Date: 04-02-2013

Case Style: Kent Singer v. Christopher C. Ferro

Case Number: 11-3919-CV

Judge: Sack

Court: United States Court of Appeals for the Second Circuit

Plaintiff's Attorney: STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester, New York, for Plaintiffs-
Appellants.

Defendant's Attorney: EARL T. REDDING, Roemer Wallens Gold & Mineaux LLP, Albany, New York, for
Defendants-Appellees.

Description: 11 Plaintiffs Kent Singer, Thomas Nollner, and Jonathan
12 Decker appeal from a judgment of the United States District Court
13 for the Northern District of New York (David N. Hurd, Judge)
14 granting summary judgment to the defendants on the plaintiffs'
15 First Amendment retaliation claims brought pursuant to 42 U.S.C.
16 § 1983. The plaintiffs allege that the defendants, who are
17 supervisors or officials at the Ulster County, New York Sheriff's
18 Office and the county jail, took adverse employment actions
19 against them in retaliation for a parody created by Singer that
20 suggested corruption among jail officials, and for subsequently
21 filing a lawsuit based upon this alleged retaliation. Because we
22 agree with the district court that neither Singer's parody nor
23 the plaintiffs' lawsuit were what the law considers to be, for
24 these purposes, speech "[1] as a citizen [2] on a matter of
25 public concern," Garcetti v. Ceballos, 547 U.S. 410, 418 (2006),
26 we affirm.
2
1 BACKGROUND
2 This lawsuit arises out of events that took place
3 during the autumn of 2008 at the Ulster County Jail (the "UCJ")
4 in Ulster County, New York. At the time, Singer, Decker, and
5 Nollner were employed at the UCJ, Singer as a corporal, and
6 Decker and Nollner as corrections officers.
7 A. The Parody
8 During a shift in mid-September 2008, Singer created a
9 parody on his work computer. A copy of it is annexed to this
10 opinion. It was a spoof on the familiar Absolut Vodka
11 advertisements, which typically display an Absolut Vodka bottle
12 adorned or transformed in some thematic fashion, and beneath the
13 bottle a two-word phrase beginning with the word "Absolut."
14 Singer's version displayed in or on the bottle pictures of four
15 UCJ officials -- two of whom are defendants Becker and Ferro --
16 and the caption read, "Absolut Corruption." The parody was not
17 original; Singer got the idea from a similar "Absolut Corruption"
18 parody that he had found on the Internet. He printed out the
19 previous version and then overlaid it with images of his targets.
20 At his deposition, Singer described his parody as "a
21 political statement" that he "thought . . . was funny." Dep. of
22 Kent Singer, Oct. 25, 2010 ("Singer Dep."), at 19; Joint App'x at
23 237. He meant the parody to refer to what he considered to be
24 corrupt practices among jail officials involving preferential
25 hiring and staffing, selective enforcement in matters of employee
3
1 discipline, and other miscellaneous forms of favoritism. When
2 asked whether "the reasons [he regarded the persons portrayed as
3 corrupt] are generally internal reasons," he replied "Yes,"
4 stating that his complaints concerned both his "specific
5 employment within the jail" and matters of employment "in
6 general." Singer Dep. at 39; Joint App'x 242.
7 After he created the parody, Singer showed it to five
8 fellow employees. Among them were Nollner and Decker. Singer
9 then discarded the parody in a trash can in an employee common
10 area. He testified at his deposition that he never intended to
11 show it to anyone else. His intentions were thwarted, however,
12 when another employee retrieved the parody from the trash.
13 Eventually, it made its way to the people depicted on the bottle,
14 including defendants Ferro and Becker.1
15 B. The Alleged Retaliation
16 Ferro and Becker, who were both UCJ supervisors,
17 thought that all three of the plaintiffs were involved in
18 creating the parody. They allegedly used their supervisory
19 authority to retaliate against the plaintiffs.
20 The first incident took place in late September 2008.
21 Since April of that year, Singer had not been required to
22 participate in "prisoner transports." This was at Singer's
23 request: His mother had been ill, and he had asked to be removed
Warden Ray Acevedo, who is not a named defendant, also 1
received a copy.
