CALABRESI, Circuit Judge:
Plaintiff-Appellant Nancy L. Nagle brought suit under 42 U.S.C. § 1983, alleging that Defendants-Appellees Paul R. Fried, Steven Castar, and the Mamaroneck Union Free School District of New York had retaliated against her for exercising her rights under the First Amendment. The court below (Thomas S. Zilly, Judge) granted summary judgment to Defendants-Appellees, holding that the speech on which Nagle based her claim was not protected under the First Amendment and that the individual defendants had qualified immunity from suit. The court held, alternatively, that summary judgment would have been appropriate if the speech had been protected, because the District would have fired Nagle even in
From 2004 until 2007, Nagle worked as a tenure-track special education teacher at the Chatsworth Avenue School in the Mamaroneck Union Free School District of New York (the "District"). On March 2, 2007, the school's principal, Defendant-Appellee Steven Castar, and the District's assistant superintendent for human resources, Rosemarie Coletti, informed Nagle that the District's superintendent of schools, Defendant-Appellee Paul Fried, had decided not to recommend her for tenure. Castar and Coletti informed Nagle that, therefore, her probationary employment with the District would be terminated at the end of the school year. Nagle filed suit, claiming that Fried's decision not to recommend her for tenure violated her First Amendment rights because it was made in retaliation for two acts that, she argued, were protected by the First Amendment.
The more recent of these acts took place in January 2007, after Nagle received a copy of a teaching observation report of her class written and signed by the Chatsworth Avenue School's assistant principal, Paula Marron. Nagle had declined to sign the report, but the copy she received appeared to bear her signature. Upon receiving the report, Nagle told Marron, Castar, and John Esposito, the president of Nagle's teachers' union, about the seemingly false signature. After Castar informed him of the alleged forgery, Fried called the police, who determined that no crime had been committed. Nevertheless, Nagle and the District separately hired handwriting experts, each of whom concluded that Marron had signed Nagle's name. Thereafter, Fried declined to renew Marron's contract for the following year, and Marron resigned.
The other act on which Nagle based her claim took place during the 2002-2003 school year, while Nagle was a special education teacher in a public school in Henrico County, Virginia. Nagle had reported to her principal in Virginia that she overheard Betty Moore, a teacher in a neighboring classroom, verbally abusing children in her class. Nagle also informed the chair of the Henrico County Early Childhood Special Education Program Department of reports Nagle had gotten from other adults working in the school who had witnessed Moore both verbally and physically abusing children under her care.
Nagle's conduct in Virginia took place approximately four years before Superintendent Fried declined to recommend her for tenure in New York; according to record testimony, however, Castar and Fried only learned of Nagle's conduct in early 2007, shortly before Nagle was informed of Fried's tenure decision. Nagle argues that the temporal proximity between Fried's learning of the reported abuse incident and his decision not to recommend her for tenure gives rise to an inference of retaliation. Appellees contend that Fried had already made his decision regarding Nagle's tenure before he found out about her report of abuse in Virginia; thus, the Virginia report played no role in the employment decision.
Instead, they assert, the tenure decision was based on Nagle's alleged behavior during a December 2006 meeting. Over the course of this meeting, Castar raised his concerns regarding two instances where Nagle allegedly violated school protocols. The first involved Nagle choosing a book to read with her class without first consulting the school psychologist; the second involved Nagle sending a child home from school early without first consulting school administrators. Nagle was so distraught by what she heard that she left the meeting crying.
As an initial matter, the district court held that neither the forgery incident, nor the report of abuse were protected under the First Amendment. With respect to the forgery incident, the court determined that because the incident did not involve a crime and may have furthered some "personal agenda" of Nagle's, it was not a matter of public concern and therefore was not protected by the First Amendment. Nagle v. Fried, Order, No. 07-cv-2860 (TSZ) (S.D.N.Y. March 19, 2010) ("Order") at 19. With regard to the abuse report, the court held that Nagle's conduct was not protected by the First Amendment "because it undisputedly violated reasonable protocols." Id. at 13. The court further opined that, even had Nagle's abuse report been protected at the time it occurred, "due to temporal and geographic remoteness, . . . to the extent it was protected speech when uttered," it "was no longer protected speech when [D]efendants learned of [it] and/or denied her tenure." Id. at 16.
The court then held, in the alternative, that Nagle could not prove causation. Specifically, the court determined that the District had "established, as a matter of law, [that it] would have made the same tenure decision in the absence of [Nagle's] expressive conduct," and that therefore summary judgment would be appropriate even were one or both incidents protected under the First Amendment. Id. at 22.
