663 F.3d 100 (2nd Cir. 2011), 10-1420-cv, Nagle v. Marron

Docket Nº:10-1420-cv.
Citation:663 F.3d 100
Opinion Judge:CALABRESI, Circuit Judge:
Party Name:Nancy L. NAGLE, Plaintiff-Appellant, v. Paula MARRON, Rosemarie Coletti, and Barbara Merling, Defendants, and Paul R. Fried, individually, Steven Castar, individually, and Mamaroneck Union Free School District, New York, Defendants-Appellees.
Attorney:Jane Bilus Gould, Gould & Berg, LLP, White Plains, NY, for Plaintiff-Appellant. Maurizio Savoiardo (Michael A. Miranda on the brief), Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY, for Defendants-Appellees.
Judge Panel:Before: CALABRESI, RAGGI, Circuit Judges, and GLEESON, District Judge.[2]
Case Date:December 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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663 F.3d 100 (2nd Cir. 2011)

Nancy L. NAGLE, Plaintiff-Appellant,


Paula MARRON, Rosemarie Coletti, and Barbara Merling, Defendants,


Paul R. Fried, individually, Steven Castar, individually, and Mamaroneck Union Free School District, New York, Defendants-Appellees. 1

No. 10-1420-cv.

United States Court of Appeals, Second Circuit.

December 12, 2011

Argued: March 24, 2011.

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[Copyrighted Material Omitted]

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Jane Bilus Gould, Gould & Berg, LLP, White Plains, NY, for Plaintiff-Appellant.

Maurizio Savoiardo (Michael A. Miranda on the brief), Miranda Sambursky Slone Sklarin Verveniotis LLP, Mineola, NY, for Defendants-Appellees.

Before: CALABRESI, RAGGI, Circuit Judges, and GLEESON, District Judge.2

CALABRESI, Circuit Judge:

Plaintiff-Appellant Nancy L. Nagle brought suit under 42 U.S.C. § 1983, alleging that Defendants-Appellees Paul R. Fried, Steven Castar, and the Mamaroneck Union Free School District of New York had retaliated against her for exercising her rights under the First Amendment. The court below (Thomas S. Zilly, Judge) granted summary judgment to Defendants-Appellees, holding that the speech on which Nagle based her claim was not protected under the First Amendment and that the individual defendants had qualified immunity from suit. The court held, alternatively, that summary judgment would have been appropriate if the speech had been protected, because the District would have fired Nagle even in

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the absence of the speech.3 Nagle appeals. For the reasons stated below, we vacate the district court's grant of summary judgment and remand the case to that court.


I. The Incidents

From 2004 until 2007, Nagle worked as a tenure-track special education teacher at the Chatsworth Avenue School in the Mamaroneck Union Free School District of New York (the " District" ). On March 2, 2007, the school's principal, Defendant-Appellee Steven Castar, and the District's assistant superintendent for human resources, Rosemarie Coletti, informed Nagle that the District's superintendent of schools, Defendant-Appellee Paul Fried, had decided not to recommend her for tenure. Castar and Coletti informed Nagle that, therefore, her probationary employment with the District would be terminated at the end of the school year. Nagle filed suit, claiming that Fried's decision not to recommend her for tenure violated her First Amendment rights because it was made in retaliation for two acts that, she argued, were protected by the First Amendment.

The more recent of these acts took place in January 2007, after Nagle received a copy of a teaching observation report of her class written and signed by the Chatsworth Avenue School's assistant principal, Paula Marron. Nagle had declined to sign the report, but the copy she received appeared to bear her signature. Upon receiving the report, Nagle told Marron, Castar, and John Esposito, the president of Nagle's teachers' union, about the seemingly false signature. After Castar informed him of the alleged forgery, Fried called the police, who determined that no crime had been committed. Nevertheless, Nagle and the District separately hired handwriting experts, each of whom concluded that Marron had signed Nagle's name. Thereafter, Fried declined to renew Marron's contract for the following year, and Marron resigned.

The other act on which Nagle based her claim took place during the 2002-2003 school year, while Nagle was a special education teacher in a public school in Henrico County, Virginia. Nagle had reported to her principal in Virginia that she overheard Betty Moore, a teacher in a neighboring classroom, verbally abusing children in her class. Nagle also informed the chair of the Henrico County Early Childhood Special Education Program Department of reports Nagle had gotten from other adults working in the school who had witnessed Moore both verbally and physically abusing children under her care.4 After a private nurse attending to one of Moore's students reported that she had witnessed Moore strike a child in the chest, Moore resigned from the school, citing family reasons. But Moore kept her

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teaching license. Nagle then conveyed what she had told school administrators to Virginia's Department of Child Protective Services and to the state police. After a police investigation, Moore was charged with several counts of felony child abuse; she eventually pled guilty to assault.