4
1 from transport duty so that he could remain at the UCJ, ready to
2 leave and attend to her in case of emergency. But soon after the
3 parody was circulated, Singer found himself assigned to
4 transports. Ferro and another supervisor were responsible for
5 the assignments to prisoner transports at this time.
6 Singer complained about the assignment. On October 1,
7 2008, Becker called Singer into his office for a meeting. Singer
8 had heard that Ferro and Becker were "head hunting" over the 2
9 parody, Singer Dep. at 81; Joint App'x at 253, so he concealed a
10 small tape recorder in his breast pocket in order to record the
11 meeting. During the meeting, Becker told Singer that he would
12 respect Singer's request to be kept off transport duty, but also
13 confronted Singer about the parody, telling him that he knew
14 Singer had created it.
15 The alleged retaliation against Decker and Nollner
16 began about the same time. Decker asserts that one day shortly
17 after the parody was circulated, he became ill while at work and
18 went to Ferro's office to ask if he could leave for the day.
19 Ferro not only declined the request, but also told Decker that he
20 "heard from other people that [Decker] had something to do with
21 [the parody]," and proposed that he and Decker "deal with [it]
22 the old fashioned way" by "tak[ing] [the matter] outside." Dep.
Singer was apparently employing a slang use of the 2
expression: "The process of attempting to remove influence and
power from enemies, especially political enemies."
http://www.thefreedictionary.com/headhunting (last visited Mar.
28, 2013).
5
1 of Jonathan Decker, Oct. 4, 2010 ("Decker Dep."), at 63; Joint
2 App'x at 192.
3 Decker and Nollner also allege that their perceived
4 involvement with the parody affected their work assignments.
5 Both Decker and Nollner had been members of the Sheriff's
6 Emergency Response Team ("SERT") -- a unit that dealt with
7 "problem inmates" -- for about a decade. Dep. of Thomas Nollner,
8 Oct. 4, 2010 ("Nollner Dep.), at 13; Joint App'x at 51; Decker
9 Dep. at 26; Joint App'x at 155. They allege that in a March 2009
10 SERT meeting, Becker looked directly at Decker and Nollner while
11 telling the group that he "kn[e]w SERT members were in the room
12 when Corporal Singer made the parody," Nollner Dep. at 53;
13 Joint App'x at 91, and Ferro then stated that he had "lost a lot
14 of respect" for those members, Nollner Dep. at 58; Joint App'x at
15 96. Becker then assigned two leadership positions in SERT to
16 members who had less seniority than Decker and Nollner.
17 C. Procedural History
18 On June 15, 2009, the plaintiffs brought this lawsuit
19 pursuant to 42 U.S.C. § 1983. The parody, they contended, was
20 speech on a matter of public concern. They argued that Ferro and
21 Becker's retaliation therefore violated Singer's right to freedom
22 of speech, and Decker and Nollner's right to political
23 association -- all guaranteed by the First Amendment.
24 Soon after the lawsuit was filed, at the urging of
25 Ulster County Undersheriff Frank Faluotico, Warden Acevedo
6
1 removed Decker and Nollner from the SERT Team entirely. Acevedo
2 testified that he did so because the lawsuit had created
3 "friction" amongst team members. Dep. of Ray Acevedo, Oct. 27,
4 2010, at 21-22; Joint App'x at 303. Faluotico testified that
5 "[t]he lawsuit had caused a breakdown in communication which was
6 a breakdown in officer safety." Dep. of Frank P. Faluotico, Jr.,
7 Oct. 27, 2010, at 16; Joint App'x at 320. Decker and Nollner
8 assert that this was a pretext, and that their removal was in
9 fact solely in retaliation for their filing of the lawsuit.
