17-3839 Luke Weinstein v. University of Connecticut, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of December, two thousand eighteen.
Present: DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges, PAUL A. CROTTY, District Judge.* _____________________________________
LUKE WEINSTEIN,
Plaintiff-Appellant,
v. 17-3839
UNIVERSITY OF CONNECTICUT, P. CHRISTOPHER EARLEY
Defendants-Appellees _____________________________________
For Plaintiff-Appellant: TODD STEIGMAN, (Jacques J. Parenteau on the brief), Madsen, Prestley & Parenteau, LLC, Hartford, Connecticut
* Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by designation.
1 For Defendants-Appellees: NANCY A. BROUILLET, Assistant Attorney General (Erik T. Lohr, Assistant Attorney General, on the brief), for George Jepsen, Attorney General for the State of Connecticut, Hartford, Connecticut
Appeal from a judgment of the United States District Court for the District of Connecticut
(Eginton, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Luke Weinstein appeals from an award of summary judgment to the
former dean of the University of Connecticut’s School of Business, P. Christopher Earley, entered
on November 1, 2017, on Weinstein’s First Amendment claim of employer retaliation, brought
pursuant to 42 U.S.C. § 1983.
We review a district court’s grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police
Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only
when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Doninger
v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We may affirm on
any grounds supported by the record, whether or not relied upon by the district court. See Mitchell
v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016). We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
A plaintiff claiming First Amendment retaliation must make a prima facie showing of (1)
constitutionally protected speech, (2) an adverse action, and (3) a causal connection between that
adverse action and the protected speech. Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir.
2015). The doctrine in this area balances two important interests: “Government employers, like
2 private employers, need a significant degree of control over their employees’ words and actions,”
and yet, “public employees do not surrender all their First Amendment rights by reason of their
employment.” Garcetti v. Ceballos, 547 U.S. 410, 417-18 (2006).
Weinstein asserts that the district court erred in holding that a labor grievance he filed with
the University was not protected speech. He also claims that the district court improperly decided
disputed issues of fact in applying the Pickering interest-balancing framework, see Pickering v.
Board of Education, 391 U.S. 563 (1968), and in holding that Earley was entitled to the Mount
Healthy defense. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). We
need not decide these issues, however, because we conclude that Earley is entitled to qualified
immunity.
Under the doctrine of qualified immunity, government officials, such as school
administrators, “are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is “clearly established” if
“it would be clear to a reasonable person in the position of the defendant that his conduct was
unlawful in the situation he confronted.” Colvin v. Keen, 900 F.3d 63, 75 (2d Cir. 2018) (quoting
Saucier v. Katz, 533 U.S. 194, 202 (2001) (alterations omitted)). We do not “define clearly
established law at a high level of generality.” City of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76
(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, clearly established law
must be “particularized” to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
A court need not rely on a “case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741.
3 We conclude that qualified immunity is appropriate here. “Whether speech by a public
employee is protected from retaliation under the First Amendment begins with this question:
‘whether the employee spoke as a citizen on a matter of public concern.’” Huth v. Haslun, 598
F.3d 70, 73-74 (2d Cir. 2010) (quoting Garcetti, 547 U.S. at 418). Weinstein alleges that he
engaged in protected speech both when he brought a complaint to the University’s Director of
Compliance concerning Earley’s allegedly nepotistic behavior and when he filed a labor grievance
with the University. Given the “specific facts and context” of Weinstein’s comments, Doninger,
642 F.3d at 351 (quoting Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007)), it was objectively
reasonable for Earley to believe he could decide not to reappoint Weinstein as Assistant Professor
in Resident without violating Weinstein’s First Amendment rights.
At the time the University decided not to reappoint Weinstein (2011), our case law
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17-3839 Luke Weinstein v. University of Connecticut, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of December, two thousand eighteen.
Present: DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges, PAUL A. CROTTY, District Judge.* _____________________________________
LUKE WEINSTEIN,
Plaintiff-Appellant,
v. 17-3839
UNIVERSITY OF CONNECTICUT, P. CHRISTOPHER EARLEY
Defendants-Appellees _____________________________________
For Plaintiff-Appellant: TODD STEIGMAN, (Jacques J. Parenteau on the brief), Madsen, Prestley & Parenteau, LLC, Hartford, Connecticut
* Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by designation.
