The Second U.S. Circuit Court of Appeals has reversed a district judge’s grant of summary judgment, finding that an athletic director was engaged in protected speech when he criticized a coach and was subsequently fired.
Specifically, the court found that there may have been a connection between the district’s decision and the AD’s protected speech, which centered on his criticism of the head football coach for his support of creatine use and allowing the hazing of football players.
Louis Cioffi became the full-time athletic director/director of physical education for the Averill Park Central School District in June 1999. As such, he supervised the district’s football coach, Kevin Earl, who had held the post since 1994.
Over the years, Cioffi had complained to the School Board, previous superintendents and the current superintendent about Earl’s coaching methods. “Cioffi believed Earl was improperly supervising the players and that he was encouraging the high school athletes to use creatine, a muscle enhancing supplement that is considered dangerous,” wrote the court.
Cioffi’s criticism escalated when a parent wrote a letter relaying “stories she had heard of disturbing misbehavior in the boys’ locker-room such as a ‘shampoo bottle [being] shoved up [a student’s] rectum.’” Additional stories of “sexual harassment and/or hazing” surfaced during the investigation.
As the stories broke into the public spotlight, various students and teachers were arrested and the entire high school football coaching staff was suspended.
Cioffi sent a letter to the school superintendent on Nov. 7, 2001, expressing concern about the district’s handling of the incident and asking the superintendent to forward the letter to the school board.
On January 22, 2002, the Board met in an executive session “during which there was an informal consensus to abolish Cioffi’s athletic director position as part of the budget for the coming year.”
Cioffi held a press conference in which he claimed the abolishment of his position was related to his complaints.
Cioffi brought a § 1983 employment retaliation action against the School District and various officials. The district court granted the defendant’s summary judgment motion on the grounds that (1) the November 7, 2001 letter and press conference are not protectable speech because they do not address matters of public concern; (2) even if Cioffi’s speech constituted protectable speech, there is no causal connection between the speech and the elimination of Cioffi’s job; and (3) Superintendent Johnson and President McGreevy were entitled to absolute immunity because the approval of the school budget by the Board was a legislative act. Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 2004 U.S. Dist. LEXIS 19620, No. 1:02-CV-887, 2004 WL 2202761, at *3-*4 (N.D.N.Y. Sept. 30, 2004).
Cioffi appealed the ruling.
The appeals court began by noting that for Cioffi to establish a claim and shift the burden to the defendants, he must show: (1) his speech addressed a matter of public concern, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and that adverse employment decision, so that it can be said that the plaintiff’s speech was a motivating factor in the adverse employment action. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
“The letter and press conference discuss and stem from an incident of obvious concern to the public — the sexual assault of a student on school property,” wrote the appeals court. “Any community would be acutely interested in such an incident that constitutes nothing less than a criminal attack on a minor. The incident itself, the deficiencies in adult supervision that allowed it to occur, and the possible insufficiencies of the school’s response implicate the health, welfare and safety of young students, all of which are matters of importance to the public. See, e.g., Calvit v. Minneapolis Pub. Sch., 122 F.3d 1112, 1117 (8th Cir. 1997)”
The court also confirmed the existence of an adverse employment decision, satisfying the second prong set forth in Morris. But before opining on whether “a causal connection exists,” it turned to the defendants’ argument that Cioffi’s “’primary purpose’ in writing the letter and holding the press conference was to save his job by denying any personal responsibility for the hazing incident.
“To begin with, defendants’ contention that a speaker’s primary motivation for speaking is dispositive in determining whether speech is personal or public conflicts directly with the Supreme Court’s holding in Connick,” wrote the court, citing Connick v. Myers, 461 U.S. 138, 151-52, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983).
In fact, the court wrote that the “defendants’ portrayal of Cioffi’s speech as a ‘don’t blame me’ measure bolsters, rather than diminishes, the public nature of the speech. By proclaiming that he is not to blame, Cioffi presents a theory of what went wrong and who is to blame. We extend First Amendment protection to public employees not only in furtherance of their interest in speaking, but also in furtherance of the public’s interest in obtaining information about matters of public import from those in the best positions to know most about it; or, as the Supreme Court instructs, ‘government employees are often in the best position to know what ails the agencies for which they work.’ Waters v. Churchill, 511 U.S. 661, 674, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994).”
Turning to causation, the third prong, the appeals court focused on whether “Cioffi has presented evidence sufficient to raise a triable issue on causation.”
“On the facts of this case, the lapse of only several months after the letter and several weeks after the press conference between the protected speech and adverse employment action is sufficient to support an allegation of a causal connection strong enough to survive summary judgment,” wrote the court.
Louis J. Cioffi III v. Averill Park Central School District Board of Ed., et al.; 2nd Cir.; Docket No. 04-5593-cv; 2006 U.S. App. LEXIS 8174; 24 I.E.R. Cas. (BNA) 385; 4/6/06
Attorneys of Record: (for plaintiff) Thomas J. Marcelle of Albany and Phillip G. Steck of Cooper Erving & Savage in Albany. (for defendants) Beth A. Bourassa of Whiteman, Osterman & Hanna in Albany.
The Attorneys Speak
(From Beth Bourassa, Counsel for Averill Park CSD)
“Averill Park has a pending petition for certiorari to the United States Supreme Court in this case. After the Second Circuit decided this case, the Supreme Court handed down Garcetti v. Ceballos, 126 S. Ct. 1951, in which the Court held that speech within the scope of a public employee’s official duties is not protected under the First Amendment. We believe that the Second Circuit decision in Cioffi’s case cannot stand, following Garcetti, because to the limited extent that Cioffi’s speech was made for any purpose other than trying to save his own job and shield himself from any blame for a hazing incident, his speech was made within the scope of his official duties as athletic director. We await a decision from the US Supreme Court as to whether our client’s petition for certiorari will be granted, probably sometime in October, 2006.”