10 During discovery, the plaintiffs turned over the tape-
11 recording Singer had made of his October 1, 2008 meeting with
12 Becker regarding the assignment to prisoner transports. The
13 revelation that Singer had tape-recorded the meeting prompted an
14 investigation by the Office of the Ulster County Sheriff. On
15 November 2, 2009, disciplinary charges pursuant to New York Civil
16 Service Law § 75 were levied against Singer for alleged violation
17 of prison rules prohibiting recording and other electronic
18 devices on parts of the premises. Singer was suspended for
19 thirty days without pay pending resolution of the section 75
20 proceedings. Like Decker and Nollner, Singer asserts that this
21 was all a further pretext for punishing him in retaliation for
22 his filing suit.
23 On December 15, 2009, the plaintiffs amended their
24 complaint to add further allegations of violations of their
25 constitutional rights. Decker and Nollner alleged that Faluotico
26 violated their First Amendment rights by causing them to be
7
1 removed from the SERT Team after they filed suit. Am. Compl.
2 ¶ 30; Joint App'x at 18-19. Singer alleged that Paul J. Van
3 Blarcum (the Ulster County Sheriff) and James R. Hanstein (the
4 Superintendent of the Corrections Division) had caused baseless
5 section 75 proceedings to be filed against him in retaliation for
6 bringing the suit. Am. Compl. ¶¶ 33-43; Joint App'x at 19-21.
7 On January 14, 2011, the defendants moved for summary
8 judgment. They argued, among other things, that neither Singer's
9 parody nor the plaintiffs' lawsuit constituted speech on a matter
10 of public concern, as is required for a public employee to
11 sustain a First Amendment claim against his employer. See
12 Connick v. Myers, 461 U.S. 138, 146 (1983). The district court
13 agreed, granting summary judgment to the defendants on all
14 claims. Singer v. Ferro, No. 09-cv-690, 2011 WL 4074177, *10,
15 2011 U.S. Dist. LEXIS 103258, *27 (N.D.N.Y. Sept. 13, 2011). The
16 court also denied the plaintiffs' motion to supplement their
17 pleadings –- Singer had in the interim been terminated pursuant
18 to the section 75 proceedings, and wanted to add a wrongful
19 discharge claim –- as futile. Id., 2011 U.S. Dist. LEXIS 103258,
20 at *28.
21 Judgment was entered for the defendants on September
22 13, 2011, and the plaintiffs appealed.
8
1 DISCUSSION
2 The plaintiffs appeal from the district court's order
3 granting summary judgment on the plaintiffs' claims, pursuant to
4 42 U.S.C. § 1983, of retaliation against (A) Singer for creating
5 the Absolut Corruption parody, (B) Decker and Nollner for
6 associating with Singer in connection with the parody, and (C)
7 all plaintiffs for the filing of, or speech made in connection
8 with, this action. The plaintiffs assert that the defendants
9 retaliated against them for conduct that is protected by the
10 First Amendment, and that this retaliation is therefore
11 redressable under section 1983. "We review the district court's
12 grant of summary judgment de novo, drawing all reasonable
13 inferences and resolving all ambiguities in favor of the non-
14 movant." Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100
15 (2d Cir. 1998).
16 A. The Parody
17 "The mere fact of government employment does not result
18 in the evisceration of an employee's First Amendment rights."
19 Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003). But public
20 employment does substantially curtail the right to speak freely
21 in a government workplace. See Mandell v. County of Suffolk, 316
22 F.3d 368, 382 (2d Cir. 2003) (public employee's free speech
23 rights "are not absolute"). One limitation is that the First
24 Amendment protects a public employee from retaliation by his or
25 her employer for the employee's speech only if "the employee
9
1 sp[eaks] [1] as a citizen [2] on a matter of public concern."
2 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
3 A matter of public concern is one that "relat[es] to
4 any matter of political, social, or other concern to the
5 community." Connick, 461 U.S. at 146. "Whether an employee's
6 speech addresses a matter of public concern must be determined by
7 the content, form, and context of a given statement, as revealed
8 by the whole record." Id. at 147-48. Among the relevant
9 considerations is "whether the speech was calculated to redress
10 personal grievances or whether it had a broader public purpose."
11 Lewis v. Cohen, 165 F.3d 154, 163-64 (2d Cir.), cert. denied, 528
12 U.S. 823 (1999). The question of whether a public employee spoke
13 as a citizen on a matter of public concern is a question of law.
