Sousa v. Roque

• Decision Date: 21 August 2009
• Docket Number: Docket No. 07-1892-cv.
• Citation: 578 F.3d 164
• Parties: Bryan SOUSA, Plaintiff-Appellant, v. Arthur ROQUE Jr., Robert Kaliszewski, Joanne Driver, William Evans, and Jane Stahl, Defendants-Appellees.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Second Circuit

578 F.3d 164

Bryan SOUSA, Plaintiff-Appellant, v. Arthur ROQUE Jr., Robert Kaliszewski, Joanne Driver, William Evans, and Jane Stahl, Defendants-Appellees.^*

Docket No. 07-1892-cv.

United States Court of Appeals, Second Circuit.

Argued: November 5, 2008.

Decided: August 21, 2009.

John R. Williams, New Haven, CT, for Plaintiff-Appellant.

Clare E. Kindall, Assistant Attorney General, for Richard Blumenthal, Attorney General of the State of Connecticut, Office of the Attorney General, Hartford, CT, for Defendants-Appellees.

Before: CABRANES and HALL, Circuit Judges, and GLEESON, District Judge.^**

JOSÉ A. CABRANES, Circuit Judge:

Plaintiff Bryan Sousa ("plaintiff" or "Sousa"), a former employee of the Connecticut Department of Environmental Protection ("DEP"), appeals an April 23, 2007 judgment of the United States District Court for the District of Connecticut (Janet C. Hall, Judge). That judgment granted a motion by Arthur Roque, Commissioner of the DEP; Robert Kaliszewski, Sousa's supervisor at the DEP; Joanne Driver, a personnel officer at the DEP; William Evans, a Bureau Chief of the DEP Personnel/Bureau of Financial and Support Services; and Jane Stahl, Deputy Commissioner of the DEP (collectively "defendants" or "DEP officials"), for summary judgment on plaintiff's claims that they had retaliated against him in violation of the First Amendment for complaints he made regarding primarily workplace violence. Specifically, plaintiff argues that although the District Court correctly concluded that he was speaking "as a citizen" and not "as an employee" for the purposes of the First Amendment, the District Court erred in concluding that his speech was unprotected because it was not on a matter of public concern.

We acknowledge that our precedents on what constitutes "a matter of public concern," and particularly, the extent to which a court may take into account the speaker's motives when making that determination, are less than clear. We reaffirm our earlier holding in Reuland v. Hynes, that "the speaker's motive is not dispositive in determining whether speech is on a matter of public concern." 460 F.3d 409, 411 (2d Cir.2006). Because our holding is at odds with the District Court's conclusion that Sousa's speech did not address a matter of public concern solely because he was motivated by employment grievances, we vacate the District Court's order granting summary judgment to defendants on Sousa's First Amendment claim.

BACKGROUND

I. Factual Overview¹

Sousa began working as an engineer at the DEP in July 1987. By 1995, he had become a supervising sanitary engineer in the Water Bureau, a division within the DEP. In October 2002, Sousa had a verbal and physical altercation with Jonathan Goldman—a "lower-level [DEP] employee." Sousa v. Roque, 3:05-cv-00822 (JCH), 2007 WL 1100318, at *2 (D. Conn. Apr. 10, 2007). As a result of the incident, both Sousa and Goldman were suspended for three days without pay.

Following his altercation with Goldman, Sousa began making numerous complaints to DEP officials, focusing on the discipline he received as a result of the incident and, more generally, workplace violence within the DEP.² Around this time, Sousa also reported his concerns about a hostile work environment in the DEP. Sousa complained about incidents of group harassment against him called "mobbing," which is a process of abusive behaviors inflicted over time. Specifically, he reported that he had been harassed by various lower-level employees, and that two lower-level employees had also suffered harassment— which Sousa took to be evidence, in part, of "reverse discrimination" within the DEP. Sousa then wrote to Marcia Bonito, the DEP's Affirmative Action Administrator, again focusing on his claims of a hostile work environment, workplace violence, and "reverse discrimination." He made similar complaints to Richard Blumenthal, the Attorney General of the State of Connecticut. Finally, Sousa articulated several of these concerns in an April 23, 2003 memorandum to his union.

One of Sousa's complaints in particular troubled DEP officials. On July 23, 2003, Sousa sent an e-mail to two DEP employees, Karen Calieno and Lisa Piccarello, about providing a book on "mobbing" to members of the DEP's Workplace Violence Threat Assessment Team, id. at *2 n. 3. In the e-mail, Sousa wrote:

When you read the book you will recognize that mobbing can often result in the death of the victim, either due to illness, accident or suicide. Another reference suggested that, in light of such ramifications, workplace mobbing should be viewed as the last remaining legal means of committing homicide. I personally see it as a form of group vigilantism.

Id. at *2. Following this e-mail, the Human Resources Office of the DEP ("HR") sent Sousa a letter on August 12, 2003, requiring him to undergo a fitness-for-duty evaluation.

Although the events that followed are in dispute, both parties agree that Sousa was on leave for a substantial amount of time following HR's request that he undergo a fitness-for-duty evaluation. The District Court found that Sousa was put on paid leave on September 29, 2003, and then on unpaid leave on October 15, 2003, while Sousa's doctor was gathering information for his fitness test. Sousa was eventually found fit for duty in November 2003, and he was instructed that he should report back to work on December 1, 2003. Sousa informed Evans, a Bureau Chief of the DEP Personnel/Bureau of Financial and Support Services, that he did not want to return to work out of fear for his safety. Sousa remained out of the office for the month of December, using a combination of vacation time and sick leave.

Sousa returned to work in January 2004, and then requested that he be allowed to work from home or "telecommute." Sousa's supervisors denied the request. During the months that followed, Sousa continued to take various forms of leave.³ While Sousa was on paid sick leave in the fall of 2004, he was informed that he would have to return to work on October 18, 2004, or he would be classified as being on "unauthorized leave without pay." Id. at *5. Sousa did not go to work on that date, and after five days, a hearing pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-46, 105 S.Ct. 1487 84 L.Ed.2d 494 (1985) ("Loudermill hearing"),⁴ was set for November 17, 2004. There remained some concern about whether Sousa was still fit for duty; however, an independent medical examiner reported that Sousa would be fit for work as of December 20, 2004. Sousa did not return to work on that day either and a second Loudermill hearing was held on January 14, 2005. Following that hearing, Sousa's employment with the DEP was terminated for, inter alia, two instances of unauthorized absences.

II. Procedural History

On May 24, 2005, Sousa filed the instant action in the District Court, pursuant to 42 U.S.C. § 1983, alleging that defendants violated his First Amendment rights by retaliating against him for engaging in what he claimed was protected speech. Specifically, Sousa claimed that the defendants' actions—inter alia, (1) requiring him to undergo a fitness-for-duty evaluation, (2) placing him on paid leave in September 2003, (3) placing him on unpaid leave in October 2003, (4) denying him continued medical leave in October 2004, (5) denying his January 2004 request to telecommute, (6) subjecting him to a hostile work environment from 2003 to his termination in 2005, and (7) terminating his employment—were all acts of retaliation against him for exercising his First Amendment right to complain about, inter alia, workplace violence and a hostile work environment within the DEP. Sousa also claimed that two of defendants' actions—requiring him to undergo a fitness-for-duty evaluation and denying his request to telecommute—violated his right to equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution. Finally, Sousa's action included state law claims for negligent infliction of emotional distress and for intentional infliction of emotional distress.

In July 2005, defendants filed a motion to dismiss the state law claims. See Docket No. 3:05-cv-00822 (JCH), Entry 6 (D.Conn. July 7, 2005). The District Court granted this motion in a December 2005 order with respect to Sousa's claim for negligent infliction of emotional distress and denied it with respect to his claim for intentional infliction of emotional distress. See Docket No. 3:05-cv-00822 (JCH), Entry 25 (D.Conn. Dec. 19, 2005). Following discovery, in December 2006 defendants moved for summary judgment, see Docket No. 3:05-cv-00822 (JCH), Entry 65 (D.Conn. Dec. 20, 2006), and on April 10, 2007, the District Court entered a ruling granting defendants' motion on all of Sousa's federal claims, and declining to exercise supplemental jurisdiction over Sousa's remaining state law claim of intentional infliction of emotional distress. See Sousa, 2007 WL 1100318, at *8.

With respect to Sousa's First Amendment claim, the District Court stated that "[t]he first question the court must ask in deciding a First Amendment retaliation claim is whether the public employee spoke `as a citizen upon matters of public concern' or `as an employee upon matters of personal interest.'" Id. at *6 (quoting Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In considering whether Sousa was speaking as a "citizen" or as an "employee," the District Court noted that the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), had held that the "controlling factor" in determining whether someone is speaking as an employee was whether "the speaker's `expressions were made pursuant to his duties.'" Sousa, 2007 WL 1100318, at *6 (quoting Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). Without further explanation, the Court concluded that, "[h]ere, there is no evidence that Sousa's official...