11-3486-cv Looney v. Black et al. 1 UNITED STATES COURT OF APPEALS 2 F OR THE S ECOND C IRCUIT 3

_______________ 4 August Term, 2012 5 (Argued: September 27, 2012 Decided: December 21, 2012) 6

Docket No. 11-3486 7

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P ATRICK L OONEY , 9 10 Plaintiff-Appellee , 11 – v. – 12 13 W ILLIAM B LACK , R IVA R. C LARK , AND J OSEPH L A B ELLA , 14 15 Defendants-Appellants , 16 T OWN OF M ARLBOROUGH , 17 18 Defendant. 19

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Before: J ACOBS , Chief Judge , S TRAUB AND D RONEY , Circuit Judges

. 21

_______________ 22 An appeal from an order of the United Stat es District Court for the District of 23 Connecticut (Vanessa L. Bryant, Judge ), denying Defendants-Appe llants Black, Clark, and 24 LaBella’s motion to dismiss on the ground that th ey were each entitled to qualified immunity. 25 We hold that the District Court erred in determ ining that defendant Black was not entitled to 26 qualified immunity as to plaintiff’ s procedural due process claim, as plaintiff does not adequately 27 allege that he had a constitutionally protected pr operty right in retaining full-time, rather than 28 part-time, employment. We hold also that th e District Court erred in determining that 29 defendants Black, Clark, and LaBell a were not entitled to qualified immunity as to plaintiff’s 30 claim under the First Amendment, as plaintiff does not adequately allege he engaged in protected 31 speech made as a private citizen. 32 Accordingly, the order of the District Court is REVERSED , and the case is 33 REMANDED with direction to enter judgment for the Defendants-Appellants. 34 35 Judge D RONEY dissents in a separate opinion. 362 _______________ 1

J ACQUES J. P ARENTEAU (Justin E. Theriault, on the brief ), Madsen, Prestley & 2 Parenteau, LLC, New London, CT, for Plaintiff-Appellee

. 3 4 M ICHAEL J. R OSE (Robin B. Kallor and Johanna G. Zelman, on the brief ), 5 Rose Kallor LLP, Hartford, CT, Andr ew L. Houlding, Rome McGuigan, 6 P.C., Hartford, CT, for Defendants-Appellants. 7

_______________ 8 9 S TRAUB , Circuit Judge : 10 Plaintiff Patrick Looney served as the Building Official for the Town of Marlborough, 11

Connecticut from 1994 until 2010. He now sues Marlborough as well as three members of 12 Marlborough’s Board of Selectmen, Defendant s-Appellants William Black, Riva Clark, and 13 Joseph LaBella, under 42 U.S.C. § 1983, alleging that he was deprived of his procedural due 14 process and free speech rights when his position was reduced from full to part time after he made 15 certain statements regarding the use of wood-bur ning stoves, as well as when he subsequently 16 was not reappointed as the town’s Building Official. 17 For the reasons that follow, we hold that the District Court erred in determining that 18 Defendant-Appellant Black was not entitled to qu alified immunity as to Looney’s Fourteenth 19 Amendment procedural due process claim, as L ooney has not adequately alleged that he had a 20 constitutionally protected property right in full-time employment. We hold also that the District 21 Court erred in determining that Defendants-A ppellants Black, Clark, and LaBella were not 22 entitled to qualified immunity as to Looney’s First Amendment claim, as Looney does not 23 adequately allege that he spoke in his cap acity as a private citizen. Accordingly, we 24 REVERSE the order of the District Court, and REMAND the case with the direction that the 25 District Court enter judgment for Defendants-Appellants. 263 BACKGROUND 1 The following facts are drawn from the allegations in Loone y’s Second Amended 2 Complaint (“SAC”) and are assumed true for purposes of this appeal. 3 The position of Building Official is es tablished in the town of Marlborough, 4 Connecticut’s Town Charter (“Charter”). The Ch arter notes that the po wers and duties of the 5 position are prescribed by ordina nce and the Connecticut General Statutes. The Charter also 6 gives Marlborough’s Board of Selectmen the powe r to appoint all offi cers set forth therein, 7 including the Building Official. 8 Connecticut law provides that a Building Official is appointe d to a “term of four years 9 and until his successor qualifies . . . .” Conn. Gen. Stat. § 29-260(a). A Building Official may 10 be “dismissed” under the procedur es set forth in Connecticut Ge neral Statutes § 29-260(b) and 11 (c) if and when he “fails to pe rform the duties of his office.” Id. § 29-260(b), (c). The Charter 12 notes that approval of the entire Board of Selectmen is needed to discharge or remove any 13 appointed official or employee of the town, including the Building Official. 14 Looney was appointed as Marlborough’s Building Official on August 15, 1994. He 15 learned of the position from a pub lic notice that quoted a salary and stated that the position 16 included a pension and benefits package, bot h of which are available only to full-time 17 employees. Prior to his accepting the job, Marl borough’s then-First Selectman Howard Dean 18 told Looney that he would be given full-time, salaried employment at $33,000 per year, along 19 with a full benefits package. 20 Subsequently, Looney was reappointed as Marl borough’s Building Official four times, in 21 November 1995, November 1999, February 2004, and Ap ril 2006. At this last reappointment, 224 Marlborough’s Board of Selectmen “decided to ‘continue [his] appointment per C.G.S. Sec. 1 29-260(a) for an additional four years.’” (JA-90, ¶ 17.) No other conditions or terms of this 2 last reappointment were noted by the Bo ard of Selectmen at that time. 3 Throughout these appointments, and until February 2, 2010, Looney was always a 4 “full[-]time employee entit led to all benefits provided to full-time employees according to 5

Section 1.1C of the Town’s Personnel Rules an d Regulations. These benefits included, but 6 were not limited to, group health and dental insurance, group life insurance, long te rm disability 7 insurance, contributions to retirement, bereavement leave, pe rsonal days, leave of absence with 8 pay for jury duty, reimbursement/ accumulated si ck leave, holiday pay, and vacation pay.” 9 (JA-90-91, ¶ 19.) A collective bargaining agreement (“CBA ”) entered into between the town 10 and Local 1303-433 of Council 4 AFSCME, AFL- CIO (“Union”) on July 1, 2007 recognized the 11 position of Building Official as full time. 12 In October 2009, Looney filed a grievance rela ting to a purported infringement of his 13 First Amendment rights by his supervisor Peter H ughes, who served as Ma rlborough’s Planning 14 & Development Director. Hughes allegedly a ttempted “to limit [Looney’s] communication of 15 information to a Town resident regarding w ood burning boiler/stove and smoke discharge as 16 public health concerns.” (JA-91-92, ¶ 23.) 17 After Looney filed his grievance against H ughes, matters escalated. Hughes again 18 requested that Looney not “engage in discussion s of substantive matters outside his job duties 19 concerning other Town agenc[ies] or jurisdiction[s].” (JA-92, ¶ 24.) Looney continued to 20 protest Hughes’s attempts to limit his communi cation with the public and ultimately retained 21

counsel. His counsel sent Black a letter on December 23, 2009 advising him that Hughes’s 225 restriction was an “illegal prior restraint on sp eech in violation of the First Amendment.” 1 (JA-92, ¶¶ 25, 26.) Marlborough announced a week later th at it would not remove the 2 restriction Hughes had placed on Looney’s speec h, and threatened to discipline or discharge 3 Looney. On January 4, 2010, Marlborough’s counsel informed the Union that certain of its 4