14 Connick, 461 U.S. at 148 n.7, 150 n.10. Only if the court
15 concludes that the employee did speak in this manner does it move
16 on to the so-called Pickering balancing, at which stage "a
17 court . . . balances the interests of the employer in providing
18 effective and efficient public services against the employee's
19 First Amendment right to free expression." Lewis, 165 F.3d at
20 162 (internal citations and quotation marks omitted).
21 Singer contends that his Absolut Corruption parody
22 constitutes speech on a matter of public concern because it
23 addressed alleged corruption in a public institution. During his
24 deposition, Singer was asked to identify precisely the corruption
25 he meant to reference by showing Superintendent Ebel, Warden
26 Acevedo, Ferro, and Becker in the parody.
10
1 Singer apparently suspected Superintendent Ebel of in
2 some way -- it is not clear how -- favoring Becker and Ferro for
3 a promotion to captain, even though it is undisputed by Singer
4 that another officer was promoted before Becker, and that Ferro
5 was never promoted. Singer Dep. at 26-27; Joint App’x at 239.
6 Warden Acevedo was corrupt, Singer explained, because he had been
7 arrested sixteen years before for soliciting prostitution.
8 Singer Dep. at 27-28; Joint App’x at 239.
9 As for Ferro, Singer asserted that he was more likely
10 to grant days off to his friends -- resulting in "payroll
11 discrepancies" -- although Singer could identify no specific
12 instances of such a practice. Singer Dep. at 28, 30-31; Joint
13 App’x at 239-40. According to Singer, Ferro was also "famous for
14 womanizing." Singer Dep. at 28; Joint App’x at 239. And Becker
15 allegedly was corrupt for having received a promotion to head the
16 SERT Team despite his lack of supervisory experience. Singer
17 Dep. at 32-33; Joint App’x at 240-41. Finally, Singer testified
18 more generally that his own complaints were ignored, and that
19 certain of his colleagues were favored with respect to
20 assignments and discipline. Singer Dep. at 40-43; Joint App’x at
21 242-43.
22 We have recognized that governmental corruption is
23 plainly a potential topic of public concern. See, e.g., Johnson,
24 342 F.3d at 112-13 (concluding that speech "alleg[ing] unlawful
25 and corruptive practices" is on a matter of public concern);
11
1 Lewis, 165 F.3d at 164 (discussing as the "typical" public
2 employee speech case one in which the speech concerns "corruption
3 or public wrongdoing"). But it does not follow that any
4 accusation of an employer practice that is alleged to be
5 "corrupt" qualifies for protection. In other words, the First
6 Amendment does not protect all private ventings of disgruntled
7 public employees. Only that "corruption" which constitutes "a
8 subject of general interest . . . to the public," City of San
9 Diego v. Roe, 543 U.S. 77, 84 (2004), is potentially the object
10 of First Amendment solicitude.
11 The "corrupt practices" referred to by Singer's parody
12 are at best of marginal "public interest." Most –- payroll
13 discrepancies, promotions, discipline –- are employment-related
14 matters, as Singer acknowledged during his deposition. It is
15 possible that corruption in these respects, if sufficiently
16 egregious or widespread, might implicate the proper stewardship
17 of the public fisc, or the effective operation of important and
18 sensitive public institutions, and thus would constitute matters
19 of public concern. But we do not think that the public has a
20 substantial interest in minor payroll discrepancies amongst
21 corrections department staff, an isolated promotion to middle
22 management, an arrest sixteen years prior, or rumors of
23 womanizing. Each of these falls far from the kind of legitimate
24 and understandable concerns that the public would have as to
25 these public institutions and their missions.
12
1 The form and context of Singer's parody, as much as its
2 content, tend to confirm this conclusion. Devoid as it was of 3
3 names or specific allegations, the parody was comprehensible only
4 to others who worked at the prison, and only in the most vague
5 manner. Whatever the parody's communicative capacity, moreover,
6 Singer shared it with only five fellow employees before
7 discarding it. He admitted that he had no intention of advancing
8 the matter beyond those five. True, a purely private
9 communication can, if earnestly conveyed, constitute speech "as a
10 citizen . . . commenting upon matters of public concern." See
11 Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 414
12 (1979) (internal quotation marks omitted). But Singer's parody
13 was hardly calculated to advance an important issue in a
14 meaningful way.
15 We by no means imply that Singer's concerns are
16 insignificant. We realize that the sorts of practices about
17 which he complained, when engaged in by any employer, may have a
18 profound -- and wrongful -- impact on any employee's life,
19 whether or not he is employed by the government. Nor do we
20 suggest that the defendants' responses were proper or even
21 permissible. Taking the facts from the record, while drawing all
22 reasonable inferences and resolving all ambiguities in favor of
When we speak of form, we refer not to Singer's choice of 3
parody -- a highly valued means of expression under the
Constitution, see, e.g., Campbell v. Acuff-Rose Music, Inc., 510
U.S. 569 (1994); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
(1988) -- but to his execution of it.
13
1 the plaintiffs, as we must, there is much about the defendants'
2 alleged behavior in the workplace that warrants criticism. And
3 we acknowledge that there is no little irony in the fact that
4 Singer's claim suffers because he did not make more serious
5 allegations or circulate his criticism publicly, to the likely
6 greater injury of the defendants. More serious charges against
7 the defendants, deliberately aimed at a broad public audience,
8 and that presumably would have seriously endangered the
9 defendants and their reputations, might well have been protected
10 by means of a section 1983 lawsuit, while the parody's brand of
11 mere office gossip was not.
12 But under the circumstances of this case, the
13 defendants' alleged overreaction to the parody is not a
14 constitutional issue for this Court to address. It is a concern
15 of the labor laws and of the legislative and executive branches
16 of the State and of Ulster County. We, as a federal court, are
17 under instructions not to "constitutionalize the employee
18 grievance," Connick, 461 U.S. at 154, lest we "compromise the
19 proper functioning of government offices," Roe, 543 U.S. at 82.
20 We thus conclude that Singer did not speak "as a citizen upon
21 matters of public concern." Singh v. City of New York, 524 F.3d
22 361, 372 (2d Cir. 2008) (internal quotation marks omitted).
23
14
1 B. The Expressive Association
2 The conclusion that Singer's parody was not speech "as
3 a citizen upon matters of public concern" also disposes of Decker
4 and Nollner's expressive association claims. "[A] public
5 employee bringing a First Amendment freedom of association claim
6 must persuade a court that the associational conduct at issue
7 touches on a matter of public concern." Cobb v. Pozzi, 363 F.3d
8 89, 102 (2d Cir. 2004). Decker and Nollner's associational
9 conduct is limited to involvement, or perceived involvement, in 4
10 the creation and circulation of Singer's parody. Having
11 determined that Singer's creation and largely involuntary
12 dissemination of the parody is not entitled to First Amendment
There is no suggestion in the record that Decker and 4
Nollner actually were involved in the creation or circulation of
Singer's parody. We have been pointed to no authority binding on
us -- nor found any ourselves -- as to whether a public employee
may sustain a First Amendment claim when he or she did not in
fact engage in the protected activity for which his or her
employer, however mistakenly, retaliated. Since the result is
the same in any event, we assume without deciding that Decker and
Nollner can indeed base their claim on alleged retaliation for
conduct in which the defendants only mistakenly thought Decker
and Nollner had engaged, namely their involvement in, or presence
during, the creation of the parody. We note, however, that
decisions from other Circuits require that, in the First
Amendment context, the plaintiff actually engaged, or at least
intended to engage, in the protected conduct for which he or she
suffered retaliation. See Wasson v. Sonoma County Junior
College, 203 F.3d 659, 662-63 (9th Cir. 2000); Jones v. Collins,
132 F.3d 1048, 1053-54 (5th Cir. 1998); Fogarty v. Boles, 121
F.3d 886, 889-91 (3d Cir. 1997); Barkoo v. Melby, 901 F.2d 613,
619 (7th Cir. 1990).
15
1 protection in this precise context, and finding nothing in the 5
2 record entitling Decker and Nollner's association with Singer and
3 the parody to greater solicitude, we are compelled to affirm the
4 district court's grant of summary judgment against their
5 expressive association claims.
