Cioffi v. Averill Park Central School Dist.

• Decision Date: 04 April 2006
• Docket Number: Docket No. 04-5593-CV.
• Citation: 444 F.3d 158
• Parties: Louis J. CIOFFI III, Plaintiff-Appellant, v. AVERILL PARK CENTRAL SCHOOL DISTRICT BOARD OF ED., Averill Park High School, Averill Park Central School District, Thomas P. McGreevy and Michael J. Johnson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 158

444 F.3d 158

Louis J. CIOFFI III, Plaintiff-Appellant, v. AVERILL PARK CENTRAL SCHOOL DISTRICT BOARD OF ED., Averill Park High School, Averill Park Central School District, Thomas P. McGreevy and Michael J. Johnson, Defendants-Appellees.

Docket No. 04-5593-CV.

United States Court of Appeals, Second Circuit.

Argued September 7, 2005.

Decided April 4, 2006.

Thomas J. Marcelle, Albany, New York (Law Office of Thomas J. Marcelle, Albany New York; Phillip G. Steck, Cooper Erving & Savage LLP, Albany, New York, of counsel), for Plaintiff-Appellant.

Beth A. Bourassa, Albany, New York (Whiteman, Osterman & Hanna, LLP, Albany, New York, of counsel), for Defendants-Appellees.

Before: CARDAMONE, POOLER, and RAGGI, Circuit Judges.

CARDAMONE, Circuit Judge.

This appeal gives added credence to the ancient adage that the bearer of bad news has a losing office.¹ Such is literally true in this case if plaintiff's allegations are accepted. Plaintiff, a public school teacher, claims he expressed concern about a serious hazing incident to his employer the school board and, as a result, lost his job.

Plaintiff Louis J. Cioffi (plaintiff or appellant) claims his job as athletic director/director of physical education was abolished by his employer defendant Averill Park Central School District in retaliation for statements he made about a hazing incident involving high school football players. Cioffi brought a § 1983 employment retaliation action against the School District, the Averill Park Central School District Board of Education (Board of Education or Board), Thomas P. McGreevy, the president of the Board of Education, and Dr. Michael Johnson, the superintendent of the School District (collectively, defendants). When defendants moved for summary judgment dismissing his complaint, the United States District Court for the Northern District of New York (Hurd, J.) granted the motion in an order dated September 30, 2004, holding that Cioffi's statements were not constitutionally protected speech and, even if they were, he had shown no causal connection between his statements and the abolition of his position. The district court also held that defendants McGreevy and Johnson could not be sued in their individual capacities because they were entitled to legislative immunity.

BACKGROUND

From 1981 to 1999 Cioffi was a part-time social studies teacher and part-time athletic director for the Averill Park Central School District. In June 1999 the School District appointed him to the position of full-time athletic director/director of physical education. He held that position for three years until June 2002.

As athletic director, Cioffi supervised Kevin Earl, the football coach at Averill Park Central High School. Earl coached the football team from 1994 to 2001. Over the years, Cioffi had complained to the School Board, previous superintendents, and the current superintendent defendant Johnson about Earl's coaching methods. Cioffi believed Earl was improperly supervising the players and that he was encouraging the high school athletes to use creatine, a muscle enhancing supplement that is considered dangerous.

A. The Hazing Incident

In early October 2001 defendant McGreevy, the president of the Board of Education, received a letter from Lauren Ashdown, a parent of a high school football player. Ashdown relayed stories she had heard of disturbing misbehavior in the boys' locker-room such as a "shampoo bottle [being] shoved up [a student's] rectum." Cioffi and another administrator investigated Ashdown's allegations. The investigation led to an October 12, 2001 interview with a student on the football team. The student, a 14-year-old freshman, told Cioffi that he had been "tea-bagged" by other football players. Tea-bagging is a hazing act — indeed a form of sexual assault — during which the victim is pinned down on the floor by several players while another player rubs his genitalia in the victim's face. After the hazing was brought to Superintendent Johnson's attention, the School District took certain steps to address it, such as changing supervision protocols in the football locker rooms, seeking the involvement of the New York State Police, and advising parents in the School District that unspecified incidents of "sexual harassment and/or hazing" had been uncovered. The School District, however, failed to inform the parents of the freshman who had been the victim of the assault recited above.