members would be laid off or have their hours reduced, and that the Building Official position 5

would be reduced to 20 hours a week. 6 Looney then received a letter from Black on January 28, 2010, confir ming the reduction 7 in his hours, and stating that he would be paid “$33 per hour w ith no additional compensation for 8 loss of benefits.” (JA-93, ¶ 29.) On April 5, 2010, Looney notified Marlborough that he 9 intended to file suit against the town for the ev ents that had transpired. He then commenced 10 this litigation on June 14, 2010, asserting cl aims pursuant to 42 U.S.C. § 1983 based on 11

violations of the First Amendment and the F ourteenth Amendment procedural due process 12 guarantee. 13 After the lawsuit had commenced, Black announ ced that he planned to post a notice 14 seeking to fill the Building Official position. LaBella and Clark, as Selectmen, were included 15

in the search committee that in terviewed candidates for the po sition. Looney applied to be 16 reappointed during the applicati on period, and during his intervie w LaBella noted “that he had 17 brought a lawsuit against” Marlbor ough. (JA-94, ¶ 39.) Clark also stated during the interview 18 that she had “serious issues recommending some one who is suing the Town.” (JA-94, ¶ 40.) 19 Black, Clark, and LaBella all voted for a candi date other than Loone y to fill the position. 20 Looney was not reappointed. 21

226 On September 30, 2010, Black, Clark, and Labe lla moved to dismiss Looney’s complaint 1 on the grounds that, inter alia , all three individual defendants were entitled to qualified immunity 2 as to the applicable claims. 1 Looney then sought leave to file the SAC. The District Court 3 granted Looney’s motion to file the SAC, and denied defendants’ motion to dismiss in its 4 entirety. 5 In rejecting the argument made by Black that he was entitled to qualified immunity as to 6 Looney’s Fourteenth Amendment due process clai m, the District Court held that Looney had 7 adequately alleged a valid property in terest in full-time employment. Looney v. Town of 8 Marlborough , No. 3:10-cv-1068, 2011 WL 3290202, at *8 (D. Conn. July 30, 2011). It based 9

this determination on its unders tanding that while Looney’s alleged right to “full-time 10 employment with pension and benefits was not me morialized in a written contract,” there was a 11 sufficiently “consistent course of conduct over a period of more than fifteen years,” and Looney 12 had “relied upon those benefits to secure medical coverage for himself and his disabled spouse.” 13

Id

. Thus, the District Court determined that Looney had a constitutionally protected property 14 right under the Fourteenth Amendment. Id. 15 From this determination, the District Court further concluded that “the law was defined 16 with reasonable clarity and th at, based upon the allegations of the [SAC], Black’s conduct in 17 reducing Looney’s hours was not objectively reasonable.” Id . at *9. Accordingly, it denied 18 the motion to dismiss to the extent that Black argu ed he was entitled to qualified immunity as to 19 Looney’s procedural due process claims. 20

1 Black is the only individual defendant named in Looney ’s Fourteenth Amendment pro cedural due process claim. Black, Clark, and LaBella are all named in the First Amendm ent claim. The Town of Marlborough is named only in two separate claims that are not at issue on appeal. It did not move to dismiss the claims against it.7 The District Court then considered Black, Cl ark, and LaBella’s arguments that they were 1 entitled to qualified immunity as to Looney’s First Amendment claim. The court denied the 2 motion to dismiss on this ground as well, holding that defendants “appear[ed] to concede that 3 Looney spoke as a citizen instead of pursuant to his official duties,” and that Looney’s 4 allegations regarding the speech at issue adequa tely established that it touched on a matter of 5 public concern. Id . at *10. 6 Based on this determination, the District Court held that the SAC adequately alleged both 7 a violation of Looney’s clearly established Firs t Amendment rights, and that Black, Clark, and 8 LaBella had committed acts of retaliation against Looney for his speech, such that they did not 9 act in an objectively reasonable manner. Id. at *14. Accordingly, the Di strict Court held that 10 the individual defendants were not entitled to qualif ied immunity at this st age of the litigation as 11 to Looney’s First Amendment claims, and their motion to dismiss was denied on this ground as 12

well. 13 This timely appeal followed. 14

DISCUSSION 15 Qualified immunity provides governme nt officials “immunity from suit rather than a 16 mere defense to liability.” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (quoting Mitchell v. 17 Forsyth , 472 U.S. 511, 526 (1985)). Government o fficials who are “performing discretionary 18 functions generally are shielded from liability fo r civil damages insofar as their conduct does not 19 violate clearly established statut ory or constitutional rights of which a reasonable person would 20

have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). 218 “[T]he ‘driving force’ behind creation of the qualified immunity doctrine [is] a desire to 1 ensure that ‘“insubstantial claims” against gov ernment officials [will] be resolved prior to 2 discovery.’” Pearson , 555 U.S. at 231 (quoting Anderson v. Creighton , 483 U.S. 635, 640 n.2 3 (1987)); see also Saucier v. Katz , 533 U.S. 194, 200 (2001) (“A ru ling” on qualified immunity 4 “should be made early in the proceedings so that the cost and expenses of trial are avoided where 5 the defense is dispositive”), overruled on other grounds by Pearson , 555 U.S. 223. 6

We review a denial of qualified immunity de novo. Clubside, Inc. v. Valentin , 468 7 F.3d 144, 152 (2d Cir. 2006); Velez v. Levy , 401 F.3d 75, 84 (2d Cir. 2005). In reviewing such 8 a denial, “[f]irst, we ask whether there was a c onstitutional violation. If the answer to this 9 question is yes, we must then determine whether the right was clearly established at the time of 10

the violation.” Clubside , 468 F.3d at 152 (citing Saucier , 533 U.S. at 201). A right is clearly 11 established if the law (1) was “defined with reas onable clarity,” (2) has been affirmed by “the 12 Supreme Court or the Second Circuit[,]” and (3 ) where the conduct at issue would have been 13 understood by a reasonable defendant to be unlawful under the existing law. Young v. Cnty. of 14

Fulton , 160 F.3d 899, 903 (2d Cir. 1998); see also Reichle v. Howards , __ U.S. ___, 132 S. Ct. 15 2088, 2093 (2012) (“To be clearly established, a ri ght must be sufficiently clear that every 16

reasonable official would have unde rstood that what he is doing vi olates that right. In other 17 words, existing precedent must have placed th e statutory or constitutional question beyond 18 debate.” (citations, modifications, and internal quotation marks omitted)). Finally, we must 19 decide whether “it was objectively reasonable [for the defendants] to believe that their acts did 20 not violate these clearly established rights.” Young , 160 F.3d at 903 (internal quotation marks 21 omitted). 229 On appeal, Defendants-Appellants argue that the District Court er red in denying their 1 motion to dismiss the complaint because (1) Blac k is entitled to qualified immunity as to 2 Looney’s procedural due process claim, and (2) a ll three individual defendants are entitled to 3 qualified immunity as to Looney’ s First Amendment claim. We address these arguments in 4

turn. 5

I. Procedural Due Process Claim 6 In determining whether Looney’s complain t adequately alleges that there was a 7 constitutional procedural due pr ocess violation, we inquire first as to whether he adequately 8 alleged a property right protected under the Constitution. See Bd. of Regents of State Colls. v. 9

Roth , 408 U.S. 564, 576-77 (1972). Such property inte rests cannot be found on the face of the 10 Constitution, but rather “are created[,] and their dimensions are defined by[,] existing rules or 11 understandings that stem from an independent s ource such as state law- rules or understandings 12

that secure certain benefits.” Id . at 577. A “unilateral expect ation” is not sufficient to 13 establish a constitutionally protected property right. Id

. Rather, a plaintiff must have “a 14 legitimate claim of entitlement to” the alleged property interest. Id. 15 Where a valid property right is established, we consider whether a plaintiff was deprived 16 of that right without due process. Narumanchi v. Bd. of Trs. of Conn. State Univ. , 850 F.2d 70, 17 72 (2d Cir. 1988). In making this determinati on, we inquire into what process was due, and 18 whether the government provided such minimum process. See Mathews v. Eldridge , 424 U.S. 19 319, 332-35 (1976) (elaborating how to determine what process is due when a plaintiff has been 20 deprived of a valid property interest). 21

2210 To determine whether Black is entitled to qua lified immunity as to Looney’s procedural 1 due process claim, we must determine also whet her the constitutionally pr otected property right 2 was “clearly established.” 2 Reichle , 132 S. Ct. at 2093. This determination is a particularized 3 inquiry based on the situation faci ng an individual defendant at th e time of her alleged actions. 4 A defendant’s alleged conduct must have violated plaintiff’s procedural due process rights in a 5 manner that “every reasonable official would ha ve understood . . . violate[d] that right.” Id. at 6 2093 (citations, modifications, and internal quotation marks omitted). 7 The District Court’s holding th at Black was not entitled to qualified immunity as to 8 Looney’s procedural due process claim at this stage in the litigation was grounded in the 9 determination that Looney had a constitutiona lly protected property right in full-time 10 employment. In so deciding, the court relied on three primary source s identified in Looney’s 11 complaint. These were: (1) Connecticut Gene ral Statutes § 29-260(a)-(c ), which establishes 12 both that the Building Official is appointed for a four-year term, and the procedure for dismissing 13 a Building Official who has fa iled to perform his duties, Looney , 2011 WL 3290202, at *7; (2) 14 Marlborough’s Employee Handbook, Section 1.1.C, wh ich identifies “full[-]time employees” as 15 those working thirty hour weeks or more, and in dicates that those employees are entitled to 16 pension and healthcare benefits, id. ; and (3) Looney’s four reappoi ntments as Building Official 17 over the course of fifteen years, each time begi nning his term with pens ion and benefits as a 18 full-time employee, id. at *8. 19 The District Court, however, did not rely on the CBA in making its determination that 20 Looney had a property interest in full-time employment. Indeed, Looney argued in his 21

2 A court may exercise its discretion in deciding to firs t address whether (1) a plain tiff has adequately alleged a constitutional violation, or (2) such a constitutional right was clearly established. See Pearson , 555 U.S. at 242.11 sur-reply that his property in terest was “protected by Connect icut Statute, not the CBA,” a 1 statement that the District Court credited. (JA-186, 219.) 2

The District Court based its holding on Ezekwo v. New York City Health and Hosps. 3 Corp. , 940 F.2d 775 (2d Cir. 1991). There, plaintiff Ezekwo was a doctor who had been 4 accepted into a residency program at a hospital run by the defendant. She was notified at the 5 outset of her residency that every resident woul d “serve as ‘Chief Resi dent’ for four months 6 during his or her third year.” Id. at 777. Shortly before her thir d year began, despite receiving 7 negative performance reviews, she was again told that she would be serving as Chief Resident 8 later that year. After filing certain allegations of race and gender discrimination against her 9 supervisor, Ezekwo was notified that she would not be able to serve as Chief Resident. Id. at 10 778. We there found that the plaintiff had more th an just a “unilateral expectation of becoming 11 Chief Resident” because she had been “consistently . . . informed that she would rotate through 12 the position of Chief Resident and receive a salary differential as a result of that designation.” 13

Id. at 782-83. Indeed, the practice of rotating reside nts through the Chief Resident position 14 “was expressly highlighted in HHC’s informational documents.” Id. at 783. Accordingly, we 15 determined that the written documents, the “c ourse of conduct,” and “Ezekwo’s reasonable 16

reliance thereon” created a contr actual right under New York state la w that “rose to the level of a 17 significant property interest.” Id. 18

The District Court relied on Ezekwo to hold that both the Connecticut General Statutes 19 and Marlborough’s Employee Handbook, in conj unction with Looney’s four consecutive 20 reappointments to the Building Offi cial position, gave rise to a su fficiently “consistent course of 21 conduct” to entitle Looney not onl y to a property interest in hi s employment, but to a property 2212 interest in full-time employment in particular. Looney , 2011 WL 3290202, at *9. The court 1 emphasized that while Looney’s interest was “p erhaps . . . of lesser value than Ezekwo’s 2 once-in-a-lifetime opportunity to become a chief resident,” full-time employment was still “very 3 important to him.” Id. at *8. 4 Two other cases, Ciambrello v. County of Nassau , 292 F.3d 307 (2d Cir. 2002) and 5 Harhay v. Town of Ellington Board of Education , 323 F.3d 206 (2d Cir. 2003), were 6 distinguished by the District Court, which d eemed them to be not “directly on point.” Looney , 7 2011 WL 3290202, at *7-*8. We, however, find them to be important precedents. 8

Ciambrello concerned a civil service employee w ho was demoted back to his original 9 position from a recent promotion because Nassau County, his employer, determined he had been 10 promoted in violation of his union’ s collective bargaining agreement. Ciambrello , 292 F.3d at 11 312. We held that the applicable collective ba rgaining agreement, which expressly prohibited 12 demotion or disciplinary proceedings absent “incompetence and/or misconduct,” gave the 13 plaintiff a “property interest in his promotion,” as he was demoted in direct violation of the 14 collective bargaining agreement’s terms. Id. at 316. 15 Harhay similarly involved a propert y right that we held was established under the terms 16 of the applicable CBA. See Harhay , 323 F.3d at 212. Based on th e text of the collective 17 bargaining agreement at issue in that case, which provided the plaintiff a “c ontractual right . . . to 18 be reappointed to any vacant position for which she was qualified,” we determined that it was 19 “clear” that the plaintiff, a tenur ed school teacher, had a constitu tionally protected property right 20 in being reappointed. Id. 21

2213 Ezekwo , Ciambrello , and Harhay therefore all involved a plaintiff who had been 1 promised something explicitly — either verbally, or in the terms of the applicable collective 2 bargaining agreement — about specific conditions during the future term of their employment. 3 Ezekwo was told both in writing and in person that she could expect to be chief resident during 4 her third year of residency. Ezekwo , 940 F.2d at 782. Ciambrello was working pursuant to a 5 collective bargaining agreement th at stated he would not be demoted without engaging in 6 incompetence or misconduct. Ciambrello , 292 F.3d at 319. Harhay was contractually 7 promised that she would be reappo inted to an available position. Harhay , 323 F.3d at 212. 8 In this case, however, Looney does not allege that any writing or verbal communication 9 he was a party to indicated that his position as Building Official necessarily was to continue full 10 time, or even that he was guaranteed reappointment to the position. He alleges, instead, simply 11 that it always had been so. 12 In doing so, he relies on a conglomeration of sources that he argues create a sufficient 13 “course of conduct,” including (1) the relevant Connecticut Gene ral Statutes sections; (2) a 14

discussion he had in 1994 with then-First Sele ctman Dean regarding the terms of his initial 15 appointment as Building Official; (3) the 1994 jo b advertisement for the position of Building 16 Official, which indicated that it came with a “pension/benefits package”; (4) the Marlborough 17 Employee Handbook, which defines a “full[-]time em ployee” as one who works thirty hours or 18 more per week, and indicates that such employees are entitled to pension and benefits; and (5) 19 the fact that he was reappointed four separate times over a fifteen year span, and that during the 20 entirety of each appointment (until the last ) he worked as a full-time employee, receiving 21 pension and benefits. 2214 Nothing in any of these documents or intera ctions, however, indicat es that Marlborough 1 or any other party provided a written guarantee or an explic it indication that Looney should 2 expect to be employed full time from appointment to appointment , or throughout the duration of 3 a single appointment. While Looney alleges that the discussion he had and advertisement he 4 saw regarding the position in 1994, before he was fi rst appointed, indicated that he could expect 5 the job to be full time and to come with pension and benefits, those statements were made more 6 than fifteen years ago, and indica ted, at best, only the “terms a nd conditions” of Looney’s initial 7 appointment. 8 Furthermore, Connecticut General Statutes § 29-260 states only that the Building Official 9

is to be appointed for four years, and provides a mechanism for removing the Building Official 10 from his or her position if and when certain conditi ons are met. It is sile nt as to any guarantee 11 or procedural requirement for reducing a Building Official’s hours from full to part time. 12

All of the other documents identified in Looney’s complaint — the Employee Handbook, 13 the town’s Charter, and the CBA — merely define what was or was not considered “full time” 14 employment, and accordingly whether an employee could expect to receive, inter alia , pension 15

and health care benefits. None of these items affirmatively indicated th at Looney could expect 16 to continue being a full-time employee. In f act, the SAC alleges only that the Board notified 17 Looney of his final term of reappointment in April 2006 by stating that it had decided to 18 “continue [Plaintiff’s] appointment per C.G.S. Sec. 29-260(a), for an additional four years 19 effective August, 2006.” (JA-90, ¶ 17; JA-150.) But the Board said, and therefore 20 guaranteed, nothing about the terms of that appointment when it so notified him. 21

2215 The complaint’s allegations, without any writte n or spoken guarantee as to the terms of 1 his employment, leave Looney with nothing more th an a “unilatera l expectation” that he would 2 continue to be reappointed to his position, and that such reap pointment would be full time. 3 Such a unilateral expectation does not qualify as a constitutionally pr otected property right. See 4

Roth , 408 U.S at 577 (stating that an “abstract co ncern in being rehired” without more is 5 insufficient to create a property interest). Indeed, wh ile none of the documents or interactions 6 on which Looney relies can rightly be said to cr eate an affirmative expectation that he would 7 continue to be a full-time employee, the CBA, wh ich provides in Article 23 that the town may 8 “determine[] that layoffs or reductions in hour s are necessary” (JA-168), and provides also a 9 hierarchy by which such layoffs and reductions shoul d take place, affirmatively indicates that he 10 should have been prepared for the possi bility that his hours would be reduced. 11 We do not doubt that Looney’s interest in his continued full-time employment was 12 important, or that he has felt the negative effects of being deprived of his pension and health care 13 benefits. Unfortunately, however, Looney’s interest in these items does not suffice to guarantee 14 them constitutional protection as property right s to which he has any procedural entitlement. 3 15

We therefore conclude that L ooney has not adequately allege d a constitutionally protected 16 property interest in his full-time employment. Accordingly, the District Court erred in 17

18

3 The few other Second Circuit and Supr eme Court cases cited by the parties that discuss employees’ property rights in the specific terms of their employment do not assist Looney either. See Roth , 408 U.S. at 576-78 (holding assistant professor did not have property right in renewed employment where no mention of re-employment existed); O’Connor v. Pierson , 426 F.3d 187, 197 (2d Cir. 2005) (finding property right in forcing plaintiff to take sick leave without pay, as it was comparable to a suspension without pay); Finley v. Giacobbe , 79 F.3d 1285, 1294-95 (2d Cir. 1996) (stating that at-will probationary employees do not have protectable property rights in their employment); Narumanchi , 850 F.2d at 72 (holding plaintiff had a property right in his employment that was violated by two-week suspension without pay, but determining that plaintiff had not utilized already available process for airing his grievance).16 determining that Black was not entitled to quali fied immunity as to Looney’s procedural due 1 process claim. 2

II. First Amendment Claim 3 As with Looney’s Fourteenth Amendment cl aim, the individual defendants moved to 4 dismiss Looney’s First Amendment claim, and so the allegations must be read in the “light most 5 favorable to [Looney], and [we] cons true the complaint liberally.” Gregory v. Daly , 243 F.3d 6 687, 691 (2d Cir. 2001) (internal quotation marks omitted). We are bound to make our 7 determination based only on the contents of the complaint. See McKenna v. Wright , 386 F.3d 8 432, 436 (2d Cir. 2004) (stating that the court can only consider the “face of the complaint” in 9 deciding whether a defendant is entitled to qualified immunity on a motion to dismiss). 10 In determining whether a defendant is entitled to qualified immunity as to a plaintiff’s 11 First Amendment claims, we must first determine whether the plaintiff’s constitutional right to 12 free speech was impinged. Generally, government employees are entitled to First Amendment 13 protection when they speak as a private “citi zen addressing matters of public concern.” 14

Garcetti v. Ceballos , 547 U.S. 410, 417 (2006); see also Sousa v. Roque , 578 F.3d 164, 170 (2d 15 Cir. 2009). A “matter of public concern” is one th at relates to a “matter of political, social, or 16 other concern to the community.” Connick v. Myers , 461 U.S. 138, 146 (1983). 17 Public employees speaking “pur suant to their official dutie s,” however, are not afforded 18 protections under the First Amendment. Ross v. Breslin , 693 F.3d 300, 305 (2d Cir. 2012) 19 (internal quotation marks omitted). “This is th e case even when the subject of an employee’s 20 speech is a matter of public concern.” Id . It is also true, howe ver, that “a public employee 21 does not relinquish First Amendmen t rights to comment on matters of public interest [simply] by 2217 virtue of government employment.” Connick , 461 U.S. at 140. Rather, where the speech at 1 issue “owes its existence to a public em ployee’s professional responsibilities,” Garcetti , 547 U.S. 2 at 421-22, it can properly be said to have been made pursuant to th at party’s official duties. See 3

also Ross , 693 F.3d at 308 (holding the speech at i ssue was not protected because it “owed its 4 existence” to plaintiff’s “job duties”); Weintraub v. Bd. of Educ. , 593 F.3d 196, 203 (2d Cir. 5 2010) (noting that the speech alleged was “part- and-parcel” of the plaintiff’s employment 6 responsibilities (internal quotation marks omitted)). 7 To defeat an assertion of qualified immunit y, an employee’s constitutional right to free 8 speech must also be “clearly established” under the law. Reichle , 132 S. Ct. at 2093. Further, 9 even where a plaintiff has shown that the defe ndant’s actions violated a clearly established 10 constitutional right, the defendant may still be entitled to qualified immunity if she is alleged to 11 have acted in an objectively reasonable way. See Amore , 624 F.3d at 530. 12 On appeal, defendants argue that they di d not, as the District Court determined, 13 “concede” that Looney was not acting in his offici al capacity, and thus mu st have been speaking 14 as a private citizen. It is true that defendants failed to cite Garcetti or Weintraub , or to 15 otherwise make any arguments directly addressing this issue in their motion to dismiss or reply 16 papers below. 4 But it is also true that both the plaintiff and the Dist rict Court cited and relied 17

on Garcetti . Looney briefed the issue of whether or not he spoke pursuant to his official duties 18 in his opposition to defendants’ motion to dismiss. The District court also noted that “public 19 employees are not speaking as citizens for First Amendment purposes when they make 20