6 C. The Lawsuit
7 The plaintiffs' final claim is that some of the
8 defendants violated their First Amendment rights by retaliating
9 against them for their filing of the initial complaint in this
10 action. Whether their claim is based on the filing of the
11 complaint itself (and thus brought under the First Amendment's
12 Petition Clause) or is instead based on speech contained within
13 this proceeding (and thus cognizable under the Free Speech
14 Clause) it is subject to the same public concern test we have
15 been discussing. See Borough of Duryea v. Guarnieri, 131 S. Ct.
16 2488, 2501 (2011) ("As under the Speech Clause, whether an
17 employee's petition relates to a matter of public concern will
18 depend on 'the content, form, and context of [the petition], as
19 revealed by the whole record.'" (quoting Connick, 461 U.S. at
20 147-48, and n.7)).
It might, of course, be protected in many others. See, 5
e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
(claim of intentional infliction of emotional distress); New
Times, Inc. v. Isaacks, 146 S.W.3d 144 (Tex. 2004) (libel claim).
16
1 The plaintiffs argue, as Singer did with respect to his
2 parody, that their lawsuit touches on a matter of public concern
3 because the complaint included allegations of corruption. As
4 explained above, we conclude that the corruption alleged here is
5 not the sort that is of "general interest to the public." And
6 even if it were, the thrust of this lawsuit is not towards
7 remediating this corruption, but towards the "entirely personal"
8 relief of monetary damages for what are, at bottom, allegations
9 of wrongful treatment as employees and wrongful termination. See
10 Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008)
11 (finding lawsuit not on a matter of public concern where
12 plaintiff lodged "essentially personal grievances" and sought
13 relief "for himself alone"); Ezekwo v. N.Y.C. Health & Hosps.
14 Corp., 940 F.2d 775, 781 (2d Cir.) (observing that plaintiff "was
15 not on a mission to protect the public welfare" in finding
16 lawsuit not on a matter of public concern), cert. denied, 502
17 U.S. 1013 (1991).
18 In reaching this conclusion, we express no view as to
19 whether, or in what circumstances, a public employer's respect
20 for its employees' First Amendment interests is a matter of
21 public concern. Nor do we express a view about whether a lawsuit
22 seeking redress for a First Amendment violation could itself
23 qualify as a matter of public concern even though the underlying
24 First Amendment claim lacks merit.
17
1 We need not consider these situations because this case
2 presents none of them. The plaintiffs brought this action not in
3 furtherance of "the principle that debate on public issues should
4 be uninhibited, robust, and wide-open," New York Times Co. v.
5 Sullivan, 376 U.S. 254, 270 (1964), but in pursuit of victory in
6 a personal dispute with their supervisors. It does not follow
7 from the fact that the plaintiffs present their action in First
8 Amendment clothes that they are entitled under these
9 circumstances to First Amendment protection. Public employees do
10 not enjoy "a right to transform everyday employment disputes into
11 matters for constitutional litigation in the federal courts,"
12 Guarnieri, 131 S. Ct. at 2501; nor, at least in the ordinary
13 case, does retaliation for a plainly unsuccessful attempt at such
14 a transformation itself touch on a matter of public concern
15 solely because the initial suit asserted a First Amendment
16 violation.
17 * * *
18 The district court correctly determined that none of
19 the conduct for which the plaintiffs allege they suffered
20 retaliation touched on a matter of public concern, and that the
21 plaintiffs, as public employees, could therefore not sustain
22 First Amendment claims under section 1983 against the defendants.
18
1 CONCLUSION
2 For the foregoing reasons, the district court's
3 judgment is affirmed. The parties shall bear their own costs on
4 appeal.
19
APPENDIX
20

Outcome: For the foregoing reasons, the district court's judgment is affirmed. The parties shall bear their own costs on appeal.

See: http://www.ca2.uscourts.gov/decisions/isysquery/d762d633-0ae6-48cd-b3fe-ef2567465736/2/doc/11-3919_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d762d633-0ae6-48cd-b3fe-ef2567465736/2/hilite/

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