1 For Defendants-Appellees: NANCY A. BROUILLET, Assistant Attorney General (Erik T. Lohr, Assistant Attorney General, on the brief), for George Jepsen, Attorney General for the State of Connecticut, Hartford, Connecticut
Appeal from a judgment of the United States District Court for the District of Connecticut
(Eginton, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Luke Weinstein appeals from an award of summary judgment to the
former dean of the University of Connecticut’s School of Business, P. Christopher Earley, entered
on November 1, 2017, on Weinstein’s First Amendment claim of employer retaliation, brought
pursuant to 42 U.S.C. § 1983.
We review a district court’s grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police
Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only
when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Doninger
v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We may affirm on
any grounds supported by the record, whether or not relied upon by the district court. See Mitchell
v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016). We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
A plaintiff claiming First Amendment retaliation must make a prima facie showing of (1)
constitutionally protected speech, (2) an adverse action, and (3) a causal connection between that
adverse action and the protected speech. Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir.
2015). The doctrine in this area balances two important interests: “Government employers, like
2 private employers, need a significant degree of control over their employees’ words and actions,”
and yet, “public employees do not surrender all their First Amendment rights by reason of their
employment.” Garcetti v. Ceballos, 547 U.S. 410, 417-18 (2006).
Weinstein asserts that the district court erred in holding that a labor grievance he filed with
the University was not protected speech. He also claims that the district court improperly decided
disputed issues of fact in applying the Pickering interest-balancing framework, see Pickering v.
Board of Education, 391 U.S. 563 (1968), and in holding that Earley was entitled to the Mount
Healthy defense. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). We
need not decide these issues, however, because we conclude that Earley is entitled to qualified
immunity.
Under the doctrine of qualified immunity, government officials, such as school
administrators, “are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is “clearly established” if
“it would be clear to a reasonable person in the position of the defendant that his conduct was
unlawful in the situation he confronted.” Colvin v. Keen, 900 F.3d 63, 75 (2d Cir. 2018) (quoting
Saucier v. Katz, 533 U.S. 194, 202 (2001) (alterations omitted)). We do not “define clearly
established law at a high level of generality.” City of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76
(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Instead, clearly established law
must be “particularized” to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
A court need not rely on a “case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft, 563 U.S. at 741.
3 We conclude that qualified immunity is appropriate here. “Whether speech by a public
employee is protected from retaliation under the First Amendment begins with this question:
‘whether the employee spoke as a citizen on a matter of public concern.’” Huth v. Haslun, 598
F.3d 70, 73-74 (2d Cir. 2010) (quoting Garcetti, 547 U.S. at 418). Weinstein alleges that he
engaged in protected speech both when he brought a complaint to the University’s Director of
Compliance concerning Earley’s allegedly nepotistic behavior and when he filed a labor grievance
with the University. Given the “specific facts and context” of Weinstein’s comments, Doninger,
642 F.3d at 351 (quoting Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir. 2007)), it was objectively
reasonable for Earley to believe he could decide not to reappoint Weinstein as Assistant Professor
in Resident without violating Weinstein’s First Amendment rights.
At the time the University decided not to reappoint Weinstein (2011), our case law
indicated that for speech to be on a matter of public concern it should have “a broader public
purpose” and not be merely “calculated to redress personal grievances.” Reuland v. Hynes, 460
F.3d 409, 417 (2d Cir. 2006) (quotation omitted). By contrast, Weinstein’s complaints were
“personal in nature and generally related to [his] own situation,” and did not expose “pervasive or
systemic misconduct by a public agency.” Huth, 598 F.3d at 74–75 (quotation omitted). Weinstein
made his first nepotism allegations while disputing changes being made to the University’s
Innovation Accelerator Program, and subsequently when contesting the University’s handling of
his reappointment. In both instances, his speech was focused on the private matter of his
employment, which is not a matter of public concern. See Lewis v. Cowen, 165 F.3d 154, 164 (2d
Cir. 1999) accord Ezekwo v. N.Y. City Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991).
Although a speaker’s motive is not “dispositive” for the public concern inquiry, Sousa v. Roque,
578 F.3d 164, 169 (2d Cir. 2009), given the context of Weinstein’s comments, at a minimum,
4 officials “‘of reasonable competence could disagree’ on” whether Weinstein’s speech was
protected by the First Amendment. Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In such circumstances the Defendant-
Appellee Earley is entitled to qualified immunity.
We have considered Weinstein’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk