision to keep his complaints in-house, rather than airing the NYPD’s dirty laundry to the media, results in a loss of protection. See Singer v. Ferro, 711 F.3d 334, 341 (2d Cir. 2013) (“[W]e acknowledge that there is no little irony in the fact that [plaintiff’s] claim suffers because he did not make more serious allegations or circulate his criticism publicly, to the likely greater injury of the defendants.”). But the Supreme Court recognized that irony in Garcetti, and ruled against the employee nonetheless. Garcetti, 547 U.S. at 423–24.18
4. Lack of Civilian Analogue: A final relevant factor is whether there is a civilian analogue to Officer Matthews’ speech. Where an employee speaks in a manner that no private citizen could, depriving the employee of First Amendment protection for such speech does not strip him of a right he would have had but for his employment. See Garcetti, 547 U.S. at 422, 424; Weintraub, 593 F.3d at 206 (Calabresi, J., dissenting). Instead, it puts him in the position he would have been in but for the fact of employment. The presence or absence of a civilian analogue is thus relevant to the issue at hand. Weintraub, 593 F.3d at 204; see Jackler, 658 F.3d at 241 (finding protected speech where plaintiff’s refusal to retract his truthful report and file a false one “has a clear civilian analogue”); cf. Bowie v. Maddox, 653 F.3d 45, 48 (D.C. Cir. 2011)
18 This irony is mitigated by the fact that the absence of a First Amendment cause of action does not mean that public employees relinquish their rights under applicable federal or state laws, e.g., those that protect whistleblowers. See Garcetti, 547 U.S. at 425–26; Ross, 693 F.3d at 307. The Complaint here, however, is not brought under such laws.
32

(holding that the existence of a civilian analogue does not alone render speech protected, because
“[a]ll official speech, viewed at a sufficient level of abstraction, has a civilian analogue”).19
Examples of speech with a civilian analogue include a letter to the local newspaper, see
Garcetti, 547 U.S. at 423, and complaints to elected officials or independent state agencies, see
Weintraub, 593 F.3d at 204; Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006). In Jackler, the
Second Circuit found a civilian analogue to Jackler’s refusal to retract his truthful report and file
a false one, because a citizen has the right to file a report with the police department, and, having
done so, “has the indisputable right to reject pressure from the police to have him rescind his
accusation and falsely exculpate the accused.” Jackler, 658 F.3d at 241. By contrast, examples
of speech lacking such an analogue include an official report made to a supervisor, see Garcetti,
547 U.S. at 422–23, and an employee grievance filed in a forum unavailable to non-employees,
see Weintraub, 593 F.3d at 203.
Here, Officer Matthews likens his oral complaints to his commanding officers to the
reports or complaints which a civilian is, of course, free to make to a police department. Jackler,
658 F.3d at 241; see also Griffin, 880 F. Supp. 2d at 399–400 (citizens may report misconduct to
the police department through the Internal Affairs Bureau in the same manner that NYPD
19 Judge Calabresi has read the majority in Weintraub to treat the presence of a civilian analogue as a necessary condition for constitutional protection. See Weintraub, 593 F.3d at 206. The D.C. Circuit, by contrast, has interpreted the Second Circuit as holding, in Jackler, that the presence of a civilian analogue is a sufficient condition for such protection. See Bowie, 653 F.3d at 48. It appears to this Court that the most apt description of the Circuit’s doctrine on this point is that the presence or absence of a civilian analogue is a relevant, but not invariably dispositive, factor. In Weintraub, the Court stated that its finding of employee speech was “supported by the fact that [plaintiff’s] speech ultimately took the form of an employee grievance, for which there is no relevant citizen analogue,” Weintraub, 593 F.3d at 203 (emphasis added), and that the lack of a civilian analogue is “not dispositive,” id. at 204. Jackler, in turn, identified the presence of a civilian analogue as an important indicator that Jackler had not spoken as an employee. See Jackler, 658 F.3d at 240. It appears that the Second Circuit has thus viewed the presence of a civilian analogue as neither necessary nor sufficient, but simply a factor that “bear[s] on the perspective of the speaker.” Weintraub, 593 F.3d at 204.
33

officers can). But Officer Matthews did not file a police report or call Internal Affairs. Instead, he made his reports to the commanding officers of the 42nd Precinct during a series of in-person meetings in the precinct. The decisive question is, therefore, whether this is a “channel[] available to citizens generally.” Weintraub, 593 F.3d at 204.
Officer Matthews argues that civilians may make such complaints in the manner that he did. He notes that the 42nd Precinct’s commanding officer has a duty to meet with civilians to receive feedback about police conduct, see Beirne Dep. 24–25; Bloch Dep. 22, 48; Bugge Dep. 39; Harrist Decl Ex. 7, and points to Captain Bloch’s and Captain Bugge’s attendance at public meetings of the 42nd Precinct’s Community Council, see Bloch Dep. 24–25; Bugge Dep. 45–47, and to their availability for additional in-person meetings to address specific concerns, see Bloch Dep. 36, 39, 41; Bugge Dep. 64–65; Harrist Decl. Ex. 8, at NYPD 188. Officer Matthews also identifies at least one occasion in which Captain Bugge met in person in his office with a local reverend to discuss his mistreatment during a stop. Bugge Dep. 58–59.
On the other hand, as the City notes, relative to the average citizen, Officer Matthews had superior access to his commanding officers. He spoke with Captain Bugge about the existence of the quota system in February, March, April, June, and October 2009, and with another precinct executive in May 2009. Compl. ¶¶ 20–21. In January 2011, after Captain Bugge was replaced by Captain Bloch—who, apparently, met less frequently with community members, see Bloch Dep. 41—Officer Matthews spoke with Captain Bloch. Compl. ¶ 28. By contrast, the only specific instance of a civilian’s meeting in person with a commanding officer of the 42nd Precinct in a manner akin to Officer Matthews’ involved a prominent local reverend who was an advisor to the Community Council board and was otherwise in the Community Affairs Office “a couple of times a week.” See Bugge Dep. 58–59. Further, even for such local leaders, such
34

meetings would be set up through the Community Affairs Office, which would often resolve the

issue at hand before the civilian ever got face time with the commanding officer. See Bugge

Dep. 65.

For these reasons, it is not correct for Officer Matthews to claim that the average civilian

enjoyed access to the channel which he used to lodge his complaint about unlawful stops and

arrests and about the quota system. See Williams v. Cnty. of Nassau, 779 F. Supp. 2d 276, 285–

86 (E.D.N.Y. 2011) (“While citizens may write letters to, or request meetings with, the Deputy

County Executive, none would have the kind of access to [the Deputy County Executive] that

[plaintiff] had as Executive Director of the [Civil Service Commission].”). In so noting, the

Court recognizes that Officer Matthews did not make his complaints during regularly scheduled

meetings with his commanding officers, see Matthews Decl. ¶¶ 8–11; Bloch Dep. 20; Bugge

Dep. 31–32, 34; see also Huth, 598 F.3d at 74 (involving employee’s complaints raised during

daily meetings convened to discuss such matters), and that for there to be a civilian analogue

there need not be perfect symmetry between the manner in which the plaintiff spoke and the

channels available to the ordinary civilian. But the differences here are significant. Officer

Matthews was able to get the ear of his commanding officers more readily, more frequently, and

more privately than could an average citizen. Accordingly, this factor, too, supports a finding

that Officer Matthews spoke pursuant to his official duties.

*

*

*

Taken together, the above factors, derived from Garcetti and its Second Circuit progeny,

require the finding that, when Officer Matthews reported unlawful stops, arrests, and summonses

and the quota policy from which they derived, he spoke as an NYPD employee, not a citizen.

Officer Matthews’ speech was compelled by the NYPD Patrol Guide; concerned the subject

35

matter of his employment; was made internally; and lacked a direct civilian analogue. His speech therefore was not constitutionally protected.
In so holding, the Court recognizes that, as a matter of fact, Officer Matthews’ speech had undeniable value to the public. The enforcement priorities of the NYPD may profoundly affect the lives of New Yorkers. And there is a paramount public interest in shining a light on a policy that allegedly incents or causes police officers to violate citizens’ rights not to be subject to unlawful stops and arrests. Reinforcing that notion, the quota system that Officer Matthews protested would, in fact, today violate New York state law. See N.Y. Labor Law § 215–a (effective Aug. 30, 2010). Officer Matthews’ speech had the potential to contribute usefully to public discourse on issues of consequence. See Pickering, 391 U.S. at 572.
However, as a matter of law, Garcetti and its Second Circuit progeny teach that not all speech by public employees enjoys First Amendment protection. Public employees who wish to lend their voice to the public debate in a way that enables them to claim such protection for their words must be mindful that the First Amendment does not “constitutionalize the employee grievance,” Garcetti, 547 U.S. at 420 (citation omitted), and that the availability of such protection will ineluctably turn on a fact-intensive inquiry as to whether such speech was made pursuant to the employee’s duties. See id. at 424; Ross, 693 F.3d at 306. The facts here have led the Court to deny such protection to Officer Matthews’ speech. His speech was more in the nature of an employee grievance than a political statement. But whether speech in the future by police officers protesting unlawful police practices will be similarly classified will turn on the facts and the context. A police officer’s inherent duty to enforce the law does not invariably
36

deprive him or her of First Amendment protection for speech that tends to reveal unlawful police practices.2o
CONCLUSION For the reasons stated, defendants' motion for summary judgment is granted. The Clerk of Court is directed to terminate the motion pending at docket number 35, and to close this case.

SO ORDERED.

pa!~e~;er~
United States District Judge

Dated: July 29, 2013 New York, New York

20 Nor does such an officer relinquish his rights under relevant whistleblower laws. See Garcetti,
547 U.S. at 425-26; Ross, 693 F.3d at 307.
37

 
 CaCCseaass1ee:111233--c-22v99-0111553,,5DD4oo-cPcuuAmmEeennDtt 9o16c0-u01m,, 00e22n//t225663//2200F11i55le,,d114044246/6287637/819,5, PPaaPggaeeg11eoo1ff 2o24f424

13‐2915‐cv Matthews v. City of New York

N.Y.S.D. Case # 12-cv-1354(PAE)

In the United States Court of Appeals
For the Second Circuit ________

AUGUST TERM, 2013

ARGUED: APRIL 24, 2014 DECIDED: FEBRUARY 26, 2015

No. 13‐2915‐cv
CRAIG MATTHEWS, Plaintiff‐Appellant,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED:F_e_b_r_ua_r_y_2_6_,_2_0_1_5_

v.

CITY OF NEW YORK; RAYMOND KELLY, as Commissioner of the New York City Police Department; JON BLOCH, a deputy inspector in the New York City Police Department; and MARK SEDRAN, a lieutenant
in the New York City Police Department, Defendants‐Appellees. ________

Appeal from the United States District Court for the Southern District of New York.
No. 12‐cv‐1354 – Paul A. Engelmayer, Judge. ________

Before: WALKER and HALL, Circuit Judges, and MURTHA, District Judge.*
________
* The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation.

CERTIFIED COPY ISSUED ON 02/26/2015

CaCCseaass1ee:111233--c-22v99-0111553,,5DD4oo-cPcuuAmmEeennDtt 9o16c0-u01m,, 00e22n//t225663//2200F11i55le,,d114044246/6287637/819,5, PPaaPggaeeg22eoo2ff 2o24f424
Officer Craig Matthews brought suit alleging that the City of New York retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct of the New York City Police Department (“NYPD”). The United States District Court for the Southern District of New York (Paul A. Engelmayer, Judge) granted the defendants’ motion for summary judgment, holding that Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. We conclude that because Matthews’s comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen. Accordingly, we VACATE the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
________
CHRISTOPHER DUNN, (Erin Harrist, Arthur Eisenberg, Alexis Karterton, on the brief), New York Civil Liberties Union Foundation, New York, N.Y., for Appellant. 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, New York, N.Y., for Defendants‐Appellees.
________
2

CaCCseaass1ee:111233--c-22v99-0111553,,5DD4oo-cPcuuAmmEeennDtt 9o16c0-u01m,, 00e22n//t225663//2200F11i55le,,d114044246/6287637/819,5, PPaaPggaeeg33eoo3ff 2o24f424
JOHN M. WALKER, JR., Circuit Judge: Officer Craig Matthews brought suit alleging that the City of
New York retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct of the New York City Police Department (“NYPD”). The United States District Court for the Southern District of New York (Paul A. Engelmayer, Judge) granted the defendants’ motion for summary judgment, holding that Matthews spoke as a public employee, not as a citizen, and that his speech was thus not protected by the First Amendment. We conclude that because Matthews’s comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen. Accordingly, we VACATE the district court’s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
BACKGROUND I. Matthews’s Speech about the Quota System
Since 1999, Craig Matthews, an NYPD police officer, has been 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,
3

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summons, and stop‐and‐frisks 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 App’x 25. Matthews alleges that officers were under pressure to comply with the quota system.
In February 2009, Matthews, believing that the quota system was damaging to the NYPD’s core mission, reported its existence to then‐Captain Timothy Bugge, the Precinct’s commanding officer at that time. In March and April of 2009, Matthews again reported the quota system’s existence to Captain Bugge, and, in May 2009, Matthews reported the same to an unnamed Precinct executive officer.
In January 2011, Matthews met with then‐Captain Jon Bloch, the Precinct’s new commanding officer, and two other officers in Captain Bloch’s office. Matthews told them about the quota system and stated that it was “causing unjustified stops, arrests, and summonses because police officers felt forced to abandon their discretion in order to meet their numbers,” and that it “was having an adverse effect on the precinct’s relationship with the community.” Compl. ¶ 28, Joint App’x 28.
4

CaCCseaass1ee:111233--c-22v99-0111553,,5DD4oo-cPcuuAmmEeennDtt 9o16c0-u01m,, 00e22n//t225663//2200F11i55le,,d114044246/6287637/819,5, PPaaPggaeeg55eoo5ff 2o24f424
II. Matthews’s Complaint and the Defendants’ Motion to Dismiss On February 28, 2012, Matthews filed a complaint under 42
U.S.C. § 1983 alleging that the NYPD retaliated against him in violation of the First Amendment to the U.S. Constitution and Article I, § 8 of the New York State Constitution because he spoke to the Precinct’s leadership about the arrest quota policy. Although not relevant to this appeal, which is limited to the narrow question of whether Matthews spoke as a citizen or as a public employee, the alleged acts of retaliation consist of punitive assignments, denial of overtime and leave, separation from his career‐long partner, humiliating treatment by supervisors, and negative performance evaluations.
On March 16, 2012, the defendants moved to dismiss, arguing that Matthews’s speech was made pursuant to his official employment duties and was thus unprotected. The district court (Barbara S. Jones, Judge) granted the defendants’ motion to dismiss. See Matthews v. City of New York, No. 12 Civ. 1354, 2012 WL 8084831 (S.D.N.Y. Apr. 12, 2012). On November 28, 2012, a panel of this court vacated the dismissal and 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
5

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official duties when he voiced the complaints.” Matthews v. City of New York, 488 Fed. App’x 532, 533 (2d Cir. 2012). The panel stated that discovery was necessary as to “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Id. (internal quotation marks omitted).
On remand, after the case was reassigned to District Judge Paul A. Engelmayer, the following evidence relevant to this appeal was developed in discovery. III. Matthews’s Employment Duties
Matthews stated in an affidavit that the vast majority of his time as a police officer is spent:
(1) going on radio runs, which are responses to 911 calls in the precinct, in addition to ‘311’ requests, and requests that come through the station house telephone switchboard, (2) patrolling the streets and vertical patrolling of local housing, (3) filling out complaint reports and additional forms relating to criminal activity, lost property, and missing persons, including interviewing witnesses, (4) responding to traffic accidents, (5) transporting prisoners to and from the precinct house, courts, and hospitals, and (6) doing community visits with local businesses and organizations. Joint App’x 91‐92. Matthews’s duties are formally defined by the
NYPD Patrol Guide, which was created to serve as a “guide for ALL
members of the service,” although it does not “contain distinct
6