4 Defendants argue on appeal that their general objection below that Looney did not adequately allege he had engaged in protected speech with any particularity encompassed, inter alia , the failure to adequately allege that he spoke as a private citizen.18 statements ‘pursuant to their official duties.’” Looney , 2011 WL 3290202, at *10 (quoting 1

Garcetti , 547 U.S. at 421). 2 Thus, the argument is preserved for appeal. See Higgins v. N.Y. Stock Exch., Inc. , 942 3 F.2d 829, 832 (2d Cir. 1991) (considering an argu ment that was raised below because the 4 “argument, although different in emphasis from th e point pressed on appeal , at least introduced 5 the notion” in the district court). Furthermore, even if the argument had been waived below, we 6 may exercise our discretion and consider it now. See Allianz Ins. Co. v. Lerner , 416 F.3d 109, 7 114 (2d Cir. 2005) (stating that be cause rule that appellate court will not consider argument not 8 raised below “is prudential, not ju risdictional, we have discretion to consider waived arguments” 9 (internal quotation marks omitted)). 10 We therefore turn to the question of whether Looney’s complaint adequately alleges that 11 his speech was made as a private citizen, rather th an in the course of his official duties: 12 The inquiry into whether a public employee is speaking pursuant to her official duties is 13 not susceptible to a brightline rule. Courts must examine the nature of the plaintiff’s job 14 responsibilities, the na ture of the speech, and the rela tionship between the two. Other 15 contextual factors, such as whether the co mplaint was also conveyed to the public, may 16 properly influence a court’s decision. 17 18 Ross , 693 F.3d at 306 (citation and internal quotati on marks omitted). The proper inquiry here 19 is a “practical one.” Garcetti , 547 U.S. at 424. 20 Looney’s allegations regarding the content a nd scope of what he said to the town 21 resident, as well as the capacity in which he sa id it, are vague. The vast majority, if not the 22 totality, of the allegations regarding Looney’s alle gedly protected speech made to a town resident 23 appear in paragraphs 23 through 25 of hi s complaint. They are as follows: 24 23. On or about October 8, 2009, Plaintiff file d a grievance claiming harassment relative 25 to his freedom of speech rights based on th e attempt by Plaintiff’s supervisor, Peter 2619 Hughes, Planning and Development Director, to limit the communica tion of information 1 to a Town resident regarding wood burning boiler/stove and smoke discharge as public 2 health concerns. 3 4 24. On October 30, 2009, Peter Hughes responded, “Mr. Looney has been requested to 5 restrict his actions in the offi ce to that of his duties and not to make determinations or 6 engage in discussions of substantive matters outside his job duties concerning other Town 7 agenc[ies] or jurisdiction[s]. 8 9 25. On November 5, 2009, in a memorandum to First Selectman Black, Plaintiff 10 continued to protest limits placed on his abil ity to communicate information to the public 11 relative to the outdoor burning boilers issue whereby Pl aintiff was voicing his opinion 12 regarding an outside agency enforcing a cease and desist order against Town residents. 13 14 (JA-91-92.) 15 Looney alleges that he “communicat[ed] . . . information to a Town resident regarding 16 wood burning boiler/stove and smoke discharge as public health concerns.” (JA-92, ¶ 23.) 17 Similarly, he alleges that he “communicate[d] in formation to the public relative to the outdoor 18 wood burning boilers issue” by “voicing his opini on regarding an outside agency enforcing a 19 cease and desist order against Town residents.” (JA-92, ¶ 25.) 20 As to the scope of his duties as Building Offi cial, Looney alleges generally that “[a]t all 21 times relevant” to the complaint, he was “employ ed as the Building Official of the Town of 22 Marlborough,” (JA-87, ¶ 1) and as such was responsible for the “administration and enforcement 23 of the State Building Code at th e municipal level, including the organization and conduct of the 24 building advisory, inspection and enforcement program” (JA-88, ¶ 7). He further alleges that 25 throughout his employment he kept “uppermost in mind his obligation to enforce the State 26 Building Code to ensure the safety of the townspeople.” (JA-91, ¶ 21.) 27 Beyond this, the complaint does not allege sp ecifics as to what Looney said, or the 28 context in which he said it. The job falls to us to so infer, reading all available allegations in the 2920 “light most favorable” to Looney. Daly , 243 F.3d at 691 (internal quotation marks omitted). 1 In the absence of anything more specific, Looney’s vague allegations force us to 2 conclude that, as the town employee who oversaw the entire “organizat ion and conduct of the 3 building advisory, inspection and enforcement programs,” particularly in light of his 4 self-described “obligation to enforce the State Bu ilding Code,” the alleged speech set forth in the 5 complaint was closely related to his work as Building Official. (JA-88, ¶ 7.) This 6 understanding is furthered by Looney’s dual allegations that (1) it was a part of his job to “ensure 7 the safety of the townspeople” by enforcing th e relevant building code s, and (2) the smoke 8 discharge that was causing the i ssue discussed regarding the w ood burning stoves or boilers was 9 a “public health concern[].” (JA-91-92, ¶¶ 21, 23.) The only sensible way to interpret 10 Looney’s allegations is that he spoke on these issues because he was in an official position that 11 required, or at least allowed, him to do so. It fo llows that these statements owed their existence 12 to his position as the Building Official. As a consequence, Looney has not adequately alleged 13 that he spoke as a private citizen. 14 It is true that Looney allege s that his supervisor, in admonishing him for this alleged 15 speech, requested that he refr ain from discussing matters “ outside [Looney’s] job duties.” 16 (JA-92, ¶ 24 (emphasis added).) It is also alleged that his speech regarded an “ outside agency 17 enforcing a cease and desist order against Town residents.” (JA-92, ¶ 25 (emphasis added).) 18 But “[f]ormal job descriptions of ten bear little resemblance to the duties an employee actually is 19 expected to perform, and the list ing of a given task in an empl oyee’s written job description is 20 neither necessary nor sufficient to demonstrate that conduc ting the task is with in the scope of the 21 employee’s professional duties for First Amendment purposes.” Garcetti , 547 U.S. at 424-25. 2221 Similarly, whether “speech was unprotected does not rest on the fact that [the] speech was made 1 in the workplace as opposed to elsewhere.” Ross , 693 F.3d at 307. 2 The face of Looney’s complaint alleges nothing more than a vague set of circumstances 3 regarding speech which necessarily “owed its exis tence” to Looney’s role as Building Official. 4

Id. at 308. Because the speech at issue is alleged to have been made in the course of Looney’s 5 official duties, he has not adequately alleged th at such speech is entitled to First Amendment 6 protection. 5 7

The District Court therefore erred in holding that Black, Cl ark, and LaBella were not 8 entitled to qualified immunity as to Looney’s First Amendment claim. 9 CONCLUSION 10 For the aforementioned reasons, the order of the District Court de nying Black, Riva, and 11 LaBella qualified immunity is REVERSED , and the case is REMANDED with the direction to 12 enter judgment for the Defendants-Appellants. 13

5 As Looney has not adequately alleged that the underlying speech is entitled to First Amendment protection, to the extent his First Amendment claims may properly be categorized as claims of retaliation for filing a petition against the Defendants-Appellants, rather than freedom of speech claims, they necessarily fail as well. See Garcetti , 547 U.S. at 424.1 DRONEY, Circuit Judge , dissenting: 1 I respectfully dissent from the majority’s resolution of both the due process and First 2 Amendment claims. I cannot conclude that the allegations in Looney’s complaint call for 3 qualified immunity and warrant dismissal at this juncture. As to Looney’s procedural due 4 process claim, the allegations of the representations and conduct by defendant First Selectman 5 Black and the other Town officials, and the importance of the salary and benefits to Looney, are 6 sufficient to show that he had a property right to full-time employment protected by procedural 7 due process during his four-year statutory term as a Building Official. As to Looney’s First 8 Amendment retaliation claim, the allegations in the complaint sufficiently demonstrate that 9 Looney’s speech was made as a private citizen and on a matter of public concern. Although 10 discovery may uncover facts to the contrary, it would be premature to conclude otherwise on a 11 motion to dismiss. Accordingly, I would affirm th e district court’s denial of qualified immunity. 12

I. Procedural Due Process Claim 13 Qualified immunity may only be granted if an official has met his burden in 14 demonstrating that no rational jury could conclude “(1) that the official violated a statutory or 15 constitutional right, and (2) that the right was clearly established at the time of the challenged 16

conduct.” Ashcroft v. al-Kidd , 131 S.Ct. 2074, 2080 (2011) (internal quotation marks omitted). 17 “A Government official’s conduct violates clearly established law when, at the time of the 18 challenged conduct, the contours of a right are su fficiently clear that every reasonable official 19 would have understood that what he is doing violates that right.” Id. at 2083 (alterations and 20 internal quotation marks omitted). “The question is not what a lawyer would learn or intuit from 21 researching case law, but what a reasonable person in [the] defendant’s position should know 222 about the constitutionality of the conduct. . . . [W]e use an objective standard for judging the 1

actions of state and federal officials.” Coollick v. Hughes , 699 F.3d 211, 220 (2d Cir. 2012) 2 (internal citations and quotation marks omitted). Under this standard, Looney’s factual 3 allegations, if accepted as true, would have led the defendants to conclude that reducing 4 Looney’s compensation and eliminating his benefits without a hearing violated his right to due 5

process. 6 Looney has sufficiently alleged in his complaint that he had a protected property interest 7 in his status as a full-time employee during the period of his appointment as Building Official 8 under this Court’s prior holdings in Ezekwo v. NYC Health & Hospitals Corp. , 940 F.2d 775 (2d 9 Cir. 1991), Ciambriello v. County of Nassau , 292 F.3d 307 (2d Cir. 2002), and Harhay v. Town 10 of Ellington Board of Education , 323 F.3d 206 (2d Cir. 2003). Looney alleged that in 1994, 11 when he was appointed to his first statutory term as the Marlborough Building Official, the job 12 advertisement set forth a salary and “pension/benefits package” that were only available to full13 time employees of the Town. He also alleged that the then-First Selectman specifically told 14 Looney at the time he accepted the position that the Building Official role was a full-time 15 position with the benefits of other full-time employees, such as pension, healthcare, sick leave, 16 and vacation time. In addition, Looney alleged that the Town’s personnel rules and regulations 17 designated him as a “full-time employee entitled to all benefits provided to full-time employees.” 18 Looney alleged that he was reappointed four more times by the Board of Selectmen “as a 19 full time Building Official,” and he enjoyed full-time salary and benefits during his entire sixteen 20 years as the Building Official without any indica tion that he could be reduced from his full-time 21 status. During this period, he received a salary and the same benefits as all other full-time 221 The collective bargaining agreement itself explicitly listed the Building Official as a salaried employee while other listed positions, such as “Administrative Specialist” and “Tax Clerk,” were listed as hourly positions. In addition, in their reply brief before the district court, the defendants conceded that Looney could have pursued his grievance regarding the reduction in hours, compensation, and benefits through the procedures established by the collective bargaining agreement. While Looney has not identified the collective bargaining agreement as a source for his property interest, the collective bargaining agreement does further underscore the Town’s course of conduct upon which Looney reasonably relied to believe that he had a protected interest in his status as a full-time employee. 3 Marlborough employees. The complaint also alleged that in 2007, a collective bargaining 1 agreement entered into by the Town recognized the Building Official position as full-time. 1 It 2 was only in 2010 after Looney spoke out against the actions of Town officials that he was 3 reduced to part-time status and his benefits were terminated. Our prior decisions require due 4 process protection for Looney so that he was at least entitled to a hearing before this reduction in 5 his pay and benefits. 6

In Ezekwo , we considered whether the plaintiff had a property interest in serving as chief 7 ophthalmology resident at the defendant Harlem Hospital Center, which was operated by New 8 York City. The hospital had historically awarded the position to all ophthalmology residents in 9 the last year of their three-year residencies. Ezekwo , 940 F.2d at 777-78. However, after the 10 plaintiff began writing letters to the hospital complaining about various working conditions, the 11 hospital decided to change the policy for selecting chief ophthalmology residents to what it 12 claimed was a “merit-based” program and denied the plaintiff the chief resident status. Id. at 13 778-79. In concluding that the plaintiff enjoye d a property interest in the position of chief 14 resident, we focused on two factors. First, we observed a “course of conduct” in which the 15 hospital had consistently offered explicit reassurances to the plaintiff, including verbal 16 statements from supervisors and written informational documents, that she would rotate into the 174 chief resident position. See id. at 783. Second, we highlighted “the importance to the holder of 1 the right.” Id. (quoting Brown v. Brienen , 722 F.2d 360, 364 (7th Cir. 1983)). We found that the 2 plaintiff’s interest in serving as chief reside nt was sufficiently important because her interest 3 “was more than merely financial” and because the position, “due in large part to the very nature 4 of medical training itself, was of significant professional value.” Id. Accordingly, we found that 5 the plaintiff’s “expectation of performing the du ties of Chief Resident was reasonable and well 6 founded and rose to the level of a property interest entitled to the protections afforded by the Due 7

Process Clause.” Id. 8

In Ciambriello , we concluded that a civil service employee enjoyed a protected property 9 interest in his position as a maintenance mechanic and thus was entitled to a hearing when his 10 employer sought to demote him back to his former position as equipment operator. 292 F.3d at 11

318. As in Ezekwo , we focused on the course of conduct toward the plaintiff and concluded that 12 he had a reasonable expectation that he would retain his position – in that case, based on the 13 terms of a collective bargaining agreement. Also, as in Ezekwo , we emphasized that the 14 plaintiff’s interest in his position, while not a “once-in-a-lifetime opportunity[,] is still 15 significant.” 292 F.3d at 318. “After working for th e County for nearly five years, [the plaintiff] 16 was promoted to a position that entailed higher pay and greater benefits. [The plaintiff] served 17 in the higher position for well over two years, only to be returned to his original position and 18 salary.” Id. We therefore had “no trouble concluding that this right was a property right of 19 sufficient importance to [the plaintiff] to warrant constitutional protection.” Id. (emphasis 20 added). 21

