Konits v. Valley Stream Cent. High School Dist.
| Decision Date | 07 January 2005 |
| Docket Number | Docket No. 04-2106-CV. |
| Citation | 394 F.3d 121 |
| Parties | Carol KONITS, Plaintiff-Appellant, v. VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT, Board of Education of the Valley Stream Central, Ronald D. Valenti, individually and as District Coordinator, Dean Karahalis, individually and as District Coordinator, Robert E. Kaufold, individually and as Principal of Memorial Junior High School, Grace Kerr, individually and as Chairperson, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Dennis A. Bengels, Garden City, NY, (Sharon Cerelle Konits, Plainview, NY, co-counsel), for Plaintiff-Appellant.
Lewis R. Silverman, NY, N.Y. (Tania M. Torno, Rutherford & Christie, LLP, of counsel), for Defendants-Appellees.
Before OAKES, CALABRESI, and STRAUB, Circuit Judges.
Carol Konits, a music teacher, sued the school district where she works, alleging principally retaliation in violation of the First Amendment for filing a prior suit against the same defendants in 1996. The 1996 action, which settled during trial, alleged retaliation against Konits for assisting another employee of the school district in her suit for gender discrimination. The Eastern District of New York, Thomas C. Platt, Judge, granted summary judgment to the defendants, finding that the 1996 lawsuit did not involve speech on a matter of public concern, and, therefore, Konits could not establish a retaliation claim. We disagree that Konits's 1996 suit was not speech on a matter of public concern. Accordingly, we vacate the grant of summary judgment on Konits's retaliation claim and remand to the district court for further proceedings.
Konits is a tenured music teacher in the Valley Stream Central High School District ("the District"). In 1996, she filed a lawsuit against the District, its Board of Education, and several administrators (collectively "the 1996 defendants") alleging that she had suffered a series of adverse personnel actions in retaliation for assisting Marie Kenny, a custodial worker for the District, in bringing an action for gender discrimination in employment. Konits (1) helped Kenny in filing internal complaints with the District; (2) referred Kenny to Konits's sister, a lawyer who then represented Kenny in an EEOC complaint and federal lawsuit against the District; and (3) was listed as a witness for Kenny in Kenny's federal action. Konits alleged that during the time she provided this assistance to Kenny, the 1996 defendants subjected her to a series of retaliatory actions, including removal as orchestra teacher and conductor, reassignment to general music teacher in special education, and deprivation of seniority rights.
Konits's 1996 action survived a motion for summary judgment and proceeded to trial. In denying the 1996 defendants' motion for summary judgment, the district court found that there was an issue of fact regarding "whether the School District's adverse personnel action against plaintiff was in retaliation for her assisting Ms. Kenny." It therefore allowed Konits's claims for First Amendment retaliation and Title VII retaliatory discrimination to go forward. The case was ultimately settled at trial in July 1999.
Konits alleges that, after the settlement, adverse treatment by the defendants continued in that between July 1999 and September 2001, when the instant action was filed, Konits applied for, but was not hired for, several band and orchestra positions. The interviewing and hiring committees for all these positions consisted of two of the individual defendants in the 1996 action. Konits also alleges that she suffered a variety of other hostile actions and derogatory comments during that period.
In response to her treatment by the defendants, Konits filed the instant action pursuant to 42 U.S.C. § 1983 against the same defendants named in the 1996 action plus two additional administrators. Konits's complaint alleges retaliation in violation of the First Amendment and deprivations of equal protection and due process under the Fifth and Fourteenth Amendments as well as state law claims. The defendants subsequently moved for summary judgment on all the claims.
On March 2, 2004, the district court granted summary judgment to the defendants. It found that Konits's "1996 lawsuit was not speech on a matter of public concern" and, therefore, Konits could not establish her retaliation claim. It also found that Konits offered no evidence beyond her own statements to support her Equal Protection claim, and that she had no protectible interests sufficient to make out a claim under the Due Process Clause. In light of these conclusions, the district court found no municipal liability and no need to reach the question of qualified immunity. It also declined to exercise supplemental jurisdiction over Konits's state law claims.
Konits has now appealed the dismissal of her First Amendment claim.1
We review de novo the district court's grant of summary judgment, resolving all ambiguities and drawing all permissible factual inferences in favor of Konits as the non-moving party. See Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004). In determining whether issues of material fact exist in a discrimination case where the employer's state of mind is at issue, we affirm sparingly a grant of summary judgment because "careful scrutiny of the factual allegations may reveal circumstantial evidence to support the required inference of discrimination." Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000).
In order to establish a First Amendment claim of retaliation as a public employee, Konits must show that "(1) h[er] speech addressed a matter of public concern, (2)[s]he suffered an adverse employment action, and (3) a causal connection existed between the speech and the adverse employment action." Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2003). Whether speech addresses a matter of public concern is a question of law to be "`determined by the content, form, and context of a given statement, as revealed by the whole record.'" Johnson v. Ganim, 342 F.3d 105, 113 (2d Cir.2003) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).
We have noted that if the basis for a First Amendment retaliation claim is a lawsuit, the subject of the lawsuit must touch upon a public concern. Cobb, 363 F.3d at 105-06. Here, Konits claims that she was retaliated against for filing her 1996 action, which complained of retaliation for assisting Marie Kenny with a gender discrimination claim. In essence, Konits argues that she was subjected to ongoing retaliation as a result of her assistance to Kenny — retaliation that did not end with the settlement of her first action but that continued until at least the time she filed her second action. Thus, if Konits's 1996 lawsuit addressed a matter of public concern, the public concern requirement would be met for her current lawsuit as well.
When the district court considered Konits's claim in 1996, it found an issue of fact sufficient to defeat a motion for summary judgment: whether the School District's adverse personnel action against Konits was in retaliation for her assisting Ms. Kenny. We therefore find curious its conclusion in 2004 that the 1996 lawsuit was not speech on a matter of public concern.
Gender discrimination in employment is without doubt a matter of public concern. See, e.g., Flamm v. Am. Ass'n Of Univ. Women, 201 F.3d 144, 150 (2d Cir.2000) (). Indeed, we have held repeatedly that when a public employee's speech regards the existence of discrimination in the workplace, such speech is a matter of public concern. See, e.g., Feingold, 366 F.3d at 160 (...
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