On the basis of the holdings described above, the district court granted Castar and Fried qualified immunity from Nagle's suit. The court held that, because Nagle's "expressive conduct did not `clearly' constitute protected speech," a reasonable official in the position of Castar or Fried "would not have known that considering such conduct in reaching an adverse employment decision" might violate Nagle's rights. Id.
We review a grant of summary judgment de novo to determine "whether genuine disputes over material fact exist . . .
"To survive a motion for summary judgment on a First Amendment retaliation claim" in the public employment context, "the plaintiff must present evidence which shows `[1] that the speech at issue was protected, [2] that he suffered an adverse employment action, and [3] that there was a causal connection between the protected speech and the adverse employment action.'" Cotarelo v. Vill. of Sleepy Hollow Police Dep't, 460 F.3d 247, 251 (2d Cir. 2006) (quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir.2000)).
In the present case, Appellees do not dispute that the decisions not to recommend Nagle for tenure and to recommend the termination of her probationary employment were adverse employment actions. We must therefore determine whether Nagle's speech was protected under the First Amendment and, if so, whether the evidence presented was sufficient to give rise to an inference of causality. We then examine the record to determine whether Appellees have shown—as a matter of law—that they would have taken the same action in the absence of Nagle's speech, thereby rebutting the requisite causality. Finally, we address whether Castar and Fried are entitled to qualified immunity from Nagle's suit and whether the District may be subject to municipal liability.
"`[W]hile the government enjoys significantly greater latitude when it acts in its capacity as employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from punishing its employees in retaliation for the content of their protected speech.'" Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir.2006) (quoting Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001)). Recognizing both that public employees do not "relinquish the First Amendment rights they would otherwise enjoy as citizens" simply because of their public employment, Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and that "government offices could not function if every employment decision became a constitutional matter," Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), courts try "to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. In Pickering, the Supreme Court held that "a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." Id. at 574, 88 S.Ct. 1731. In the circumstances of that case, "the interest of the school administration in limiting teachers' opportunities to contribute to public debate [was] not significantly greater than its interest in limiting a similar contribution by any member of the general public." Id. at 573, 88 S.Ct. 1731.
As Pickering indicated, for speech to be protected by the First Amendment, it must be "on a matter of public concern," which includes speech "relating to any matter of political, social, or other concern to the community." Connick, 461 U.S. at 146, 103 S.Ct. 1684. In contrast, when a public employee "speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest," courts should not "review the wisdom of a personnel decision taken" in response. Id. at 147, 103 S.Ct. 1684. This is because the First Amendment "does not require a grant of immunity for employee grievances not afforded. . . to those who do not work for the State"; it merely "ensure[s] that citizens are not deprived of fundamental rights by virtue of working for the government." Id. To determine "[w]hether an employee's speech addresses a matter of public concern," courts look to "the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48, 103 S.Ct. 1684.
More recently, the Supreme Court has held that First Amendment protection applies only when the public employee speaks as a citizen and not in her role as employee. Statements made pursuant to official duties are not protected. Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over [speech] the employer itself has commissioned or created." Id. at 421-22, 126 S.Ct. 1951.
Our Court has explained that, even if a public employee's speech "is not required by, or included in, [his] job description, or [made] in response to a request by the employer," he speaks as an employee and not as a citizen if the speech is "`part-and-parcel
In applying these principles to Nagle's complaints of forgery, we need go no further than the public-concern prong of analysis, because, like the district court, we conclude that Nagle fails, as a matter of law, to satisfy this requirement. As to Nagle's report of abuse, defendants conceded in the district court that these statements would have enjoyed First Amendment protection when uttered had Nagle not violated school protocols, and they do not argue otherwise here. Thus, we need not pursue the question of whether the reports could claim First Amendment protection, except insofar as the district court ruled that First Amendment protection for these statements was lost because of (1) non-compliance with employer protocols, and (2) the passage of time and distance between their utterance in Virginia and the complained-of adverse employment action in New York. After analyzing the relevant considerations, we determine that, for the reasons stated below, the New York forgery accusation was not protected speech, but that the Virginia abuse report is.
Nagle argues that any personal interest she may have had in speaking about the forgery incident does not do away with whatever First Amendment protection the speech is entitled to. We agree that the primary question for First Amendment purposes is whether the matter is of public concern, not whether the speech was also made to serve some private interest. Cf. Reuland, 460 F.3d at 415 (holding that the absence of a motivating "desire to address a matter of public concern" was "not dispositive as to whether [the] speech addressed a matter of public concern"). Nagle further argues that the fact that the forgery was not considered criminal activity by the police does not by itself negate First Amendment protection. We, similarly, do not "doubt that non-criminal activities may also be . . . matters of public concern." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 164 (2d Cir.2006).
Accordingly, we believe that the district court erred in its conclusion that because Nagle's speech about the forgery "was not focused on the public welfare" but was instead "advanc[ing] some . . . personal agenda," that speech necessarily was not protected. Order at 19. The court below also erred in stating that because "no authority. . . would treat the events at issue as a crime," the speech could not be of public concern. Id. at 16. The district court's reasoning contradicts Reuland's holding that motivation is not dispositive and Cioffi's conclusion that matters of public concern need not involve crimes.
Nevertheless, we conclude that the forgery incident did not implicate a matter of public concern. No authority supports Nagle's argument that reporting an alleged crime always implicates matters of public concern. The forgery of Nagle's signature, even if such conduct were criminal, had no practical significance to the general public. As Nagle well understood, her signature did not indicate agreement
Defendants conceded below that Nagle's report of abuse in Virginia raised a matter of public concern, but the district court concluded that the report "was not protected when uttered because it undisputedly violated reasonable protocols." Order at 13. We doubt that this question could be decided as a matter of law on the present record, which indicates that Nagle may well have followed school procedures by reporting to her principal the verbal abuse that she had overheard. Some time later—after Moore had already left Nagle's school—Nagle informed both Child Protective Services and the state police of what she had personally overheard and what others had told her. It is not clear from the record that Nagle's conduct in these circumstances violated any protocols.
This lack of factual clarity does not matter, because the district court's reasoning finds no support in Second Circuit or Supreme Court case law, which has never conditioned First Amendment protection on adherence to employer protocols. An employee's failure to follow protocols may give rise to an alternative, non-retaliatory ground for an adverse employment action. And as such, it could be the basis of a successful causation defense. That possibility, which is discussed infra, is very different from the lower court's holding that failure to abide by rules deprived the speech of First Amendment protections. Here, as it did also with respect to "obsolescence," see infra subsection B.2.b., the district court confused a question of causation with the very different question of whether speech is protected.
In sum, neither the record nor the law permitted the district court to find that Nagle's Virginia speech lost its First Amendment protection because of protocol violations. Defendants conceded below that Nagle's report of abuse would have been protected when uttered but for the alleged protocol violation. We therefore need only consider defendants' remaining argument that the report lost its First Amendment protection due to obsolescence.
The district court held that Nagle's Virginia speech presented a "`transferred speech' scenario." Order at 10.
The district court appears to have confused the first prong of the First Amendment inquiry, which asks whether the speech at issue was protected, with the last, which examines whether the protected speech caused the adverse employment action. Whether speech pertained to a matter of public concern and whether it was uttered in the speaker's capacity as a private person are not facts that change over time. A teacher's expressive conduct made in the course of working for a candidate's political campaign, for instance, would constitute protected speech even if the candidate lost and his candidacy therefore ceased being a matter of immediate public concern. And the speech would remain protected if the teacher moved to an area where the candidate had not been on the ballot. The First Amendment protects precisely such public participation, both at the time it occurs and ever after.
What can grow stale, over time and distance, is not an expressive act's First Amendment protection but its relevance to the plaintiff's employers. "To establish causation, a plaintiff must show that the protected speech `was a substantial motivating factor in the adverse employment action.'" Cioffi, 444 F.3d at 167 (quoting Morris, 196 F.3d at 110). It is quite plausible that an employer would simply have no interest, or lose any interest it once had, in an employee's long-ago protected speech. Speech that did not matter to an employer would likely not be a motivating factor in an employment action. And we may assume that this is what the district court meant when it made the factual determination that Nagle's actions would have been "old news" and of "limited interest" to Appellees. Order at 16. But that says nothing about whether the speech was protected. The inquiry into causation is legally, as well as logically, distinct from the question of whether the speech was protected to begin with and must be kept separate from that preliminary question.