Nagle's conduct in Virginia took place approximately four years before Superintendent Fried declined to recommend her for tenure in New York; according to record testimony, however, Castar and Fried only learned of Nagle's conduct in early 2007, shortly before Nagle was informed of Fried's tenure decision. Nagle argues that the temporal proximity between Fried's learning of the reported abuse incident and his decision not to recommend her for tenure gives rise to an inference of retaliation. Appellees contend that Fried had already made his decision regarding Nagle's tenure before he found out about her report of abuse in Virginia; thus, the Virginia report played no role in the employment decision.

Instead, they assert, the tenure decision was based on Nagle's alleged behavior during a December 2006 meeting. Over the course of this meeting, Castar raised his concerns regarding two instances where Nagle allegedly violated school protocols. The first involved Nagle choosing a book to read with her class without first consulting the school psychologist; the second involved Nagle sending a child home from school early without first consulting school administrators. Nagle was so distraught by what she heard that she left the meeting crying.

II. The Opinion Below

As an initial matter, the district court held that neither the forgery incident, nor the report of abuse were protected under the First Amendment. With respect to the forgery incident, the court determined that because the incident did not involve a crime and may have furthered some " personal agenda" of Nagle's, it was not a matter of public concern and therefore was not protected by the First Amendment. Nagle v. Fried, Order, No. 07-cv-2860 (TSZ) (S.D.N.Y. March 19, 2010) (" Order" ) at 19. With regard to the abuse report, the court held that Nagle's conduct was not protected by the First Amendment " because it undisputedly violated reasonable protocols." Id. at 13. The court further opined that, even had Nagle's abuse report been protected at the time it occurred, " due to temporal and geographic remoteness, ... to the extent it was protected speech when uttered," it " was no longer protected speech when [D]efendants learned of [it] and/or denied her tenure." Id. at 16.

The court then held, in the alternative, that Nagle could not prove causation. Specifically, the court determined that the District had " established, as a matter of law, [that it] would have made the same tenure decision in the absence of [Nagle's] expressive conduct," and that therefore summary judgment would be appropriate even were one or both incidents protected under the First Amendment. Id. at 22.

On the basis of the holdings described above, the district court granted Castar and Fried qualified immunity from Nagle's suit. The court held that, because Nagle's " expressive conduct did not ‘ clearly’ constitute protected speech," a reasonable official in the position of Castar or Fried " would not have known that considering such conduct in reaching an adverse employment decision" might violate Nagle's rights. Id.


We review a grant of summary judgment de novo to determine " whether genuine disputes over material fact exist ...

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which should properly be submitted to a jury or whether, where no issues of material fact are found, the moving party is entitled to judgment as a matter of law." Byrnie v. Town of Cromwell Bd. of Ed., 243 F.3d 93, 101 (2d Cir.2001). We " resolve all ambiguities and draw all inferences in favor of the non-moving party." Id.

" To survive a motion for summary judgment on a First Amendment retaliation claim" in the public employment context, " the plaintiff must present evidence which shows ‘ [1] that the speech at issue was protected, [2] that he suffered an adverse employment action, and [3] that there was a causal connection between the protected speech and the adverse employment action.’ " Cotarelo v. Vill. of Sleepy Hollow Police Dep't, 460 F.3d 247, 251 (2d Cir.2006) (quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir.2000)).5 " If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action even in the absence of the protected conduct." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999) (internal quotation marks omitted); see also Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 780-81 (2d Cir.1991) (noting that a retaliation claim requires that " the adverse action would not have occurred but for the employee's protected actions" ). Since courts do not themselves weigh evidence at the summary judgment stage, this standard requires us to determine whether any reasonable trier of fact would have to conclude that the evidence was so strongly in the defendant's favor that there remained no genuine issue of material fact for it to resolve. See Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 558 (2d Cir.2001) (" ‘ The function of the district court in considering the motion for summary judgment is ... only to determine whether there is a genuine issue to be tried.’ " ) (quoting Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir.1999)).

In the present case, Appellees do not dispute that the decisions not to recommend Nagle for tenure and to recommend the termination of her probationary employment were adverse employment...

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