B. November 7, 2001 Letter

On November 7, 2001 Cioffi sent a letter to Superintendent Johnson which outlined his prior criticism of Coach Earl and Earl's supervision of the football team. In the letter, plaintiff expressed concern regarding the School District's handling of the subsequent investigation into the tea-bagging. He wrote also that his "overriding concern has been for the health and safety of [the] students, as well as for the school district potentially being held liable for professional misjudgment." Plaintiff requested that the superintendent forward his letter to the School Board, which Johnson did.

C. Events From December 2001 to February 26, 2002

Media scrutiny and greater public interest in the hazing escalated in December 2001 when the public learned the details of the tea-bagging — specifically when the hazing victim filed a criminal complaint on December 1, 2001. This interest persisted for several months as a number of students and teachers were arrested and the entire high school football coaching staff was suspended. On January 22, 2002, however, the Board met in an executive session during which there was an informal consensus to abolish Cioffi's athletic director position as part of the budget for the coming year.

On January 31, 2002, after learning of the impending abolition of his position, Cioffi held a press conference during which he expressed his belief that the Board's decision to eliminate his position was in retribution for his criticisms regarding Coach Earl, the football program, and the investigation into the tea-bagging. Plaintiff reiterated his overriding concern for the student athletes.

A month later, on February 26, 2002, the Board met in public session to vote on the budget for the upcoming school year. It voted to approve the proposed budget which called for the abolition of Cioffi's position of athletic director. The budget created a new position, athletic director/assistant principal. The personnel change was justified on the grounds of fiscal savings to the School District. Although Cioffi lost his athletic director post, as a tenured teacher he exercised retreat rights which allowed him to return to employment as a social studies teacher at a salary lower than he earned as athletic director, but considerably higher than the pay of the teacher he replaced in the social studies department.

DISTRICT COURT PROCEEDINGS

Cioffi brought this § 1983 action claiming defendants abolished his position in retaliation for the November 7, 2001 letter and his comments at his press conference. The district court granted summary judgment in favor of defendants on the grounds that (1) the November 7, 2001 letter and press conference are not protectable speech because they do not address matters of public concern; (2) even if Cioffi's speech constituted protectable speech, there is no causal connection between the speech and the elimination of Cioffi's job; and (3) Superintendent Johnson and President McGreevy were entitled to absolute immunity because the approval of the school budget by the Board was a legislative act. Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 2004 WL 2202761, at *3-*4 (N.D.N.Y. Sept.30, 2004). Cioffi appeals. We affirm in part, vacate in part, and remand.

DISCUSSION

I Applicable Law

A. Standard of Review

We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to plaintiff and resolving all factual ambiguities in his favor. Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121, 124 (2d Cir.2005); Mandell v. County of Suffolk, 316 F.3d 368, 376-77 (2d Cir.2003). We, like the district judge, are not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of fact for trial exists when there is sufficient "evidence on which a jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505.

B. First Amendment Rights of Public Employees

The rights of an individual like Cioffi to speak out on matters of public concern are enshrined in the First Amendment to the Constitution. It is well settled that public school teachers, or athletic directors, as in this case, do not check their First Amendment rights at the schoolhouse door when they enter public employment. See Melzer v. Bd. of Educ., 336 F.3d 185, 192 (2d Cir.2003). Nonetheless, it is also true that a public employer has a distinct interest in regulating the speech of its employees in order to ensure and promote the "efficiency of the public services it performs." Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). The problem is to balance the employee's free speech rights with the interests of the public employer. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Thus, public employees like plaintiff do not enjoy free reign to speak out without regard to the interests of their public employer. See Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir.1996) ("A public employee's right to freedom of speech is not absolute.").

A public employee who makes a First Amendment claim of employment retaliation under § 1983 must show that: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment...