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Risa A. Ross v. Peter F. Breslin

September 10, 2012

RISA A. ROSS, PLAINTIFF-APPELLEE,
v.
PETER F. BRESLIN, EVE HUNDT, MICHAEL GORDON, FELYCIA SUGARMAN, DONNA WALSH, BRUCE PAVALOW, WARREN SCHLOAT, BOARD OF EDUCATION OF THE KATONAH-LEWISBORO UNION FREE SCHOOL DISTRICT, KATONAH- LEWISBORO UNION FREE SCHOOL DISTRICT, KEVIN SHELDON, DEFENDANTS, ROBERT LICHTENFELD, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: John M. Walker, Jr., Circuit Judge:

10-5275

Ross v. Lichtenfeld

Submitted: January 17, 2012

29 Before : WALKER, LEVAL, and POOLER, Circuit Judges.

30 Defendant-appellant Robert Lichtenfeld appeals from an order 31 of the United States District Court for the Southern District of 32 New York (William G. Young, Judge) denying Lichtenfeld's motion 33 for summary judgment with regard to plaintiff-appellee's claim 1 that she was fired in retaliation for her reports of financial 2 malfeasance. We conclude that plaintiff-appellee was speaking 3 pursuant to her official duties as a public employee and her 4 speech was therefore not protected by the First Amendment. 5 Accordingly, we hold that defendant-appellant is entitled to 6 summary judgment. REVERSED.

This appeal requires us to determine whether plaintiff- 18 appellee Risa A. Ross ("Ross") was speaking pursuant to her 19 official duties as a payroll clerk typist for the Katonah- 20 Lewisboro Union Free School District ("the District") when she 21 reported financial malfeasance to defendant-appellant Robert 22 Lichtenfeld ("Lichtenfeld"), the District's Superintendent, and 23 to the Katonah-Lewisboro Board of Education ("the Board"). The 24 United States District Court for the Southern District of New 25 York (William G. Young, Judge) held that Ross was speaking as a 26 private citizen and that her First Amendment retaliation claim 27 could proceed to trial. We disagree. We conclude that Ross's 28 complaints were made pursuant to her official duties and 1 therefore were not protected by the First Amendment. See 2 Garcetti v. Ceballos, 547 U.S. 410 (2006). Accordingly, 3 Lichtenfeld is entitled to summary judgment on Ross's First 4 Amendment retaliation claim.

6 BACKGROUND

7 When reviewing an interlocutory appeal from a denial of a 8 motion for summary judgment, we resolve all factual disputes in 9 favor of the non-movant. Droz v. McCadden, 580 F.3d 106, 108 (2d 10 Cir. 2009). In 1998, Ross was hired by the District as a payroll 11 clerk typist. Her immediate supervisor was Margaret Taylor. 12 Lichtenfeld was, at all relevant times, the District's 13 Superintendent. Ross testified that her job duties were: 14 To process biweekly payrolls for approximately 800 15 people, transmit direct deposit, [and] mail out [checks 16 relating to other payments, such as taxes and 17 garnishments,] . . . . getting the pay reqs. 18 [requisitions] . . . and processing, making sure that 19 the pay rates were correct, making sure that the totals 20 were correct, and verifying. If there was a mistake 21 with a pay req., bringing it to the appropriate 22 person's attention.

24 If it was a mistake that I felt was a mistake, I would 25 bring it to the person's attention. . . . If there was 26 a pay req. that I disagreed with and I had questions 27 about . . .

29 I brought - a lot of them I brought to Bob 30 [Lichtenfeld]'s attention that I didn't think were 31 appropriate.

1 Ross Deposition 64-65. Ross's job required her to know the 2 current salary of each district employee.

3 Between May 2003 and July 2006, Ross met with Lichtenfeld on 4 numerous occasions to express concern over payments she believed 5 to be improper. At their first meeting in May 2003, Ross 6 informed Lichtenfeld that Howard "Lee" Turner, a District 7 courier, had forged his supervisor's signature to obtain 8 additional pay. Ross played voicemails for Lichtenfeld in which 9 a supervisor told her to forget about Turner's actions and not 10 say anything. Lichtenfeld informed the Board of Turner's 11 forgery. Turner voluntarily resigned to avoid disciplinary 12 action and received compensation for his accrued vacation time 13 and two months of continued health insurance. 14 On February 10, 2004, Ross again met with Lichtenfeld to 15 tell him that John Thibdeau, the director of administrative 16 services, was retaliating against her for questioning improper 17 payments he had approved and for an incident involving Lisa Kor. 18 At this meeting, Ross gave Lichtenfeld documentation of some of 19 these disbursements. When Lichtenfeld looked at the 20 documentation, he said something to the effect of: "Oh, my God.

21 This is worse than the Enron scandal. If taxpayers find out 22 heads will spin." Ross Deposition 119. Following this meeting, 23 Ross continued to meet with Lichtenfeld about similar complaints.

1 Ross's complaints primarily concerned improper disbursements 2 which she believed were made without the required Board approval 3 based on her review of Board meeting agendas. She had been told 4 by Lichtenfeld that "Board action people" (individuals not under 5 contract who must be annually approved by the Board) were not 6 entitled to overtime. She approached Lichtenfeld with examples 7 of Board action people who were receiving overtime pay without 8 Board approval. Similarly, Lichtenfeld told Ross that it was 9 illegal to give out bonuses or performance awards without Board 10 approval. Ross complained of numerous performance awards, 11 bonuses, stipends, at least one longevity payment, and other 12 miscellaneous disbursements all of which ...


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