13

‐ 2915

‐ cv

Matthews v. City of New York

In the

United States Court of Appeals

For the Second Circuit

________

A UGUST T ERM

, 2013

A RGUED : A PRIL 24, 2014

D ECIDED : F EBRUARY 26, 2015

No. 13

‐ 2915

‐ cv

C RAIG M ATTHEWS

, Plaintiff

‐ Appellant,

v.

C ITY OF N EW Y ORK ; R AYMOND K ELLY

, as Commissioner of the New

York City Police Department; J ON B LOCH

, a deputy inspector in the

New York City Police Department; and M ARK S EDRAN

, 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: W ALKER and H ALL

, Circuit Judges

, and M URTHA

, District

Judge

. *

________

* The Honorable J. Garvan Murtha, of the United States District Court

for the District of Vermont, sitting by designation.2 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.

________

C HRISTOPHER D UNN

, (Erin Harrist, Arthur

Eisenberg, Alexis Karterton, on the brief ), New

York Civil Liberties Union Foundation, New

York, N.Y., for Appellant

.

M ARTA R OSS

, (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.

________3 J OHN M. W ALKER

, J R

., 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,4 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 28.5 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 his6 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 distinct7 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 an8 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, or9 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 of10 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 of11 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 employee ʹ s

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 not12 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 matters13 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)

.14 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

‐ 25.15 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,16 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

‐17 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 not18 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 or19 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,20 “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 to21 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 D ISCUSSION

, 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))).22 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 204.23 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 consider24 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.