1 17-3233 Conte v. Bergeson 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

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

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13 th day of March, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, DEBRA ANN LIVINGSTON, CHRISTOPHER F. DRONEY, Circuit Judges.

_____________________________________ Renata Conte, Plaintiff-Appellant , v. 17-3233 Rachel Bergeson, in her Of ficial and Individual capacity, Samuel L. Stanley, Jr., in his Official and Individual capacity, Peter Baigent, in his Official and Individual capacity, Jerrold Stein, in his Official and Individual ca pacity, Sharon Fletcher, in her Official and Individu al capacity, Joann Goetz, in her Official and Individual capacity, Susan Blum, in her Official and Individual capacity, Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT: Renata Conte, pro se, South Setauket, NY.2 FOR DEFENDANTS-APPELLEES: David S. Frankel, Assistant Solicitor General, Anisha Dasgputa, Deputy Solicitor General, for Barbara D. Underwood, Attorney General, State of New York, New York, NY. Appeal from a judgment of the United States Di strict Court for the Eastern District of New York (Azrack, J .; Lindsay, M.J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED. Appellant Renata Conte, pro se, 1 filed a 42 U.S.C. § 1983 acti on against Rachel Bergeson and other employees of the State University of New York at Stony Brook, alleging violations of her First and Fourteenth Amendment rights, as we ll as state law. Conte, a licensed pharmacist, asserted that the defendants retaliated against he r and refused to renew her employment contract because she complained to the New York State Board of Pharmacy about Bergeson’s alleged illegal dispensation of medication. The dist rict court granted the defendants’ motion for summary judgment, and Conte now appeals. We assume the parties’ familiarity with the underlying facts, the procedural hi story, and the issues on appeal.

We review the district c ourt’s grant of summary judgmen t de novo, “viewing the evidence in the light most favorable to the non-moving party.” Cotarelo v. Vill. of Sleepy Hollow Police Dep’t , 460 F.3d 247, 251 (2d Cir. 2006) . Summary judgment is appropriate when there are “no genuine material issues of fact and the moving part y is entitled to judgmen t as a matter of law.”

Id

.

1 Conte was represented by counsel until the magistrate judge issued a report and recommendation dismissing her case in August 2017.3 “To survive a motion for summary judgment on a First Amendment retaliation claim, the plaintiff must present evidence which shows [1] th at the speech at issue was protected, [2] that [s]he suffered an adverse employment action, an d [3] that there was a causal connection between the protected speech and the adverse employment action.” Id . (internal quotation marks and citation omitted). Courts conduct a two-step in quiry to determine whether a public employee’s speech is protected. “‘The first [step] require s determining whether the employee spoke as a citizen on a matter of public concern.’” Matthews v. City of New York , 779 F.3d 167, 172 (2d Cir. 2015) (quoting Garcetti v. Ceballos , 547 U.S. 410, 418 (2006)). Th is first step, in turn, “encompasses two separate subquestions: (1) whet her the subject of the employee’s speech was a matter of public concern and (2) whether the employ ee spoke ‘as a citizen’ rather than solely as an employee.” Id. (internal citation and quotation marks omitted). If the answer to either question is no, that is the end of the matter. If . . . 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 trea ting the employee differently from any other member of the public ba sed on the government’s needs as an employer.”

Id. (quoting Lane v. Franks , 573 U.S. 228, 237 (2014)). To assess whether the plaintiff’s speech wa s a matter of public conc ern, courts consider “whether the employee’s speech was calculated to redress personal gr ievances or whether it had a broader public purpose.” Ruotolo v. City of New York , 514 F.3d 184, 189 (2d Cir. 2008) (internal quotation marks and citation omitted). To determin e whether a plaintiff spoke as an employee or a citizen, courts examine “the nature of the plainti ff’s job responsibilities, th e nature of the speech, and the relationship between the two.” Ross v. Breslin , 693 F.3d 300, 306 (2d Cir. 2012). “Speech can be ‘pursuant to’ a public employee’s official job duties even though it is not required4 by or included in that employee’s job description.” Weintraub v. Bd. of Educ. , 593 F.3d 196, 203 (2d Cir. 2010) (concluding that speech was pursuant to employee’s official duties because it related to his “ability to properly execute his duties”). Conte argues that her grievances to an outsi de regulatory body—the New York State Board of Pharmacy—were a matter of public concern b ecause, by complaining about an individual who was dispensing medication without a license, she wa s voicing a concern rela ted to the well-being of the Stony Brook student body. We ag ree with the district court that this claim fails at step one of the analysis because, even if Conte is correct that her complaints were about a matter of public concern, she was speaking as an employee, pursuant to her job duties, rather than as a private

citizen. See Ross , 693 F.3d at 305 (stating that the “Constitution does not insulate” public employees making statements pursuant to their official duties from employer discipline “even when the subject of an employee’s speech is a ma tter of public concern”). Conte’s duties as a supervising pharmacist included en suring that the pharmacy was in “compliance with the laws and regulations of federal and stat e agencies governing pharmac[ies].” Defendants’ App. at 299. While it may not have been explicitly within Cont e’s job description to f ile her grievance about the pharmacy’s lack of complia nce with an outside body, and th e Board invites and receives complaints from the general public, those facts do not render her speech that of a private citizen. “[T]he existence of a civilian analogue is not dispositive of whether a public employee spoke as a private citizen . . . .” Montero v. City of Yonkers , 890 F.3d 386, 394 (2d Cir. 2018). Rather, it is “merely a factor” that a cour t can consider “as part of the inquiry into wh ether the public employee’s speech was made pursuant to his ordi nary employment-related responsibilities.” Id. Here, Conte’s complaint to the Board concerned the pharmacy’s failure to abide by applicable rule5 and regulations, which was squarely part of he r job duties. Accordi ngly, the district court properly ruled that Conte’s speech was not protected by the First Amendment. We also perceive no error in the district court’s dismissal of Conte’s Fourteenth Amendment due process claims. To assert a property interest under procedural due process rights, a public employee must have a “legitimat e claim of entitlement” to continued employment, such as a “state statute or University rule or policy.” Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 577-78 (1972). Here, Conte does not argue that there was a written policy that provided her with a property interest in he r job. Rather, she asserts that she had de facto tenure rights akin to the plaintiff in Perry v. Sindermann , 408 U.S. 593 (1972). But Perry is distinguishable; in that case, the employee relied on a faculty guide, whic h stated that the college “wishes the faculty member to feel that he has permanent tenure,” as well as on the college’s guidelines, which stated that an employee who worked for at least seven years had a form of tenure. 408 U.S. at 600. Conte does not cite similar evidence indicating th at Stony Brook’s renewal of her annual contract amounted to tenure. Moreover, Conte conceded that the defendants had discretion to decide

whether she should continue to be employed, which militates against a finding of tenure. Because “a benefit is not a protected entitlement if gover nment officials may grant or deny it in their discretion,” Town of Castle Rock v. Gonzales , 545 U.S. 748, 756 (2005), Conte did not have a protected property interest in continued employment. We have considered Conte’s remaining argumen ts and find them to be without merit. Accordingly, we AFFIRM the district court’s decision.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court