225 In Harhay , we concluded that a previously terminated public school teacher possessed a 1 property interest in her position on a “reappointment list” for purposes of determining whether 2 she would be rehired when a vacancy occurred. 323 F.3d at 209, 212. Although we also 3 concluded that the plaintiff had been afforded adequate process through the grievance procedure 4 in her collective bargaining agreement, in determining whether she had a due process right in the 5 possibility of reappointment we emphasized the im portance to the plaintiff of the reappointment 6 protection. See id. at 212-13. As in Ezekwo and Ciambriello , we underscored that the plaintiff’s 7 position on the reappointment list “can – and should – be characterized as an ‘important’ interest 8 as opposed to a ‘trivial and insubstantial’ interest – as it directly affects her right to be employed 9

at all.” Id. (quoting Ezekwo , 940 F.2d at 783). 10 These decisions emphasize the importance of a course of conduct on which a plaintiff 11 might reasonably rely to establish a property right in the interest in question. However, they do 12 not require, as the majority concludes, that this course of conduct be established through a 13 “written or spoken guarantee as to the terms of [the plaintiff’s] employment.” As we held in 14 Ezekwo , “[a]dditional contractual provisions may be ‘implied’ into a contract as a result of a 15 course of dealing between the parties. The parties through their conduct and practice can create 16 additional rights and duties.” 940 F.2d at 782 (citing Perry v. Sindermann , 408 U.S. 593, 602 17 (1972)). The allegations here of the initial representations to Looney for his first appointment, 18 the advertisement for the position, the Town personnel rules and regulations, and the collective 19 bargaining agreement, as well as Looney’s reappointment each time over the course of sixteen 20 years to the position of a “full-time Building O fficial” without any diminutions of his hours or 21 compensation, are sufficient to allege a course of conduct that implicates a property interest in 222 The majority points to Article 23 of the collective bargaining agreement, which provides the hierarchy under which the Town would implement “layoffs or reductions in hours.” In reviewing a motion to dismiss, our review is “limited to the facts as presented within the four corners of the complaint, to documents attached to the complaint, or to documents incorporated within the complaint by reference.” Taylor v. Vt. Dep’t of Educ. , 313 F.3d 768, 776 (2d Cir. 2002). “Limited quotation does not constitute incorporation by reference.” Cosmas v. Hassett , 886 F.2d 8, 13 (2d Cir. 1989) (alteration and internal quotation marks omitted). Looney’s brief mention of the collective bargaining agreement in his complaint does not constitute incorporation by reference under Cosmas , and so it would be inappropriate to rely on the collective bargaining agreement as a basis for resolving a motion to dismiss. However, even if the collective bargaining agreement is incorporated by reference into the complaint, Article 23 provides that layoffs within a job title would take effect in inverse order of seniority, starting with “temporary and seasonal employees,” “part-time probationary employees,” “full-time probationary employees,” and concluding “[b]y seniority of the remaining employees in the job title.” Looney was clearly not a temporary or seasonal employee, and because he had served as a Town employee for more than six months, he no longer qualified as a probationary employee under Article 13 of the collective bargaining agreement. Based on a plain reading of Article 23, Looney therefore would seem to have been on notice about a possible reduction in hours under the collective bargaining agreement only if there had previously been layoffs of temporary, seasonal, and probationary employees. However, the extent to which layoffs were occurring around the time Looney’s hours were reduced is a factual question that we cannot resolve at this juncture.

3 Looney alleged that the representations regarding the full-time nature of the Building Official position were made to him the first time he was appointed Building Official. It surely is not required that those assurances needed to have been repeated to Looney explicitly each time he was reappointed to his new statutory term as Building Official, especially when he was at all times treated as a full-time employee. Nevertheless, Looney alleges that each time he was reappointed, it was “as a full-time Building Official with pension and benefits,” and he should be given the opportunity to produce evidence to that effect. 6 full-time employment. 2 Even if the majority is correct that the bar for such a property interest is 1 set so high as to require a “written guarantee or explicit indication,” I also believe that the 2 allegations in the complaint reach it. 3 3 As to the “importance to the holder of the right,” Ezekwo , 940 F.2d at 783 (internal 4 quotation marks omitted), Looney lost all his health and retirement benefits as well as a 5 significant amount of salary due to the reduction in his hours. If the suspension of a university 6 professor for two weeks without pay implicates a protected property interest, see Narumanchi v. 77 Bd. of Trs. , 850 F.2d 70, 72 (2d Cir. 1988), then surely such a reduction in a Building Official’s 1 compensation and the elimination of his benefits require due process protections as well. While 2 there is “no allegation that his [position] was a once-in-a-lifetime opportunity[,] the interest is 3 still significant.” Ciambriello , 292 F.3d at 318. I therefore conclude that Looney has adequately 4 alleged a clearly established, constitutionally protected interest in his full-time employment, and 5 that Black is therefore not entitled to qualified immunity as to Looney’s due process claim at this 6 stage of the litigation. 7

II. First Amendment Claim 8 The complaint also contains sufficient allegations that Looney’s speech merited the 9 protections of the First Amendment. A public employee is not protected by the First 10 Amendment only if the speech at issue “owed its existence to [the plaintiff’s] job duties and was 11

made in furtherance of those duties.” Ross v. Breslin , 693 F.3d 300, 308 (2d Cir. 2012). 12 Evidence about both the specific content of Looney’s speech to the Marlborough residents and 13 Looney’s job responsibilities must be presented before it would be appropriate to dismiss his 14 claim on the ground of qualified immunity. 15 “In order to establish a First Amendment retaliation claim, plaintiffs must prove that: (1) 16 they engaged in constitutionally protected speech because they spoke as citizens on a matter of 17 public concern; (2) they suffered an adverse employment action; and (3) the speech was a 18 ‘motivating factor’ in the adverse employment decision.” Skehan v. Vill. of Mamaroneck , 465 19 F.3d 96, 106 (2d Cir. 2006), overruled on other grounds , Appel v. Spiridon , 531 F.3d 138, 140 20 (2d Cir. 2008) (per curiam). To demonstrate th at the plaintiff was speaking as a “citizen,” the 21 plaintiff must show that he was not speak ing “pursuant to [his] official duties.” Ross , 693 F.3d 224 Looney names Black, Clark, and LaBella in his complaint on the First Amendment claim. However, his complaint alleges that First Selectman Black reduced Looney’s hours without having obtained the approval of the Boar d of Selectmen, and that Clark and LaBella’s involvement was in recommending against r eappointing Looney as Building Official in retaliation for Looney’s lawsuit against the Town, and then voting against reappointing him. Nonetheless, I believe that Looney has sufficiently alleged unlawful retaliation on the part of Clark and LaBella as well as Black. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 283-84 (1977) (holding that a plaintiff ma y “establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms”); see also Bernheim v. Litt , 79 F.3d 318, 327 (2d Cir. 1996) (Jacobs, J., concurring) (“It is beyond question that a state agency may not discharge, refuse to rehire , fail to promote, or demote a public employee in retaliation for speaking on a matter of public concern.” (citing Rutan v. Republican Party , 497 U.S. 62, 75 (1990), and Pickering v. Bd. of Educ. , 391 U.S. 563, 568 (1968) (emphasis added)). 8 at 305 (quoting Garcetti v. Ceballos , 547 U.S. 410, 421 (2006)). If the plaintiff satisfies the 1 three prongs of the Skehan test, the 2 defendants may nevertheless escape liability if they can demonstrate that either 3 (1) 4 the defendant would have taken the same adverse action against the plaintiff 5 regardless of the plaintiff’s speech; or (2) the plaintiff’s expression was likely to 6 disrupt the government’s activities and that the harm caused by the disruption 7 outweighs the value of the plaintiff’s expression. 8 9

