Shara v. Maine-Endwell Cent. Sch. Dist.

46 F.4th 77

James SHARA, Plaintiff-Appellant,

v.MAINE-ENDWELL CENTRAL SCHOOL DISTRICT, Defendant-Appellee.

No. 20-2068

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: March 15, 2021

Decided: August 18, 2022

RONALD R. BENJAMIN, Binghamton, NY, for Plaintiff-Appellant.

ANGELO D. CATALANO, Coughlin & Gerhart, LLP, Binghamton, NY, for Defendant-Appellee.

Before: Pooler, Sullivan, and Park, Circuit Judges.

Judge Pooler dissents in a separate opinion.

Richard J. Sullivan, Circuit Judge:

Plaintiff-Appellant James Shara, a former bus driver for Defendant-Appellee Maine-Endwell School District (the "School District"), appeals from the dismissal of his complaint (the "Complaint") by the district court (McAvoy, J. ). In the Complaint, Shara alleged that the School District suspended and ultimately terminated him for arguing with a School District mechanic – and later with School District officials – over the frequency with which bus inspection results should be reported. This, he argues, infringed his right to engage in speech protected by the First Amendment. But "when public employees make statements pursuant to their official duties, ... the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos , 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). "Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern ." Id. at 417, 126 S.Ct. 1951 (emphasis added).

Here, the specific details provided in the Complaint suggest that Shara's arguments with fellow School District personnel were had in his capacity as a School District employee, not as a private citizen. Shara's primary argument to the contrary boils down to a series of (largely conclusory) assertions that he was speaking in his capacity as a union official. But even assuming these assertions are "entitled to be assumed true," cf. Ashcroft v. Iqbal , 556 U.S. 662, 681, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), our Court has expressly rejected any "categorical[ ]" rule "that when a person speaks in his capacity as a union member, he speaks as a private citizen," Montero v. City of Yonkers , 890 F.3d 386, 399 (2d Cir. 2018). Likewise, while Shara now argues that his arguments with co-workers addressed matters of public concern insofar as bus-inspection reporting implicates the safety of all children riding the buses, he never alleged in his Complaint that the School District's preferred reporting policy resulted in unsafe conditions or that his proposal of daily reporting would have improved safety.

Accordingly, we conclude that Shara's Complaint does not support a plausible inference that he spoke as a citizen, or that he spoke on a matter of public concern. Because Shara has failed to establish that he engaged in protected speech, he cannot make out a prima facie case of First Amendment retaliation. We therefore AFFIRM the district court's dismissal of Shara's Complaint.

I. Background

According to his Complaint, Shara was employed as a bus driver by the School District from June 2016 to January 2019. After he was elected Vice President of the bus drivers’ union in May 2018, Shara began raising concerns, purportedly on behalf of union members, about matters including bus safety.

In October 2018, Shara spoke with Doug Miller, a transportation mechanic for the School District, about "safety issues" with two specific buses that had failed inspection. J. App'x at 18. In the discussions that ensued, the pair disagreed about the frequency with which the safety issues should be reported, with Shara insisting that the issues "be reported on a daily basis until corrected," and Miller maintaining that they "only need[ed] to be reported one time." Id. Ultimately, the disagreement was resolved by Mike Aubel, the School District's Director of Auxiliary Services, who agreed with Miller on the reporting protocol. Nevertheless, Shara continued to raise the issue of reporting procedures over the following weeks, allegedly "acting solely in his role as Vice President of the Union with respect to safety issues and reporting requirements." Id. Nowhere in his Complaint, however, did Shara allege that unsafe buses were permitted on the road; that his preferred method of daily reporting would have resulted in faster, cheaper, or more effective repairs; or that he ever asserted as much in any of his conversations with Miller or Aubel.

After Shara refused to abide by Aubel's decision, the School District's Director of Personnel Relations, Randy Ray, told Shara that he would be charged with insubordination if he continued to insist on his preferred method of reporting. When Shara persisted, Aubel sent Shara a counseling memorandum in January 2019, urging him to "comply with expectations," including in "the discussions" he purported to be "carrying out in his capacity as Vice President of the Union," and warned that he could be disciplined or fired if his behavior continued. Id. at 18–19. Three days later, Shara was placed on administrative leave, and after another three days, he was terminated.

On January 10, 2020, Shara filed his Complaint in district court, alleging that the School District, a public employer, had violated his First Amendment rights by firing him "for engaging in activity on behalf of the Union" and "advocating for employees [who were members] of the Union." Id. at 19. Shara sought compensatory damages, reinstatement, and attorney's fees. The School District filed a motion to dismiss, arguing that the court lacked subject-matter jurisdiction or, alternatively, that the Complaint failed to state a claim on which relief could be granted.

The district court dismissed Shara's Complaint with prejudice on June 12, 2020. The court determined that it had subject-matter jurisdiction to consider Shara's claims but held that he had failed to state a First Amendment retaliation claim. Specifically, the court concluded that when he argued with School District employees about the procedures for reporting bus safety issues, Shara had not spoken as "a private citizen on a matter of public concern" but rather as an employee on an employment matter "pursuant to his official duties." Id. at 8–9. Shara timely appealed.

II. Standard of Review

We review de novo a district court's dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6), see Montero , 890 F.3d at 394, "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff," Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). We need not, however, accept bare legal conclusions included in a plaintiff's complaint. Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and provide more than a "formulaic recitation of the elements of a cause of action" or "naked assertions devoid of further factual enhancement," Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks and alterations omitted).

III. Applicable Law

To make out a "prima facie case of First Amendment retaliation, a plaintiff must establish (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Scott v. Coughlin , 344 F.3d 282, 287 (2d Cir. 2003) (internal quotation marks omitted). This Court and the Supreme Court have long recognized that "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti , 547 U.S. at 417, 126 S.Ct. 1951 ; see also Pickering v. Bd. of Educ. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ; Janusaitis v. Middlebury Volunteer Fire Dep't , 607 F.2d 17, 25–26 (2d Cir. 1979). So in assessing the first prong of the retaliation test – whether a public employee's speech is protected – we must consider "two separate subquestions": (1) whether the employee "spoke as a citizen rather than solely as an employee," and (2) whether he spoke on "a matter of public concern." Matthews v. City of New York , 779 F.3d 167, 172 (2d Cir. 2015) (internal quotation marks omitted). If either question is answered in the negative, our inquiry may end there. If both questions are answered in the affirmative, we may proceed to consider whether the employer "had an adequate justification for treating the employee differently from any other member of the general public based on the government's needs as an employer." Id. (citations omitted).

A. Citizen Speech

Turning to the first subquestion, we recognize "two relevant inquiries to determine whether a public employee speaks as a citizen." Montero , 890 F.3d at 397. First, courts may consider whether the employee's speech falls outside of his official responsibilities; second, they may ask "whether a civilian analogue" to the employee's speech exists. Id. (internal quotation marks omitted); see also Weintraub v. Bd. of Educ. , 593 F.3d 196, 203–04 (2d Cir. 2010) (explaining that submitting letters to a local newspaper or discussing politics with a coworker are forms of speech with civilian analogues, while an internal communication pursuant to an employer's dispute-resolution policy is not). While this latter inquiry "may be of some help in determining" whether an employee speaks as a citizen, we have emphasized that the heart of our analysis is "whether the speech at issue is itself ordinarily within the scope of an employee's duties." Montero , 890 F.3d. at 397–98.

To determine whether a public employee speaks pursuant to his official duties, courts "examine the nature of the plaintiff's...