Weintraub v. Board of Educ. of City of New York
| Decision Date | 27 January 2010 |
| Docket Number | Docket No. 07-2376-cv. |
| Parties | David H. WEINTRAUB, Petitioner-Appellant, v. BOARD OF EDUCATION OF The CITY SCHOOL DISTRICT OF The CITY OF NEW YORK, Community School District 32, City of New York, Douglas Goodman, Daisy O'Gorman, Felix Vazquez, Frank Miller, Aida Serrano, Lawrence Becker, Jerry Cioffi, Respondents-Appellees.<SMALL><SUP>*</SUP></SMALL> |
| Court | U.S. Court of Appeals — Second Circuit |
Richard A. Engelberg, Kreines & Engelberg, Mineola, NY, for Petitioner-Appellant.
Edward F.X. Hart (Leonard Koerner, on the brief), of Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Respondents-Appellees.
Before: JACOBS, Chief Judge, WALKER, and CALABRESI, Circuit Judges.
Petitioner-Appellant David H. Weintraub, a former New York City public school teacher, appeals from an order of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge), inter alia, dismissing his First Amendment employment retaliation claim against Respondents-Appellees the Board of Education of the City School District of the City of New York, Community School District 32, the City of New York, Douglas Goodman, Daisy O'Gorman, Felix Vazquez, Frank Miller, Aida Serrano, Lawrence Becker, and Jerry Cioffi (collectively, "Defendants"). Weintraub alleged that Defendants violated his First Amendment rights by retaliating against him for filing a formal grievance with his union that challenged the school assistant principal's decision not to discipline a student who had thrown books at Weintraub during class. The district court dismissed Weintraub's claim in light of Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), which held that the First Amendment does not protect speech made pursuant to a public employee's official duties.
We find that Weintraub's filing of the grievance was in furtherance of one of his core duties as a public school teacher, maintaining class discipline, and had no relevant analogue to citizen speech. Accordingly, we conclude that, under Garcetti, 547 U.S. at 421-24, 126 S.Ct. 1951, Weintraub filed the grievance "pursuant to [his] official duties," and thus, not as a citizen for purposes of the First Amendment. The grievance, therefore, is not protected speech, and we affirm the district court's dismissal of Weintraub's retaliation claim.
The underlying facts and procedural history of this case are detailed in the district court's April 28, 2006 opinion that granted in part and denied in part Defendants' motion for summary judgment. See Weintraub v. Bd. of Educ. of City of N.Y., 423 F.Supp.2d 38, 42-48 (E.D.N.Y.2006) ("Weintraub I"). We set forth below only such facts as are relevant to this appeal.
In September 1998, Weintraub began teaching fifth grade at P.S. 274, a public school in Brooklyn, New York. During his first two months, there were no apparent problems in his class, with his performance, or between Weintraub and school administrators.
On Friday, November 6, 1998, after a student threw a book at him during class, Weintraub referred the student to his immediate supervisor, Assistant Principal Douglas Goodman. Shortly thereafter Goodman returned the student to Weintraub's classroom. The next school day, the same student threw additional books at Weintraub. Weintraub again referred the student to Goodman, who returned the student to Weintraub's class.
Weintraub was "upset" by Goodman's decision not to discipline the student and concerned that "if this child could do this to [Weintraub], ... it would put the ... other students at risk." (Pl.'s Dep. 51:17-19, Jul. 19, 2002.) Weintraub subsequently learned that the same student "put a kid in the hospital later in the year." (Pl.'s Dep. 51:20-21, 23-25.) After the second book-throwing incident, Weintraub told Goodman, "If nothing is going to be done, I [will] have to file a grievance with the union to have something done about this because [the student] should be suspended for this," (Pl.'s Dep. 43:3-6), and "it is not an environment a teacher would want to go to where a child is allowed to throw a book at teachers," (Pl.'s Dep. 47:10-12). Weintraub also "underst[oo]d" that under "citywide Board of Education policy ... a student assaulting the teacher in 5th grade ... should have been suspended." (Pl.'s Dep. 44:3-6.) Weintraub told other teachers at P.S. 274 about the incidents and his intention to file a grievance, and then filed the grievance with his union representative.
Weintraub alleges that because of his complaints, including his grievance, Goodman and other school officials retaliated against him through "acts of intimidation, harassment, workplace abuse, and deliberate attempts to undermine [his] authority." Weintraub I, 423 F.Supp.2d at 42. Specifically, Weintraub avers that he received unfounded negative classroom evaluations, performance reviews, and disciplinary reports; was wrongfully accused of sexually abusing a student and abandoning his class; was arrested for misdemeanor attempted assault of another teacher at P.S. 274 on allegedly false grounds; and was ultimately terminated. After the criminal charges against him were dropped, Weintraub was denied reinstatement to teach and unsuccessfully sought review of his dismissal in state court.
In July 2000, Weintraub commenced this action in the Eastern District of New York asserting several claims against Defendants, including adverse employment retaliation in violation of the First Amendment. Defendants moved for summary judgment on all of Weintraub's claims.
On April 28, 2006, the district court denied Defendants' motion with respect to Weintraub's First Amendment claim, reasoning that "the content of speech questioning an administrative response, or lack thereof, to discipline problems in the classroom relates to a matter of public concern, regardless of whether that speech comes from a[n] elected official, citizen, or teacher." Id. at 52. Finding that the "form and context of Weintraub's statements" did not warrant a finding to the contrary, and that Weintraub's "primary motivation was a general concern for safety in the classroom and school," rather than "a desire for some personal gain," the district court held that "Weintraub's complaint to Goodman and subsequent grievance were protected by the First Amendment." Id.
On May 29, 2007, after Defendants moved for reconsideration in light of the Supreme Court's subsequent decision in Garcetti, 547 U.S. at 421-24, 126 S.Ct. 1951, the district court granted in part and denied in part Defendants' motion for summary judgment with respect to Weintraub's First Amendment claim. The district court identified three categories of speech for which Weintraub could "plausibly claim retaliation" (1) [his] private conversation with Goodman in which he expressed his dissatisfaction with Goodman's handling of the book-throwing incidents and threatened to file a grievance if the situation was not rectified; (2) Weintraub's conversations with other teachers about the incidents and Goodman's failure to impose adequate discipline; and (3) the formal grievance itself.
Weintraub v. Bd. of Educ. of City of N.Y., 489 F.Supp.2d 209, 214 (E.D.N.Y.2007) ("Weintraub II").
The district court denied summary judgment with respect to the second category, because "Weintraub's conversations with other teachers about his conflict with Goodman ... [we]re clearly not within the scope of his employment duties." Id. at 220.
In contrast, the district court concluded that under Garcetti and in light of cases from other circuits applying Garcetti in similar situations, the First Amendment does not protect the first and third categories of speech: "In both instances, Weintraub was speaking as an employee, proceeding through official channels to complain about unsatisfactory working conditions." Id. at 219-20. The district court, however, believed that "a substantial ground for difference of opinion may exist on" the precise issue of "whether a public employee acts as an `employee,' and not as a `citizen,' when he notifies his supervisors, either formally or informally, of an issue regarding the safety of his workplace that touches upon a matter of public concern, as well as on the employee's own private interests." Id. at 221-22. The district court noted that the issue was one of first impression in this circuit. The district court then dismissed Weintraub's First Amendment claims based on his conversation with Goodman and his filing of a grievance. The district court encouraged Weintraub to file an interlocutory appeal on the basis that the case involves a controlling question of law for which there is substantial ground for difference of opinion, and stated its intent to stay the action pending the outcome of any such appeal.
Pursuant to 28 U.S.C. § 1292(b), we accepted Weintraub's interlocutory appeal, which is limited to the question of whether the First Amendment protects his filing of a grievance. We now examine his claim.
We review de novo the district court's partial grant of summary judgment, construing the evidence in the light most favorable to the non-moving party. See Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999). Summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law," Fed.R.Civ.P. 56(c), and accordingly, when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
"Regardless of the factual context, we have required a plaintiff alleging retaliation to establish speech protected by the First Amendment."...
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