The district court concluded that Nagle's speech could not have caused the adverse employment action because Fried had already decided not to recommend her for tenure before he learned of her Virginia speech: "[a]lthough Superintendent Fried
First, it is established that an adverse employment action occurs on the date that a decision was formally reached. Cioffi, 444 F.3d at 163 (holding that an adverse employment action dated not from a closed meeting at which an "informal consensus" regarding the matter was reached, but rather from an official meeting with a formal vote and a publicly declared outcome). Events leading up to a formal decision will, in many situations, be relevant to the analysis of causation. But an employer cannot insulate itself from liability at the summary judgment stage simply by asserting that an adverse employment decision had in fact already been made, without being memorialized or conveyed to anyone, before the employer learned of the protected conduct.
Second, and as important, Fried did not testify that a decision had already been made, or even that a consensus had been reached, not to retain Nagle when the information about the Virginia events reached him in early 2007. All Fried said was that he was leaning that way.
A "plaintiff can . . . establish a causal connection to support a . . . retaliation claim by `showing that the protected activity was closely followed in time by the adverse [employment] action.'" Gorman-Bakos, 252 F.3d at 554 (alteration in original) (quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.1996)); see also Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.2004) (noting that causality can be shown through a "close temporal proximity between [the employer's] awareness [of protected conduct] and the adverse action" (internal quotation marks and alteration omitted)); Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir.1994) (per curiam) ("One way of showing causation is by establishing that the employer's knowledge
Fried testified that he became aware of Nagle's report of abuse in Virginia in "late January or February" of 2007, that is, at most six weeks before the adverse employment action on March 2, 2007. While we have not "drawn a bright line" defining the maximum time period that can give rise to an inference of causation, Gorman-Bakos, 252 F.3d at 554, six weeks fits comfortably within any line we might draw. It follows that Nagle's showing of temporal proximity suffices to make out a prima facie claim of retaliation under the First Amendment.
Appellees counter that, to the extent Nagle's Virginia speech influenced them, it was not the content of that speech that mattered but what they took to be Nagle's violation of school rules in reporting the abuse to the police rather than to her principal. But on the question of whether protected speech played a significant part of the decision to dismiss Nagle, this "counter," if anything, is evidence against Appellees' position. Just what Appellees believed about Nagle's conduct in Virginia, and how, if at all, those beliefs influenced their actions may well be issues critical to resolving this case.
Appellees characterize Castar and Fried's understanding of Nagle's Virginia speech as "mirror[ing] Castar's experience with [Nagle's] failing to follow . . . District[] protocol on two occasions" in New York, a claim they rest on two specific events. Appellees' Br. 29. The factual bases Appellees present, however, are insufficient to dispose of the question at summary judgment. On one cited occasion, Nagle chose a particular book to read with her class without first consulting the school psychologist, Barbara Merling. Beyond stating that Merling "believed that [Nagle] should have consulted with her," however, Appellees have provided no evidence that school customs or protocols required such a consultation. On the second occasion, Nagle did not confer with administrative staff before sending a child home from school early. But Principal Castar himself testified that Nagle's decision to send a child home early without speaking to administrators did not violate any existing rules, protocols, or customs at the school. While, with further factual development, a jury could conceivably conclude that these events caused Appellees in good faith to question Nagle's judgment and her amenability to supervision, Appellees have not presented sufficient evidence to dispose of this question at summary judgment.
Because protected speech could not substantially cause an adverse action if the employer would have taken that action in any event, a defendant can rebut a prima facie showing of retaliation by demonstrating "by a preponderance of the evidence that it would have taken the same adverse employment action `even in the absence of the protected conduct.'" Morris, 196 F.3d at 110(quoting Mount
Appellees specifically point to Cosgrove v. Federal Home Loan Bank of New York, Nos. 90-civ-6455 (RPP), 92-civ-4225 (RPP), 1999 WL 163218 (S.D.N.Y. Mar. 23, 1999), as "directly analogous" to the present case. In Cosgrove, a bank examiner claimed her employer had impermissibly fired her for reporting to the FBI improper lending practices that the examiner had discovered in an investigation. The plaintiff in that case had received numerous indications (several memoranda, evaluations, and warnings per year) that her work failed to meet her employer's standards and that her interpersonal skills were interfering with her job performance. Id. at *12-*14. The district court concluded in Cosgrove that, although the plaintiff's FBI report may have constituted protected speech, the plentiful documentation of her ongoing problems showed as a matter of law that her employer would have fired her irrespective of the FBI report. Id. at *15.
Unlike Cosgrove, however, Appellees themselves have characterized evaluations of Nagle during her probationary period as "ranging from fair to positive." Fried testified that official "in-classroom observations [of Nagle] were positive." Also in contrast to the plaintiff in Cosgrove, Nagle had not received years of warnings about problems with her interpersonal skills. On the contrary, Castar testified that, besides a complaint from the school psychologist regarding Nagle's choice of a particular book to read with her class, "[t]here weren't complaints" about Nagle. He further testified that, as the school implemented a new teaching model that integrated special education students into the mainstream student population, "other teachers told [him] that they would not teach in this program unless [Nagle] was the special ed teacher there." Defendants have, in sum, provided no evidence of ongoing problems with Nagle's work or work relationships of the sort documented in Cosgrove.
According to Fried's testimony, his decision not to recommend Nagle for tenure rested not on an accumulation of negative evaluations and problems but on what he heard from third parties about Nagle's behavior at a single meeting in December 2006. At that meeting, Nagle had intimated that she knew she would not be granted tenure and had become so upset that she cried and left the room for a while to calm down. At one point—and in tension with some of the other testimony regarding the effect of the Virginia events—Fried testified that he "came to the conclusion that [Nagle] should not receive tenure because of her behavior at the meeting." Fried did not himself attend this meeting but learned of it from conversations with Castar and Esposito.
Viewing this record in the light most favorable to Nagle, we cannot find as a matter of law that Fried would have made his decision irrespective of learning of Nagle's report of abuse in Virginia. There was no pattern of bad evaluations, complaints, and warnings, as there was in Cosgrove. There was no specific instance of misconduct. All this is in direct contrast with most of the cases Appellees cite to support their position. Moreover, there is no documentation of Fried's decision-making process prior to learning of Nagle's Virginia speech. While it is certainly possible that an employee's behavior at a single
Nagle's successful presentation of a prima facie claim and Appellees' proffer of a rebuttal that is subject to credibility questions do not, however, fully resolve this appeal. We must also determine whether each of the particular Appellees may be held liable for the acts alleged. Specifically, we must examine (1) whether Castar and Fried are entitled to qualified immunity from Nagle's suit, and (2) whether the District is subject to municipal liability in the circumstances of this case.
Although the statutory text of § 1983 provides for no immunities, it has been read "`in harmony with general principles of tort immunities'" to provide qualified immunity for most government officials.
In the present case, the district court granted Fried and Castar immunity. Having determined that neither instance of Nagle's expressive conduct was protected, and certainly was not "clearly" so, the court necessarily concluded that a reasonable official would not have been on notice
Qualified immunity depends on whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the [official's] conduct violated a . . . right," and, if so, whether that right was "clearly established" at the time of the events at issue. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. As indicated previously, we have no difficulty in concluding that, taking Nagle's allegations as true and resolving all ambiguities and drawing all inferences in her favor, the facts she alleges, if proved, constituted a violation of her right not to experience an adverse employment action in retaliation for speaking as a private person on a matter of public concern. We therefore turn to the other prong of the test.
"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. This standard requires "the level of generality at which the relevant `legal rule' is . . . identified" to strike the appropriate "balance . . . between the interests in vindication of [private persons'] constitutional rights and in public officials' effective performance of their duties." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (internal quotation marks omitted). That level of generality must allow officials "`reasonably [to] anticipate when their conduct may give rise to liability.'" Id. at 646, 107 S.Ct. 3034 (alteration in original) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). Describing the right at issue overly broadly eviscerates the protections of qualified immunity; describing it too narrowly negates the possibility of redress. The Supreme Court has, therefore, required the rights at issue in such cases to be sufficiently "particularized" to be "relevant" to the inquiry: "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 640, 107 S.Ct. 3034.
At the same time, the standard must not be so specific that qualified immunity could be overcome only if "the very action in question has previously been held unlawful." Id. Rather, "the unlawfulness" of the alleged action "must be apparent" to a reasonable official "in the light of pre-existing law." Id.; see also Saucier, 533 U.S. at 202, 121 S.Ct. 2151 ("If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.").
The "subjective good faith of government officials" plays no part in the inquiry. Harlow, 457 U.S. at 816, 102 S.Ct. 2727. Our "inquiry is confined to the objectively ascertainable question whether a reasonably well-trained [official] would have known that [his conduct] was illegal." Malley, 475 U.S. at 345, 106 S.Ct. 1092 (internal quotation marks omitted). "Implicit in the idea that officials have some immunity . . . is a recognition that they may err" and a determination that "it is better to risk some error . . . than not to. . . act at all." Scheuer v. Rhodes, 416 U.S. 232, 242, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated by Harlow, 457 U.S. 800, 102 S.Ct. 2727 (1982). The objective inquiry allows room for error by guaranteeing officials "immunity for reasonable mistakes as to the legality of their actions," Saucier,
In the present case, Appellees do not argue that Nagle did not have a clearly established right not to suffer adverse employment actions in retaliation for her protected speech. Rather, they argue that it is not clearly established that speech protected at one time "remains protected when discovered years later" in a "geographically remote community."
It is true that no case in our Circuit has specifically held that First Amendment protection does not grow weaker over time and space. But as the Supreme Court has explained, "the very action in question" need not have been the subject of a holding in order for a right to be clearly established. Anderson, 483 U.S. at 640, 107 S.Ct. 3034.
Fried and Castar knew or should have known that retaliation for protected speech would violate an employee's First Amendment rights, and they had no reason to think that speech protected in Virginia in 2004 would not be protected in New York in 2007. We therefore hold that, based on the record on appeal, neither Fried nor Castar are subject to qualified immunity from Nagle's suit.
The parties did not brief, and the district court did not determine, the availability of a § 1983 suit against the District under the circumstances of this case. Municipal entities, including school districts, are "persons" within the meaning of § 1983 and therefore subject to suit under that provision. Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 663, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 128 (2d Cir.2004). But municipalities are not liable "on a respondeat superior theory," simply because an employee committed a tort. Monell, 436 U.S. at 691, 98 S.Ct. 2018. Section 1983 "distinguish[es] acts of the municipality from acts of employees of the municipality," and imposes liability only for "action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).
The municipality is responsible if a violation of rights resulted from the "government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694, 98 S.Ct. 2018. When "`an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy.'" Clue v. Johnson, 179 F.3d 57, 62 (2d Cir.1999) (quoting Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983)). Because of this, "municipal liability may be imposed for a single decision by municipal policymakers." Pembaur, 475 U.S. at 480, 106 S.Ct. 1292. "[W]hether an official had final policymaking authority is a question of state law." Id. at 483, 106 S.Ct. 1292 (plurality opinion); see also Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).
Under New York law, boards of education or trustees of common school districts appoint teachers "upon the recommendation of the superintendent of schools, for a probationary period of three years." N.Y. Educ. Law § 3012(1)(a). This probationary period "may be discontinued at any time . . . on the recommendation of the superintendent of schools, by a majority vote of the board of education or the trustees of a common school district." Id. At the end of the probationary term, "the superintendent of schools shall make a written report to the board of education" recommending the grant or denial of tenure. Id. § 3012(2). The board or the trustees "shall review all recommendations not to appoint a person on tenure." Id. § 3031(a).
The District is clearly a final policymaker with respect to a teacher's tenure
Additionally, the record suggests that, although Fried technically recommended candidates on whom the District board voted, that process was treated largely as a formality. Accordingly, a factfinder could decide that a person whom Fried did not recommend for tenure was effectively denied tenure by that act. Fried himself testified that he "had made the decision that [Nagle] would not receive tenure." A jury could conclude from this and similar testimony that the District customarily accepted the superintendent's recommendations against tenure.
Some Circuits have held that "an employer cannot shield itself from liability. . . by using a purportedly independent person or committee as the decisionmaker where th[at] decisionmaker merely serves as the conduit, vehicle, or rubber stamp by which another achieves his or her unlawful design." Dedmon v. Staley, 315 F.3d 948, 949 n. 2 (8th Cir.2003). Under this so-called "cat's paw" theory,
Moreover, several Circuits have either held or assumed that cat's paw liability would be available under § 1983. See, e.g., Campion, Barrow & Assocs., Inc. v. City of Springfield, Ill., 559 F.3d 765, 771 (7th Cir.2009) ("[E]vidence could support a finding that X (the [City] Council) relied on Y's (the Mayor's or [an alderman's]) intent, making it permissible to base municipal liability on Y's discriminatory animus."); Arendale v. City of Memphis, 519 F.3d 587, 604 n. 13 (6th Cir.2008) ("When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the
To date, our Circuit has neither accepted nor rejected the cat's paw approach. Since the matter has not been briefed to us, we deem it advisable to remand the question of the District's possible liability to the district court for its decision in the first instance.
Because Nagle has made a prima facie showing that retaliation in violation of the First Amendment caused her to be denied tenure; because Appellees' rebuttal is subject to credibility questions that cannot be resolved as a matter of law; and because Fried and Castar are not, at this stage of the proceedings, entitled to qualified immunity, we VACATE the district court's grant of summary judgment and REMAND for further proceedings in accordance with this opinion.