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instructions for every situation that may be encountered in the field.” Foreword, Patrol Guide, Joint App’x 410. Section 207‐21 of the Patrol Guide, titled “Allegations of Corruption and Other Misconduct Against Members of the Service,” states that:
All members of the service must be incorruptible. An honest member of the service will not tolerate members of the service who engage in corruption or other misconduct. All members of the 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 App’x 36. The Patrol Guide defines corruption and other misconduct as, “[c]riminal activity or other misconduct of any kind including the use of excessive force or perjury that is committed by a member of the service whether on or off duty.” Id. It also outlines a procedure for officers to report misconduct to the Internal Affairs Bureau and provides that the “[f]ailure to report corruption, other misconduct, or allegations of such act is, in itself, an offense of serious misconduct and will be charged as such.” Id. at 37. Commissioner John Beirne, Deputy Commissioner for Labor Relations for the NYPD, testified at deposition that a quota system alone is not misconduct but that a quota system that results in an
7

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unjustified stop, an unjustified arrest, an unjustified summons, or an adverse employment action is misconduct that must be reported. Matthews testified that the Patrol Guide does not obligate him to report the existence of a quota system and that he would only have a duty to report misconduct that violated the penal law. It is undisputed that Matthews did not regularly meet with or report to Captains Bugge or Bloch. Commissioner Beirne, Captain Bloch, and Captain Bugge testified that an officer has no duty to monitor the conduct of his or her supervisors. IV. Avenues for Civilian Complaints to the NYPD
Patrol Guide Section 202‐09 states that one duty of a commanding officer in the NYPD is to “[m]aintain as much personal contact as possible with business, civic [organizations] . . . and other groups or media with community influence and interests to keep abreast of community tensions and trends.” Joint App’x 209. In this spirit, the Precinct held monthly Community Council meetings in which the public was invited to raise concerns about policing practices. Captain Bloch testified that he routinely attended these meetings, missing fewer than four or five of the previous thirty.
In addition to the Community Council meetings, Captain Bugge testified that, one to three times per month, he met with members of the public, such as local politicians, church leaders, or
8

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members of civic associations, to discuss policing issues in the Precinct. The minutes of one Community Council meeting reflect that Captain Bugge announced that “he welcomes the community to call him and discuss problems.” Joint App’x 246. Captain Bloch testified that in his experience, however, meetings with community members outside of the Community Council meetings happened “rarely.” Joint App’x 131. V. The Defendants’ Motion for Summary Judgment
On May 20, 2013, the defendants moved for summary judgment. On July 29, 2013, the district court granted the defendants’ motion. The district court held that Matthews’s speech was made as an employee of the NYPD, not as a citizen, and thus was not protected by the First Amendment.
Matthews now appeals. DISCUSSION
I. Standard of Review We review a district court’s grant of summary judgment de
novo. Natural Res. Def. Council, Inc. v. U.S. Food and Drug Admin., 710 F.3d 71, 79 (2d Cir. 2013). Summary judgment is only appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
9

CaCCseaass1ee:111233--c-22v99-0111553,,5DD4oo-cPcuuAmmEeennDtt 9o16c0-u01m,, 00e22n//t225663//2200F11i55le,,d114044246/6287637/819,5, PPaaPggaeeg11e001oo0ff 2o24f424
law.” Fed. R. Civ. P. 56(a). “[V]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.” Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) (quoting Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)). II. Legal Framework
A plaintiff asserting a First Amendment retaliation claim must establish that: “(1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech.” Cox v. Warwick Valley Cent. School Dist., 654 F.3d 267, 272 (2d Cir. 2011). The district court granted summary judgment to the defendants on the basis that Matthews’s speech was not protected. We address only that issue.
A court conducts a two‐step inquiry to determine whether a public employee’s speech is protected: “The first requires determining whether the employee spoke as a citizen on a matter of
10

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public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 568 (1968)). This step one inquiry in turn encompasses two separate subquestions: “(1) whether the subject of the employeeʹs speech was a matter of public concern and (2) whether the employee spoke ‘as a citizen’ rather than solely as an employee.” Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011) (citing Garcetti, 547 U.S. at 420‐ 22). If the answer to either question is no, that is the end of the matter. If, however, both questions are answered in the affirmative, the court then proceeds to the second step of the inquiry, commonly referred to as the Pickering analysis: whether the relevant government entity “had an adequate justification for treating the employee differently from any other member of the public based on the government’s needs as an employer.” Lane v. Franks, 134 S.Ct. 2369, 2380 (quoting Garcetti, 547 U.S. at 418); see also Pickering, 391 U.S. at 568.
The district court determined that Matthews spoke on a matter of public concern and the defendants‐appellees do not
11

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challenge that determination here. This appeal concerns only whether Matthews spoke as a citizen or as a public employee. The district court held that Matthews spoke as a public employee. We disagree with that conclusion, however, and hold that Matthews spoke as a citizen. Accordingly, we remand to the district court to determine whether an adequate justification existed for treating Matthews differently from any other member of the public, and if necessary, to analyze in the first instance whether a reasonable jury could find that Matthews suffered retaliation as the result of exercising his First Amendment rights. III. The Citizen/Employee Distinction
The Supreme Court has recognized a tension in public employment free speech cases between an employee’s First Amendment rights and the “common sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick v. Myers, 461 U.S. 138, 143 (1983). “The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters
12

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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.” Pickering, 391 U.S. at 568.
Guided by the Supreme Court’s decision in Garcetti, we ask two questions to determine whether a public employee speaks as a citizen: (A) did the speech fall outside of the employee’s ”official responsibilities,“ and (B) does a civilian analogue exist? See Weintraub v. Bd. of Educ. of City Sch. Distr. of City of. N.Y., 593 F.3d 196, 203‐04 (2d Cir. 2010).
A. Official Duties “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421. Accordingly, we have held that speech is not protected if it is “part‐and‐parcel of [the employee’s] concerns about his ability to properly execute his duties.” Weintraub, 593 F.3d at 203 (internal quotation marks omitted).
13

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In Garcetti, the Supreme Court adopted a functional approach toward evaluating an employee’s job duties. There, a deputy district attorney alleged that he had been retaliated against for writing a memorandum recommending that a case be dismissed. The Supreme Court held that the prosecutor’s memorandum to his superior was unprotected because it was “part of what [the speaker] . . . was employed to do.” Garcetti, 547 U.S. at 421. The “controlling factor” in its decision, the Court noted, was that the employee’s “expressions were made pursuant to his duties as a calendar deputy.” Id. The Court counseled that the appropriate inquiry is a “practical one” directed to the regular duties of the employee. Id. at 424. While relevant to that inquiry, the Court cautioned, “[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform” and “the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.” Id. at 424‐25.
14

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We have applied Garcetti’s functional approach in previous cases. In Weintraub, we held that a school teacher’s formal grievance regarding the administration’s refusal to discipline a student was unprotected speech because a teacher’s need to discipline his own students is essential to his ability to effectively run a classroom as part of his day‐to‐day responsibilities. 593 F.3d at 203. We also found that the teacher’s choice to pursue his complaint by following the employee grievance procedure supported the conclusion that the speech was unprotected because that procedure had no civilian analogue. Id.
Similarly, in Ross v. Breslin, we held that a payroll clerk’s 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 susceptible to a brightline rule,” and that “[c]ourts must examine the nature of the plaintiff’s job responsibilities, the nature of the speech,
15

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and the relationship between the two.” Id. Because the employee was expected to uncover wrongdoing as part of her daily job as a payroll clerk, we concluded that her speech was not protected.
In this case, Matthews reported the existence of the quota system on three occasions to Captain Bugge and on one occasion to an unnamed executive officer in the Precinct. Over a year later, 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 in order to meet their numbers” and it “was having an adverse effect on the precinct’s relationship with the community.” Joint App’x 28.
Matthews’s speech to the Precinct’s leadership in this case was not what he was “employed to do,” unlike the prosecutor’s speech in Garcetti, nor was it “part‐and‐parcel” of his regular job, unlike the case of the teacher in Weintraub and the payroll clerk in Ross. Matthews’s speech addressed a precinct‐wide policy. Such policy‐
16