Skehan , 465 F.3d at 106. It is clear that Looney suffered an “adverse employment 10 action” in this case, and Looney has adequately alleged in his complaint that his speech 11 motivated the defendants’ decision to reduce his compensation and benefits. 4 As a result, the 12 critical questions are whether Looney was speaking on a matter of public concern and whether 13 he was speaking as a private citizen or “pursuant to” his official duties. 14 As to the first question regarding the content of the statements, Looney’s factual 15 allegations sufficiently indicate that he was speaking on a matter of public concern. The 16 Supreme Court has defined “matters of public concern” to include “any matter of political, 17 social, or other concern to the community.” Connick v. Myers , 461 U.S. 138, 146 (1983). 185 Although the complaint does not say explicitly whether the outside agency enforcing the cease and desist order relating to smoke discharges from wood-burning stoves was a state or local agency, the complaint is clear that the order was enforced by an agency outside the one in which Looney was employed as Building Official and related to a subject matter that was not part of Looney’s responsibilities. 9 “Whether an employee’s speech addresses a matter of public concern is a question of law for the 1 court to decide, taking into account the content, form, and context of a given statement as 2 revealed by the whole record.” Lewis v. Cowen , 165 F.3d 154, 163 (2d Cir. 1999). 3 The category of issues of “public concern” discussed in Connick has been interpreted 4 broadly to include commenting on policy decisions affecting the public fisc, see Lewis , 165 F.3d 5 at 163-64, and raising concerns “about the lawfulness of public officials’ actions,” Hoyt v. 6

Andreucci , 433 F.3d 320, 330 (2d Cir. 2006). Here, according to his second amended complaint, 7 Looney was communicating with a “Town resident regarding wood burning boiler/stove and 8 smoke discharge as public health concerns” and with members of the public about an “outside 9 agency enforcing a cease and desist order against Town residents.” 5 These statements are 10 commentary on public health issues and regulatory enforcement actions, and thus address a 11 matter of public concern. 12 The allegations of the complaint are also sufficient to show that Looney was speaking as 13 a private citizen, rather than “pursuant to [his] official duties.” Ross , 693 F.3d at 305 (internal 14 quotation marks omitted). The Supreme Court defines speech made “pursuant to” a public 15 employee’s job duties as “speech that owes its existence to a public employee’s professional 16 responsibilities.” Garcetti , 547 U.S. at 421. The inquiry into whether speech is “pursuant to” 17 one’s official duties is a “practical one” under which 18

19 [f]ormal job descriptions often bear little resemblance to the duties an employee 20 actually is expected to perform, and the listing of a given task in an employee’s 2110 written job description is neither necessary nor sufficient to demonstrate that 1 conducting the task is within the scope of the employee’s professional duties for 2 First Amendment purposes. 3 4 Id. at 424-25. 5 To determine whether speech was made “pursuant to” one’s official job duties, it is 6 necessary to ascertain whether the speech at issue “owed its existence to [the plaintiff’s] job 7

duties and was made in furtherance of those duties .” Ross , 693 F.3d at 308 (emphasis added). 8

In Ross , we considered whether a school district payroll clerk whose role informally included 9 reporting suspicious payroll requests to her supervisor was entitled to First Amendment 10 protections for writing letters to school board members containing allegations of financial 11

malfeasance. Id. at 302-03. We concluded that the clerk was not entitled to First Amendment 12 protection because her letters, despite being sent outside the chain of command, were written “in 13 furtherance of” her informal reporting duties. Id. at 308. We have also held that a teacher’s 14 complaints to a school board about the inadequate discipline of a disorderly student were 15 “part-and-parcel” of his duties because they dealt with his ability “to maintain classroom 16 discipline, which is an indispensable prerequis ite to effective teaching and classroom learning.” 17 Weintraub v. Bd. of Educ. , 593 F.3d 196, 203 (2d Cir. 2010) (citation and internal quotation 18 marks omitted). Conversely, we concluded that First Amendment protections applied to a police 19 officer’s refusal to speak about a colleague’s misconduct in part because the speech “did not 20 implicate [the plaintiff’s] ability to do his own job properly.” Jackler v. Byrne , 658 F.3d 225, 21 240 (2d Cir. 2011). 22 It may be that Looney’s position as Building Official made it possible for him to deliver 23 his comments to the Marlborough residents, and so the comments may have “owed [their] 2411 existence to [Looney’s] job duties.” Ross , 693 F.3d at 308. However, Looney’s complaint 1 sufficiently alleges that his comments were not made “in furtherance of” his job duties – either 2 formal or informal. After making the comments to a Marlborough resident, Looney alleges that 3 he was admonished by his supervisor (the Dir ector of Planning and Development for the Town 4 of Marlborough) to “restrict his actions in the office to that of his duties and not to make 5 determinations or engage in discussions of substantive matters outside his job duties concerning 6 other Town agenc[ies] or jurisdiction[s].” Looney also alleges that he was told by that 7 supervisor to stop “voicing his opinion regarding an outside agency enforcing a cease and desist 8 order against Town residents.” It could be that a Building Official whose principal 9 responsibilities are the enforcement of the state building code would be involved as part of his 10 job with wood-burning stoves and the potential harms they pose to public health, or – less likely 11 – that his job involved other agencies’ cease and de sist orders, but such a conclusion is not clear 12 on the basis of the pleadings alone. Indeed, Looney’s allegations indicate that, at the very least, 13 the Town’s Planning and Development Director believed Looney’s comments fell outside his 14 official job duties. In the absence of evidence to the contrary, I do not believe that the 15 defendants are entitled to qualified immunity on Looney’s speech claim at this stage. 16 The defendants could be entitled to qualified immunity by demonstrating that Looney’s 17 statements were “likely to disrupt the government’s activities and that the harm caused by the 18 disruption outweighs the value of [Looney’s] expression.” Skehan , 465 F.3d at 106. For 19 instance, the defendants could demonstrate that Looney’s comments were encouraging 20 Marlborough residents not to comply with other local regulations. The defendants could also 21 demonstrate that Looney occupied “an executive or policymaking position” whose “expressive 2212 activities . . . will be more disruptive to the operation of the workplace than similar activity by a 1 low level employee.” Faghri v. Univ. of Conn. , 621 F.3d 92, 98 (2d Cir. 2010) (internal 2 quotation marks omitted). But I do not believe Fahgri reaches so far as to inhibit lower-level 3 officials, such as Looney, from being able to publicly challenge Town policies based merely on 4 the allegations presented here. As a result, I conclude that dismissing Looney’s First 5 Amendment claim at this stage is premature. 6

* * * 7 Looney’s complaint contains sufficient allegations to withstand dismissal on the basis of 8 qualified immunity. On a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil 9 Procedure, we must “construe the complaint liberally, accepting all factual allegations in the 10 complaint as true, and drawing all reasonable inference in the plaintiff’s favor.” McGarry v. 11

Pallito , 687 F.3d 505, 510 (2d Cir. 2012) (internal quotation marks omitted). Because Looney 12 has sufficiently alleged a constitutionally protected interest in his status as a full-time employee 13 and has adequately alleged that his speech was entitled to First Amendment protections, I 14 conclude that finding the defendants are entitled to qualified immunity would be premature at 15 this time. As a result, I would affirm the district court’s decision denying the motion to dismiss 16 and leave the determination of qualified immunity to another day. 17