*The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by designation. 11-2721-cv Massaro v. N.Y.C. Dep’t of Educ.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUMMARY ORDER IN A DOCUM ENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second 1 Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl 2 Street, in the City of New York, on the 31 stday of May, two thousand twelve. 3 4 Present: AMALYA L. KEARSE, 5 SUSAN L. CARNEY, 6 J. CLIFFORD WALLACE, * 7 Circuit Judges

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_____________________________________________________ ______ 9 10 YVONNE T. MASSARO, 11 12 Plaintiff-Appellant , 13 14 -v- No. 11-2721-cv 15 16 NEW YORK CITY DEPARTMENT OF EDUCATION, 17 18 Defendant-Appellee. 19 20 21 Appearing for Appellant: Stewart L. Karlin, The Law Offices of 22 Stewart Lee Karlin, P.C., New York, NY. 23 24 Appearing for Appellee: Julian L. Kalkstein, Diana Lawless, of 25 counsel , for Michael A. Cardozo, Corporation 26 Counsel of the City of New York, New York, 27 NY. 282 Appeal from the United States District Court for the Southern District of 1 New York (Swain,Judge ). ON CONSIDERATION WHEREOF , it is hereby 2 ORDERED , ADJUDGED , and DECREED that the judgment of the District Court 3 be and it hereby is AFFIRMED

. 4 Plaintiff-Appellant Yvonne T. Massaro appeals from the district court’s 2011 5 award of summary judgment in favor of Defendant-Appellee New York City 6 Department of Education (“DOE”), dismissing Massaro’s claim under 42 U.S.C. 7 § 1983 for alleged violations of her First and Fourteenth Amendment rights. 8 Massaro, a public school teacher, alleged that defendant retaliated against her for 9 engaging in protected speech—i.e. , complaining that she had contracted scabies 10 from the “unsanitary” conditions in her classroom—by, inter alia , changing her 11 schedule and cancelling one of her classes. We assume the parties’ familiarity with 12 the underlying facts, the procedural history, and the arguments raised on appeal, 13 which we reference only as necessary to explain our decision. 14 A district court’s summary judgment is subject to our de novo review. 15 Costello v. City of Burlington , 632 F.3d 41, 45 (2d Cir. 2011). We affirm if, after 16 construing the evidence in the light most favorable to the non-moving party and 17 drawing all reasonable inferences in its favor, “‘there is no genuine dispute as to 18 any material fact and the movant is entitled to judgment as a matter of law.’” Id. 19 (quoting Fed. R. Civ. P. 56(a)). 20 “To survive summary judgment on a First Amendment retaliation claim, a 21 public employee must bring forth evidence showing that [s]he has engaged in 22 protected First Amendment activity, [s]he suffered an adverse employment action, 233 and there was a causal connection between the protected activity and the adverse 1 employment action.” Anemone v. Metro. Transp. Auth. , 629 F.3d 97, 114 (2d Cir. 2 2011) (internal quotation marks omitted). To determine whether a plaintiff’s 3 speech is constitutionally protected, “a court must begin by asking ‘whether the 4 employee spoke as a citizen on a matter of public concern.’” Sousa v. Roque , 578 5 F.3d 164, 170 (2d Cir. 2009) (quoting Garcetti v. Ceballos , 547 U.S. 410, 418 (2006)). 6 “If the court determines that the plaintiff either did not speak as a citizen or did not 7 speak on a matter of public concern, ‘the employee has no First Amendment cause 8 of action based on . . . her employer’s reaction to the speech.’” Id. (quoting Garcetti , 9 547 U.S. at 418). Determining whether an employee spoke as an employee and not 10 as a citizen is “largely a question of law for the court.” Jackler v. Byrne , 658 F.3d 11 225, 237 (2d Cir. 2011). 12 Public employees speak as employees—and not as citizens—when they “make 13 statements pursuant to their official duties.” Garcetti , 547 U.S. at 421. “The 14 objective inquiry into whether a public employee spoke ‘pursuant to’ . . . her official 15 duties is ‘a practical one.’” Weintraub v. Bd. of Educ. of the City Sch. Dist. of the 16 City of N.Y. , 593 F.3d 196, 202 (2d Cir. 2010) (quoting Garcetti , 547 U.S. at 424). 17 We have held that speech may be deemed “pursuant to” a public employee’s official 18 duties if it is “part-and-parcel of [her] concerns about [her] ability to properly 19 execute [her] duties.” Id. at 203 (internal quotation marks omitted)

.The “lack of a 20 citizen analogue” to the form of the plaintiff’s speech also “bear[s] on . . . whether 21 the public employee is speaking as a citizen.” Id. at 204; see also id. (noting that, 22 unlike actions that are available equally to government employees and ordinary 234 citizens, “[t]he lodging of a union grievance is not a form or channel of discourse 1 available to non-employee citizens”). 2 Massaro works as an art teacher for the DOE at the Edward R. Murrow High 3 School. In December 2005, Massaro inform ed school administrators that she had 4 contracted scabies and that, in her opinion, the scabies was caused by the 5 unsanitary conditions in her classroom. In connection with her scabies infection, 6 Massaro submitted several documents to the DOE. These included a 7 Comprehensive Injury Report, in which she claimed that she had been bitten by 8 mites in her classroom; and an Accident Report, in which she described, among 9 other things, her “unclean working environment,” her expenses related to her 10 scabies infection, and the school’s alleged failure to clean her classroom or, 11 alternatively, to transfer her to a different classroom. On several occasions between 12 December 2005 and February 2006, Massaro also complained verbally to school 13 administrators about these same matters. 14 The district court determined that Massaro’s complaints regarding her health 15 issues and the allegedly unsanitary conditions in her classroom did not constitute 16 constitutionally protected speech. We agree. The district court’s conclusion that 17 Massaro spoke as an employee rather thana private citizen is supported by the 18 facts that she aired her complaints only to several school administrators rather 19 than to the public, and that most of those complaints were made in the context of 20 internal safety and medical absence-related forms (at least one of which was 21 marked “confidential”), “for which there is no relevant citizen analogue,” Weintraub , 22 593 F.3d at 203. We further conclude, as did the district court, that Massaro’s 235 complaints concerned her ability “to properly execute [her] duties” as a public school 1 teacher, id. (internal quotation marks omitted), because they were aimed at 2 resolving her health issues so that she could continue to teach, and ensuring that 3 she had a safe and clean environment in which to work and that her use of sick 4 days was appropriately credited. Accordingly, the undisputed evidence 5 demonstrates that Massaro’s statements to defendant were made pursuant to her 6 official duties. We have no difficulty inconcluding on this record that Massaro 7 spoke as an employee—not as a private citizen. 8 Massaro’s assertion that her job responsibilities did not expressly require her 9 to report health hazards in her classroom does not persuade us otherwise. See id. 10 (“[S]peech can be ‘pursuant to’ a public employee’s official job duties even though it 11 is not required by, or included in, the employee’s job description, or in response to a 12 request by the employer.”). Although one can conceive of a setting in which a public 13 school teacher’s remarks on a potential health hazard at school are delivered in 14 such a way as to constitute public comments on a matter of public concern that are 15 delivered as a citizen, not an employee, this is not that case. 16 Further, as to the remaining elements required to prove a First Amendment 17 retaliation claim, we discern from the record no basis from which a reasonable jury 18 could find conduct that rises to the level of an “adverse employment action,” Zelnik 19 v. Fashion Inst. of Tech. , 464 F.3d 217, 226-27 (2d Cir. 2006) (to qualify as an 20 “adverse employment action” the alleged act of retaliation must be “more than de 21 minimis”). Nor is there evidence demonstrating a nexus between Massaro’s speech 22 and the purportedly adverse employment actions. 236 We have considered Massaro’s remaining arguments and conclude that they 1 are without merit. The judgment of the district court is thereforeAFFIRMED

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3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7