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oriented speech was neither part of his job description nor part of the practical reality of his everyday work. Section 202–21 of the NYPD Patrol Guide, which outlines the “Duties and Responsibilities” of a Police Officer, reinforces this conclusion. It lists 20 specific duties, but none includes a duty to provide feedback on precinct policy or any other policy‐related duty. See Joint App’x 113. Matthews similarly stated that his job as a police officer consisted of radio runs, patrols, complaint reports, and other tasks involving enforcement of the law; it did not include reporting misconduct of supervisors nor did it encompass commenting on precinct‐wide policy. Matthews had no role in setting policy; he was neither expected to speak on policy nor consulted on formulating policy. Commissioner Beirne, Captain Bloch, and Captain Bugge all testified that a police officer has no duty to monitor the conduct of his supervisors. Captain Bloch and Captain Bugge also testified that 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
17

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communicate with the Precinct’s commanding officers beyond occasional hallway small talk. In sum, Matthews’s actual, functional job responsibilities did not include reporting his opinions on precinct‐wide quota systems to the Precinct commanders.
We hold that when a public employee whose duties do not involve formulating, implementing, or providing feedback on a policy that implicates a matter of public concern engages in speech concerning that policy, and does so in a manner in which ordinary citizens would be expected to engage, he or she speaks as a citizen, not as a public employee.
The City points to Section 207‐21 of the NYPD Patrol Guide, which, as noted earlier, states in pertinent part “[a]ll members of the 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 App’x 36. It defines “corruption/other misconduct” as “[c]riminal activity or other misconduct of any kind including the use of excessive force or perjury that is committed by a member of the service whether on or
18

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off duty.” Id. The district court relied on this provision in holding that Matthews’s reports were part of his official duties. We believe this reliance was misplaced.
Matthews testified that he understood Section 207‐21 to require only reports of misconduct rising to the level of a violation of penal law. Commissioner Beirne testified that the section requires reports of almost every violation of the Patrol Guide.. Under either interpretation, however, the provision does not render Matthews’s speech unprotected.
Matthews, in speaking out about the quota system, was not reporting suspected violations of law that might have required him to exercise his authority to arrest a fellow police officer or turn in an officer for breach of a protocol. Matthews admitted that he would have to report a police officer who violated the law, but this is not 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 told Captain Bloch that, as a result of the quota policy,
19

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“police officers felt forced to abandon their discretion,” which was causing “unjustified stops.” Compl. ¶ 28, Joint App’x 28. Matthews was not flagging specific violations of law, but rather expressing an opinion on a policy which he believed was limiting officer discretion to not intervene in situations that, in the officer’s own judgment, might not warrant intervention. According to Matthews, the policy resulted in stops that were “unjustified” because no officer properly exercising discretion would have made them. In addition, we note that Matthews, by reporting the quota system to the Precinct commanders instead of to the NYPD Internal Affairs Bureau, did not follow the internal procedures set out in Section 207‐21.
Even if Matthews’s speech were deemed to fall within Section 207‐21, this provision would not be determinative of whether that speech was protected by the First Amendment. If the Patrol Guide’s general duty to report misconduct were permitted to control whether the speech of any employee—without regard to whether the investigation and reporting of misconduct is an integral part of the employee’s day‐to‐day job (i.e. what he or she is “employed to
20

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do,” Garcetti, 547 U.S. at 421)—enjoyed First Amendment protection, public employers could be encouraged to simply prescribe similarly general duties, thereby limiting such protection for wide swaths of employee speech. When Justice Souter’s dissent in Garcetti flagged this risk, id. at 431 n.2, the Court majority responded by explicitly “reject[ing] . . . the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions,” id. at 424. To be sure, the duty to report misconduct has increased relevance in the context of law enforcement, but we believe that it is more properly considered as part of the Pickering balancing analysis in determining whether the government employer had an adequate justification for its actions. See supra DISCUSSION, Section II, Legal Framework; see also Lane, 134 S.Ct. at 2381 (describing the Pickering framework as “balancing the interests of the employee, 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” (citing Pickering, 391 U.S. at 598 (internal quotation marks and brackets omitted))).
21

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B. Civilian Analogue The existence of a comparable civilian analogue for Matthews’s speech also supports our conclusion that he spoke as a citizen. Speech has a “relevant civilian analogue” if it is made through “channels available to citizens generally.” Jackler, 658 F.3d at 238. “[A]n indicium that speech by a public employee has a civilian analogue is that the employee’s speech was to an ‘independent state agency’ responsible for entertaining complaints by ‘any citizen in a democratic society regardless of his status as a public employee.’” Id. at 241 (quoting Weintraub, 593 F.3d at 204). In Jackler, we held that a police officer’s refusal to retract a truthful report to the police had a civilian analogue because a non‐ employee citizen may also refuse to retract a truthful police report. 658 F.3d at 241. In Weintraub, on the other hand, we found the teacher’s speech unprotected in part because “lodging of a union grievance is not a form or channel of discourse available to non‐ employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general.” 593 F.3d at 204.
22

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Unlike the teacher in Weintraub, Matthews did not follow internal grievance procedures, but rather went directly to the Precinct commanders, with whom he did not have regular interactions and who had an open door to community comments and complaints.
Matthews chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct commanders. Captain Bloch stated that he attended nearly every monthly Community Council meeting. And Captain Bugge testified that one to three times per month he met with members of the community to discuss issues in the Precinct. Matthews reported his concerns about the arrest quota system to the same officers who regularly heard civilian complaints about Precinct policing issues.
The district court found an absence of a civilian analogue because Matthews had better access to his commanding officers than would ordinary citizens. The district court noted that Matthews could speak to the officers “more readily, more frequently, and more privately than could an average citizen.” Matthews v. City of New York, 957 F. Supp. 2d. 442, 465 (S.D.N.Y. 2013). We do not consider
23

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the relative degree of access to be material; rather what matters is whether the same or a similar channel exists for the ordinary citizen. If courts were to confine their focus to the degree of access, then internal public employee speech on matters of public concern not made as part of regular job duties would be unlikely to receive First Amendment protection because, presumably, employees always have better access to senior supervisors within their place of employment.
Here, Matthews pursued the same avenue to complain about a precinct‐wide policy as would a concerned civilian. The channel Matthews chose to address his concerns about the quota system thus reinforces our conclusion that Matthews spoke as a citizen, not as a public employee.
CONCLUSION For the reasons stated above, we VACATE the district court’s grant of defendants’ motions for summary judgment and REMAND for further proceedings consistent with this opinion.
24

 
 Case 1:12-cv-01354-PAE Document 67 Filed 12/0r7./=1=5==P=a=g=e=1=o:f:3:::::::~inl·~-1. ~.
USDCSDNY

DOCUMENT

ELECTRO:\ICALLY FILED

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DOC #:_ _ _ _;--:::;
DATE FILED : { G( T(f:) ~I

-------- --- ---------------- ---~--- ---- - ------~ --------------------- X

CRAIG MATTHEWS,
Plaintiff,
-against-
CITY OF NEW YORK; WILLIAM BRATTON, as Commissioner of the New York City Police Department; JON BLOCH, a deputy inspector in the New York City Police Department; MARK SEDRAN, a lieutenant in the New York City Police Department,
Defendants.

STIPULATION AND ORDER OF SETTLEMENT
AND DISMISSAL
12 CN 1354(PAE)

--------------------------------------------------------------------- X

WHEREAS, the plaintiff commenced a civil action in the United States District Court, Southern District of New York, on February 23, 2012 alleging violation of the Free Speech provisions of the First Amendment to the United States Constitution and the New York State Constitution; and
WHEREAS, defendants denied any and all liability arising out of plaintiffs allegations; and
WHEREAS, no party herein is an infant or incompetent for whom a committee has been appointed; and
WHEREAS, there is no person not a party who has any interest in the subject matter of this proceeding; NOW, THEREFORE,
IT IS HEREBY STIPULATED, by and between the parties, as represented below, and ORDERED as follows:

Case 1:12-cv-01354-PAE Document 67 Filed 12/07/15 Page 2 of 3
1. Upon defendants, compliance with paragraph 2, the above-referenced action is dismissed, with prejudice, and without costs, expenses, or fees in excess of the amount specified in paragraph "2" below.
2. Defendant City ofNew York hereby agrees: i) to void plaintiff's 2011 evaluation's 2.5 rating and to confirm in writing that plaintiff is no longer subject to Level 1 Command Monitoring as a result of his 2011 negative rating now deemed void;
ii) to pay plaintiff back wages in the total amount of $32,582.78, less lawful deductions, including but not limited to taxes;
iii) to pay plaintiff compensatory damages in the amount of$125,000; and
iv) to pay the New York Civil Liberties Union Fotmdation attorney fees in the amount of $130,000.
3. Plaintiff shall execute and deliver to defendants' attorney all documents necessary to effect this settlement, including, without limitation, a release based on the terms of paragraph 2 above and an affidavit regarding Liens.
4. Nothing contained herein shall be deemed to be an admission by any of the defendants that they have in any manner or way violated plaintiff's rights, or the rights of any other person or entity, as defined in the constitutions, statutes, ordinances, rules or regulations of the United States, the State of New York, or the City of New York or any other rules, regulations or bylaws of any department or subdivision of the City of New York. The plaintiff agrees not to seek to admit or use this stipulation in any other litigation or settlement negotiations.
-2-

Case 1:12-cv-01354-PAE Document 67 Filed 12/07/15 Page 3 of 3

5. Nothing contained herein shull be deemed to constitute a policy or

practice of the City of New York.

6, This Stipulation and Order contains all the terms and conditions agreed

upon by the parties hereto, and no oral agreement entered into at any time nor any wl'itten

agreement entered into prior to the execution of this Stipulation and Order regarding the

subject matter of the instant proceeding shall be deemed to exist, or to bind the parties hereto, or

to vary the te1ms or conditions contained therein.

Dated:

New York, New York December_]_, 2015

New York Civil Liberties Union Foundation Attorney for Plaintiff 125 Broad Street, 19111 Floor New York, N.Y. 10004 212- 607-3399
By: z :__. E. ?.._L.J
Erin Beth Harrist Christopher Dunn New York Civil Liberties Union Foundation

ZACHARY W. CARTER Corpomtion Counsel ofthe City of New York Attorney for Defendants 100 Church Street, Room 2-105 New York, New York 10007 212-356-2434
By: 4-fi~
Will iam S.J. Fraenkel Assistant Corporation Counsel

SO ORDERED:
puvd ~:fi.rky
Dated

 
 Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 1 of 9
CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:12−cv−01354−PAE

Matthews v. City of New York et al Assigned to: Judge Paul A. Engelmayer Referred to: Magistrate Judge Debra C. Freeman (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/23/2012 Date Terminated: 12/07/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Craig Matthews

represented by Christopher T Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344−3005 Fax: (212) 344−3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

Erin Beth Harrist New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 (212)−607−3300 Fax: (212)−607−3318 Email: eharrist@nyclu.org ATTORNEY TO BE NOTICED

V. Defendant City of New York
Defendant Raymond Kelly as Commissioner of the New York City Police Department
Defendant Jon Bloch a deputy inspector in the New York City Police Department
Defendant Mark Sedran a lieutenant in the New York City Police Department

represented by William Solomon Jacob Fraenkel NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 212−788−0303 Fax: 212−788−0940 Email: wfraenke@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Solomon Jacob Fraenkel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Solomon Jacob Fraenkel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Solomon Jacob Fraenkel (See above for address) LEAD ATTORNEY

Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 2 of 9 ATTORNEY TO BE NOTICED

Date Filed 02/23/2012 02/23/2012 02/23/2012 02/23/2012 02/27/2012 02/29/2012
03/05/2012 03/05/2012 03/05/2012 03/05/2012 03/05/2012 03/06/2012 03/09/2012
03/09/2012

# Docket Text
1 COMPLAINT against Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Filing Fee $ 350.00, Receipt Number 465401030545)Document filed by Craig Matthews.(rdz) (Entered: 02/27/2012)
SUMMONS ISSUED as to Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (rdz) (Entered: 02/27/2012)
Magistrate Judge Debra C. Freeman is so designated. (rdz) (Entered: 02/27/2012)
Case Designated ECF. (rdz) (Entered: 02/27/2012)
2 NOTICE OF APPEARANCE by William Solomon Jacob Fraenkel on behalf of Jon Bloch, City of New York, Raymond Kelly, Mark Sedran (Fraenkel, William) (Entered: 02/27/2012)
3 ORDER: The Court is in receipt of Plaintiff's letter request that the Court schedule a conference so that he may present an Order to Show Cause to expedite discovery and to schedule a preliminary injunction hearing in this matter. The Parties are directed to appear for such conference on March 8, 2012, at 2:30 p.m. in Courtroom 17C of the United States District Court, 500 Pearl Street, New York, NY 10007. (Signed by Judge Barbara S. Jones on 2/29/2012) (mro) Modified on 3/2/2012 (mro). (Entered: 03/01/2012)
4 AFFIDAVIT OF SERVICE. Raymond Kelly served on 2/24/2012, answer due 3/16/2012. Service was accepted by Dimitriy Aranov. Document filed by Craig Matthews. (Dunn, Christopher) (Entered: 03/05/2012)
5 AFFIDAVIT OF SERVICE. Jon Bloch served on 2/24/2012, answer due 3/16/2012. Service was accepted by Syria Henriquez. Document filed by Craig Matthews. (Dunn, Christopher) (Entered: 03/05/2012)
6 AFFIDAVIT OF SERVICE. Mark Sedran served on 2/24/2012, answer due 3/16/2012. Service was accepted by Syria Henriquez. Document filed by Craig Matthews. (Dunn, Christopher) (Entered: 03/05/2012)
7 AFFIDAVIT OF SERVICE. City of New York served on 2/24/2012, answer due 3/16/2012. Service was accepted by Dimitriy Aronov. Document filed by Craig Matthews. (Dunn, Christopher) (Entered: 03/05/2012)
8 AFFIDAVIT OF SERVICE. Service was accepted by Dimitriy Aronov. Document filed by Craig Matthews. (Dunn, Christopher) (Entered: 03/05/2012)
9 ENDORSED LETTER addressed to Judge Barbara S. Jones from William S.J. Fraenkel dated 3/1/2012 re: Request for rescheduling of March 8th conference. ENDORSEMENT: The conference is rescheduled for 10:00 a.m. on March 9, 2012. (Signed by Judge Barbara S. Jones on 3/5/2012) (rjm) (Entered: 03/06/2012)
10 ORDER: After hearing the parties' arguments at a conference on March 9, 2012, regarding Plaintiff's Order to Show Cause to Expedite Discovery and to Schedule Preliminary Injunction Proceedings, the Court denies Plaintiff's request for expedited discovery pending the Court's decision on Defendant's Motion to Dismiss. Defendant shall submit its Motion to Dismiss and supporting Memorandum of Law on or before Friday, March 16, 2012. The Plaintiff shall submit his Opposition Memorandum on or before Tuesday, March 27, 2012. Defendant shall submit any Reply on or before March 30, 2012. The Court will hold oral argument on the Motion to Dismiss on April 4, 2012, at 10 a.m. in Courtroom 17C of the United States District Court, 500 Pearl Street, New York, NY 10007. (Signed by Judge Barbara S. Jones on 3/9/2012) (jfe) (Entered: 03/09/2012)
Set Deadlines/Hearings: Motions due by 3/16/2012. Replies due by 3/30/2012. Responses due by 3/27/2012 Oral Argument set for 4/4/2012 at 10:00 AM in Courtroom 17C, 500 Pearl Street, New York, NY 10007 before Judge Barbara S. Jones. (jfe) (Entered: 03/09/2012)

Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 3 of 9

03/16/2012 03/16/2012 03/20/2012 03/20/2012 03/20/2012 03/27/2012 03/30/2012 04/12/2012 04/12/2012 04/20/2012 04/20/2012 04/20/2012
04/23/2012 05/04/2012

11 FIRST MOTION to Dismiss. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. Responses due by 3/27/2012 Return Date set for 4/4/2012 at 10:00 AM.(Fraenkel, William) (Entered: 03/16/2012)
12 FIRST MEMORANDUM OF LAW in Support re: 11 FIRST MOTION to Dismiss.. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Fraenkel, William) (Entered: 03/16/2012)
13 LAW STUDENT INTERN APPEARANCE FORM for Holly Mowforth, as further set forth in this document. (Signed by Judge Barbara S. Jones on 3/9/2012) (cd) (Entered: 03/20/2012)
14 LAW STUDENT INTERN APPEARANCE FORM for Jake Turner, as further set forth in this document. (Signed by Judge Barbara S. Jones on 3/9/2012) (cd) (Entered: 03/20/2012)
15 LAW STUDENT INTERN APPEARANCE FORM for Kate Deniger, and as further set forth in this document. (Signed by Judge Barbara S. Jones on 3/9/2012) (cd) (Entered: 03/20/2012)
16 MEMORANDUM OF LAW in Opposition re: 11 FIRST MOTION to Dismiss.. Document filed by Craig Matthews. (Dunn, Christopher) (Entered: 03/27/2012)
17 REPLY MEMORANDUM OF LAW in Support re: 11 FIRST MOTION to Dismiss.. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Fraenkel, William) (Entered: 03/30/2012)
18 ORDER: granting 11 Motion to Dismiss. The City's Motion to Dismiss is GRANTED. The clerk of the court is directed to terminate the motion at docket number 11. (Signed by Judge Barbara S. Jones on 4/12/2012) (pl) Modified on 4/12/2012 (pl). (Entered: 04/12/2012)
Transmission to Judgments and Orders Clerk. Transmitted re: 18 Order on Motion to Dismiss, to the Judgments and Orders Clerk. (tro) (Entered: 04/23/2012)
19 NOTICE OF APPEAL from 18 Order on Motion to Dismiss. Document filed by Craig Matthews. Filing fee $ 455.00, receipt number 0208−7399084. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Dunn, Christopher) (Entered: 04/20/2012)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 19 Notice of Appeal. (tp) (Entered: 04/20/2012)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 15 Order, 9 Endorsed Letter, Set Hearings, 1 Complaint filed by Craig Matthews, 7 Affidavit of Service Complaints filed by Craig Matthews, 6 Affidavit of Service Complaints filed by Craig Matthews, 13 Order, 17 Reply Memorandum of Law in Support of Motion filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 10 Order, 14 Order, 8 Affidavit of Service Complaints filed by Craig Matthews, 11 FIRST MOTION to Dismiss filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 19 Notice of Appeal filed by Craig Matthews, 3 Order, Set Hearings, 2 Notice of Appearance filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 4 Affidavit of Service Complaints filed by Craig Matthews, 12 Memorandum of Law in Support of Motion filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 5 Affidavit of Service Complaints filed by Craig Matthews, 18 Order on Motion to Dismiss, 16 Memorandum of Law in Opposition to Motion filed by Craig Matthews were transmitted to the U.S. Court of Appeals. (tp) (Entered: 04/20/2012)
20 CLERK'S JUDGMENT That for the reasons stated in the Court's Order dated April 12, 2012, the Citys motion to dismiss is granted. (Signed by Clerk of Court Ruby Krajick on 4/23/12) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 04/23/2012)
21 TRANSCRIPT of Proceedings re: CONFERNCE held on 4/5/2012 before Judge Barbara S. Jones. Court Reporter/Transcriber: Jennifer Thun, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/29/2012.

Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 4 of 9

05/04/2012
09/10/2012
09/10/2012
11/28/2012 12/04/2012 12/05/2012 12/07/2012
12/07/2012 12/17/2012 12/19/2012

Redacted Transcript Deadline set for 6/7/2012. Release of Transcript Restriction set for 8/6/2012.(McGuirk, Kelly) (Entered: 05/04/2012)
22 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/5/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/04/2012)
23 TRANSCRIPT of Proceedings re: ARGUMENT held on 3/9/2012 before Judge Barbara S. Jones. Court Reporter/Transcriber: Kristen Carannante, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/4/2012. Redacted Transcript Deadline set for 10/15/2012. Release of Transcript Restriction set for 12/13/2012.(McGuirk, Kelly) (Entered: 09/10/2012)
24 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 3/9/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/10/2012)
25 TRUE COPY ORDER of USCA as to 19 Notice of Appeal filed by Craig Matthews USCA Case Number 12−1622−cv. Ordered, Adjudged and Decreed that the judgment of the District Court is VACATED and the case is REMANDED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/28/2012. (nd) (Entered: 11/28/2012)
26 NOTICE OF CASE REASSIGNMENT to Judge Paul A. Engelmayer. Judge Barbara S. Jones is no longer assigned to the case. (pgu) (Entered: 12/04/2012)
27 ORDER: Conference set for 12/20/2012 at 09:00 AM before Judge Paul A. Engelmayer, and as further set forth in this document. (Signed by Judge Paul A. Engelmayer on 12/5/2012) (cd) (Entered: 12/05/2012)
28 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from Christopher Dunn dated 12/6/2012 re: Counsel requests that the Court reschedule an initial conference it set yesterday for December 20, 2012, at 9:00 a.m. ENDORSEMENT: Granted. The conference will be held at 10:00 a.m. on Monday, December 17, 2012. (Initial Conference set for 12/17/2012 at 10:00 AM before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 12/7/2012) (ft) Modified on 12/7/2012 (ft). (Entered: 12/07/2012)
***DELETED DOCUMENT. Deleted document number 29 STIPULATION AND ORDER. The document was incorrectly filed in this case. (ft) (Entered: 12/07/2012)
Minute Entry for proceedings held before Judge Paul A. Engelmayer: Initial Pretrial Conference held on 12/17/2012. Discovery to close March 1, 2013. Summary Judgment motion due 3/18/13; Response due 4/5/13; Reply due 4/12/13. Counsel will submit a Civil Case Management Plan and Scheduling Order to the Court. (mro) (Entered: 12/28/2012)
29 INITIAL CASE MANAGEMENT PLAN: Initial disclosures pertaining to all issues in the case shall be served by Friday, January 11, 2012. Requests for documents pertaining to all issues in the case may be served at any time after December 18, 2012. Deposition due by 3/1/2013. Motions due by 3/18/2013. Responses due by 4/5/2013. Replies due by 4/12/2013. To the extent the case proceeds beyond the summary judgment stage described in paragraph 4, the Court shall set a separate schedule for additional discovery and pre−trial proceedings. (Signed by Judge Paul A. Engelmayer on 12/19/2012) (ft) (Entered: 12/19/2012)

Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 5 of 9

12/19/2012
12/19/2012 01/15/2013 02/21/2013 02/27/2013
03/04/2013 05/20/2013 05/20/2013 05/20/2013
05/20/2013 06/07/2013 06/07/2013
06/07/2013 06/07/2013
06/10/2013
06/10/2013 06/12/2013

30 MANDATE of USCA (Certified Copy) as to 19 Notice of Appeal filed by Craig Matthews USCA Case Number 12−1622−cv. Ordered, Adjudged and Decreed that the order of the District Court is VACATED and the case is REMANDED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 12/19/2012. (nd) (Entered: 12/19/2012)
Transmission of USCA Mandate/Order to the District Judge re: 30 USCA Mandate,. (nd) (Entered: 12/19/2012)
31 ANSWER to 1 Complaint. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran.(Fraenkel, William) (Entered: 01/15/2013)
32 NOTICE OF APPEARANCE by Erin Beth Harrist on behalf of Craig Matthews (Harrist, Erin) (Entered: 02/21/2013)
33 REVISED CASE MANAGEMENT PLAN: Defendants' Summary Judgment Motions due by 5/20/2013. Responses due by 6/7/2013 Replies due by 6/14/2013. Deposition due by 5/3/2013. There will be no further extensions of these deadlines. (Signed by Judge Paul A. Engelmayer on 2/27/2013) (djc) Modified on 2/27/2013 (djc). (Entered: 02/27/2013)
34 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Paul A. Engelmayer on 3/4/2013) (djc) (Entered: 03/04/2013)
35 MOTION for Summary Judgment. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. Responses due by 6/7/2013(Fraenkel, William) (Entered: 05/20/2013)
36 MEMORANDUM OF LAW in Support re: 35 MOTION for Summary Judgment.. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Fraenkel, William) (Entered: 05/20/2013)
37 AFFIDAVIT of William S.J. Fraenkel, Esq. in Support re: 35 MOTION for Summary Judgment.. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Fraenkel, William) (Entered: 05/20/2013)
38 RULE 56.1 STATEMENT. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Fraenkel, William) (Entered: 05/20/2013)
39 MEMORANDUM OF LAW in Opposition re: 35 MOTION for Summary Judgment.. Document filed by Craig Matthews. (Harrist, Erin) (Entered: 06/07/2013)
40 DECLARATION of Erin Beth Harrist in Opposition re: 35 MOTION for Summary Judgment.. Document filed by Craig Matthews. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13)(Harrist, Erin) (Entered: 06/07/2013)
41 AFFIDAVIT of Craig Matthews in Opposition re: 35 MOTION for Summary Judgment.. Document filed by Craig Matthews. (Harrist, Erin) (Entered: 06/07/2013)
42 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − RESPONSE in Opposition re: 35 MOTION for Summary Judgment. Response to Defendants' 56.1 Statement and Plaintiff's 56.1 Counterstatement. Document filed by Craig Matthews. (Harrist, Erin) Modified on 6/10/2013 (db). (Entered: 06/07/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Erin Beth Harrist to RE−FILE Document 42 Response in Opposition to Motion. Use the event type Counter Statement to Rule 56.1 found under the event list Other Answers. (db) (Entered: 06/10/2013)
43 COUNTER STATEMENT TO 38 Rule 56.1 Statement. Document filed by Craig Matthews. (Harrist, Erin) (Entered: 06/10/2013)
44 ENDORSED LETTER addressed to Judge Paul A. Engelmayer from William S.J. Fraenkel dated 6/11/2013 re: I am an Assistant Corporation Counsel in the office of

Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 6 of 9

06/14/2013 06/14/2013 07/19/2013 07/29/2013
07/29/2013 07/30/2013 07/30/2013 08/01/2013 08/01/2013
08/01/2013 08/01/2013 08/01/2013 08/01/2013

Michael A. Cardozo, Corporation Counsel of the City of New York, assigned to represent the defendants in this matter. I write in response to plaintiff's letter of yesterday afternoon which requested oral argument on defendants' summary judgment motion. Defendants' reply papers concerning this motion are to be filed this Friday June 14th. Should the Court elect to grant plaintiff's request for oral argument, I wish to inform the Court that I will be out of the country from June 30th through July 8th, and unavailable on June 20th, 27th and July 16th. ENDORSEMENT: Oral argument will be held on July 19, 2013, at 10:00 a.m. (Oral Argument set for 7/19/2013 at 10:00 AM before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 6/12/2013) (djc) (Entered: 06/12/2013)
45 REPLY MEMORANDUM OF LAW in Support re: 35 MOTION for Summary Judgment.. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Fraenkel, William) (Entered: 06/14/2013)
46 REPLY AFFIDAVIT of William S.J. Fraenkel in Support re: 35 MOTION for Summary Judgment.. Document filed by Jon Bloch, City of New York, Raymond Kelly, Mark Sedran. (Fraenkel, William) (Entered: 06/14/2013)
Minute Entry for proceedings held before Judge Paul A. Engelmayer: Oral Argument held on 7/19/2013 re: 35 MOTION for Summary Judgment. filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York. Court's decision reserved. (Court Reporter Ann Hairston) (Hummel, June) (Entered: 07/19/2013)
47 OPINION & ORDER re: 35 MOTION for Summary Judgment filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York. For the reasons stated, defendants' motion for summary judgment is granted. The Clerk of Court is directed to terminate the motion pending at docket number 35, and to close this case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 7/29/2013) (rsh) (Entered: 07/29/2013)
Transmission to Judgments and Orders Clerk. Transmitted re: 47 Memorandum & Opinion to the Judgments and Orders Clerk. (rsh) (Entered: 07/29/2013)
48 CLERK'S JUDGMENT: That for the reasons stated in the Court's Opinion and Order dated July 29, 2013, defendants motion for summary judgment is granted; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 7/30/2013) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 07/30/2013)
Terminate Transcript Deadlines (dt) (Entered: 07/30/2013)
49 FILING ERROR − NO ORDER SELECTED FOR APPEAL − NOTICE OF APPEAL. Document filed by Craig Matthews. Filing fee $ 455.00, receipt number 0208−8744191. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Dunn, Christopher) Modified on 8/1/2013 (tp). (Entered: 08/01/2013)
***NOTE TO ATTORNEY REGARDING DEFICIENT APPEAL. Note to Attorney Dunn, Christopher to RE−FILE Document No. 49 Notice of Appeal. No Order being appealed was selected. Re−file the document as a Corrected Notice of Appeal event and select the correct Order being appealed. (tp) (Entered: 08/01/2013)
50 CORRECTED NOTICE OF APPEAL re: 49 Notice of Appeal, 47 Memorandum & Opinion,. Document filed by Craig Matthews. (Dunn, Christopher) (Entered: 08/01/2013)
Appeal Fee Paid electronically via Pay.gov: for 50 Corrected Notice of Appeal. Filing fee $ 455.00. Pay.gov receipt number 0208−8744191, paid on 8/1/2013. (tp) (Entered: 08/01/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 50 Corrected Notice of Appeal. (tp) (Entered: 08/01/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 15 Order, 9 Endorsed Letter, Set Hearings, 49 Notice of Appeal, filed by Craig Matthews, 1 Complaint filed by Craig Matthews, 32 Notice of Appearance filed by Craig Matthews, 20 Clerk's Judgment, 39 Memorandum of Law in Opposition to Motion filed by Craig Matthews, 45 Reply Memorandum of Law in Support of Motion filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New

Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 7 of 9

08/09/2013 08/09/2013 02/26/2015 08/03/2015
08/03/2015

York, 37 Affidavit in Support of Motion, filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 7 Affidavit of Service Complaints filed by Craig Matthews, 38 Rule 56.1 Statement filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 27 Order, Set Deadlines/Hearings, 34 Protective Order, 50 Corrected Notice of Appeal filed by Craig Matthews, 47 Memorandum & Opinion, 33 Case Management Plan, 23 Transcript, 24 Notice of Filing Transcript, 6 Affidavit of Service Complaints filed by Craig Matthews, 13 Order, 17 Reply Memorandum of Law in Support of Motion filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 10 Order, 22 Notice of Filing Transcript, 46 Reply Affidavit in Support of Motion filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 25 USCA Order, 30 USCA Mandate, 14 Order, 42 Response in Opposition to Motion, filed by Craig Matthews, 8 Affidavit of Service Complaints filed by Craig Matthews, 11 FIRST MOTION to Dismiss filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 36 Memorandum of Law in Support of Motion filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 21 Transcript, 44 Endorsed Letter, Set Hearings, 26 Notice of Case Assignment/Reassignment, 19 Notice of Appeal filed by Craig Matthews, 35 MOTION for Summary Judgment filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 43 Counter Statement to Rule 56.1 filed by Craig Matthews, 48 Clerk's Judgment, 3 Order, Set Hearings, 2 Notice of Appearance filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 29 Case Management Plan, 4 Affidavit of Service Complaints filed by Craig Matthews, 41 Affidavit in Opposition to Motion filed by Craig Matthews, 28 Endorsed Letter, Set Hearings, 40 Declaration in Opposition to Motion, filed by Craig Matthews, 31 Answer to Complaint filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 12 Memorandum of Law in Support of Motion filed by Jon Bloch, Mark Sedran, Raymond Kelly, City of New York, 5 Affidavit of Service Complaints filed by Craig Matthews, 18 Order on Motion to Dismiss, 16 Memorandum of Law in Opposition to Motion filed by Craig Matthews were transmitted to the U.S. Court of Appeals. (tp) (Entered: 08/01/2013)
51 TRANSCRIPT of Proceedings re: CONFERENCE held on 7/19/2013 before Judge Paul A. Engelmayer. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 9/3/2013. Redacted Transcript Deadline set for 9/12/2013. Release of Transcript Restriction set for 11/12/2013.(Rodriguez, Somari) (Entered: 08/09/2013)
52 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 7/19/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 08/09/2013)
53 OPINION of USCA as to 50 Corrected Notice of Appeal filed by Craig Matthews. USCA Case Number 13−2915−cv. For the reasons stated in this opinion, we VACATE the District Court's grant of defendants' motions for summary judgment and REMAND for further proceedings consistent with this opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 02/26/2015. (nd) (Entered: 02/26/2015)
54 MANDATE of USCA (Certified Copy) as to 50 Corrected Notice of Appeal, filed by Craig Matthews. USCA Case Number 13−2915. The appeal in the above captioned case from an order of the United States District Court for the Southern District of New York was argued on the district court's record and the parties' briefs. Upon consideration thereof, IT IS HEREBY ORDERED, ADJUDGED and DECREED that the district court's grant of Appellees' motions for summary judgment is VACATED and the matter is REMANDED for further proceedings in accordance with the 53 opinion of this court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 03/30/2015. (Attachments: # 1 Opinion)(nd) (Entered: 08/03/2015)
Transmission of USCA Mandate to the District Judge re: 54 USCA Mandate,,. (nd) (Entered: 08/03/2015)

Case: 1:12-cv-1354 As of: 11/05/2017 11:11 PM EST 8 of 9

08/03/2015 08/12/2015
08/20/2015 08/21/2015
08/21/2015 10/27/2015 11/05/2015 11/17/2015 11/18/2015 11/25/2015 11/30/2015

55 Costs Taxed as to 54 USCA Mandate,, USCA Case Number 13−2915. in the amount of $455.00. on 08/03/2015 in favor of Craig Matthews, Plaintiff−Appellant, against City of New York, Raymond Kelly, as Commissioner of the New York City Police Department, Jon Bloch, a deputy inspector in the New York City Police Department, Mark Sedran, a lieutenant in the New York City Police Department, Defendants−Appellees.. (nd) (Entered: 08/03/2015)
56 NOTICE OF PRETRIAL CONFERENCE: On February 26, 2015, the Second Circuit vacated this Court's grant of defendants' motion for summary judgment and remanded for further proceedings. Dkt. 53. The Circuit's mandate to this Court issued on August 3, 2015. Dkt. 54. The Court directs counsel for all parties to prepare a Revised Civil Case Management Plan and Scheduling Order in accordance with the Court's Individual Rules, available at http://www.nysd.uscourts.gov/judge/Engelmayer, to be submitted to the Court by Friday, August 21, 2015. The proposed schedule should contemplate the completion of all fact discovery by Friday, November 20, 2015. The Court also directs counsel for all parties to appear at a pretrial conference with the Court on Friday, December 18, 2015 at 10:30 a.m. in Courtroom 1305 at the Thurgood Marshall U.S. Courthouse, 40 Centre Street, New York, New York 10007. (As further set forth in this Order) (Fact Discovery due by 11/20/2015., Pretrial Conference set for 12/18/2015 at 10:30 AM in Courtroom 1305, 40 Centre Street, New York, NY 10007 before Judge Paul A. Engelmayer.) (Signed by Judge Paul A. Engelmayer on 8/12/2015) (kl) (Entered: 08/12/2015)
57 LETTER addressed to Judge Paul A. Engelmayer from Plaintiff dated 8/20/2015 re: submission of proposed case management plan. Document filed by Craig Matthews.(Harrist, Erin) (Entered: 08/20/2015)
58 CASE MANAGEMENT PLAN AND SCHEDULING ORDER: The parties do not consent to conducting all further proceedings before a Magistrate Judge, including motions and trial. 28 U.S,C. § 636(c). This case is to be tried to a jury. Deposition due by 11/20/2015. Fact Discovery due by 11/20/2015. Expert Discovery due by 1/4/2016. Counsel for the parties have conferred and their present best estimate of the length of trial is 5 days. Case Management Conference set for 12/18/2015 at 10:30 AM before Judge Paul A. Engelmayer. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 8/21/2015) (kl) (Entered: 08/21/2015)
59 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Debra C. Freeman. Plaintiff's counsel will contact the Magistrate Judge to schedule a settlement conference when both parties are ready. (Signed by Judge Paul A. Engelmayer on 8/21/2015) (kl) (Entered: 08/21/2015)
Minute Entry for proceedings held before Magistrate Judge Debra C. Freeman: Settlement Conference held via telephone on 10/27/2015. (aba) (Entered: 10/27/2015)
60 LETTER addressed to Magistrate Judge Debra C. Freeman from Plaintiff's Counsel dated November 5, 2015 re: status of settlement discussions. Document filed by Craig Matthews.(Harrist, Erin) (Entered: 11/05/2015)
61 LETTER MOTION for Discovery Deadline Adjournment Given Agreement on Material Terms of Settlement addressed to Judge Paul A. Engelmayer from Plaintiff's Counsel dated 11/17/2015. Document filed by Craig Matthews.(Harrist, Erin) (Entered: 11/17/2015)
62 ORDER granting 61 Letter Motion for Discovery. The Court appreciates the notification. The parties' request to adjourn the discovery deadlines set in the case management plan is GRANTED. (Signed by Judge Paul A. Engelmayer on 11/18/2015) (kl) (Entered: 11/18/2015)
63 LETTER addressed to Judge Paul A. Engelmayer from Plaintiff's Counsel dated November 25, 2015 re: settlement update. Document filed by Craig Matthews.(Harrist, Erin) (Entered: 11/25/2015)
64 MEMO ENDORSEMENT on re: 63 Letter request regarding settlement update, filed by Craig Matthews. ENDORSEMENT: The Court appreciates the notification. The parties are directed to either submit a proposed stipulation of discontinuance and order of dismissal, or a revised proposed case management plan, by December 4, 2015. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/30/2015) (kl) (Entered:

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11/30/2015)
65 LETTER MOTION for Extension of Time by one business day to submit proposed stipulation and order addressed to Judge Paul A. Engelmayer from Plaintiff's Counsel dated December 3, 2015. Document filed by Craig Matthews.(Harrist, Erin) (Entered: 12/03/2015)
66 ORDER granting 65 Letter Motion for Extension of Time. GRANTED. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 12/4/2015) (kl) (Entered: 12/04/2015)
67 STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: IT IS HEREBY STIPULATED, by and between the parties, as represented below, and ORDERED as follows: Upon defendants, compliance with paragraph 2, the above−referenced action is dismissed, with prejudice, and without costs, expenses, or fees in excess of the amount specified in paragraph "2" below. Defendant City of New York hereby agrees: i) to void plaintiff's 2011 evaluation's 2.5 rating and to confirm in writing that plaintiff is no longer subject to Level 1 Command Monitoring as a result of his 2011 negative rating now deemed void; ii) to pay plaintiff back wages in the total amount of $32,582.78, less lawful deductions, including but not limited to taxes; iii) to pay plaintiff compensatory damages in the amount of $125,000; and iv) to pay the New York Civil Liberties Union Foundation attorney fees in the amount of $130,000. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 12/7/2015) (kl) (Entered: 12/07/2015)
Terminate Transcript Deadlines (kl) (Entered: 12/07/2015)