UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

DEBBIE ALMONTASER, Plaintiff-Appellant,

-against-

NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, individually and in his official capacity as Chancellor of the New York City Department of Education; ROSEMARY STUART, individually and in her official capacity as Community Superintendent of District 15 and Hiring Manager; CITY OF NEW YORK; MICHAEL BLOOMBERG, individually and in his official capacity as Mayor of the City of New York; DENNIS WALCOTT, individually and in his official capacity as Deputy Mayor for Education and Community Development,

Defendants-Appellees.

APPELLEES’ BRIEF

PRELIMINARY STATEMENT

Plaintiff-appellant Debbie Almontaser (“appellant”) appeals

from the denial of a preliminary injunction to enjoin defendants the New

York City Department of Education (“DOE”), the City of New York

(“City”), Michael Bloomberg, Mayor of the City of New York, Dennis

Walcott, Deputy Mayor for Education and Community Development, Joel I.

Klein, the Chancellor of the City School District of the City of New York,

and Rosemary Stuart, the Superintendent of Community School District 15

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(“appellees”) from proceeding with the selection of a permanent principal

for the Khalil Gibran International Academy. Appellant also sought to

substitute a disinterested person in the place of the Chancellor and the

Community Superintendent in the selection process pursuant to C-30

regulations of the Chancellor and New York State Education Law.

In a decision dated December 5, 2007, the United States

District Court for the Southern District of New York (Sidney H. Stein, J.),

denied appellant’s application for a preliminary injunction. Following the

denial of her motion for preliminary injunction, on December 6, 2007,

appellant filed a notice of appeal in the District Court and, thereafter, sought

a stay and an expedited appeal of the decision denying preliminary

injunction. On December 7, 2007, the application for a stay was denied, and

the application for an expedited appeal was granted by this Court.

JURISDICTIONAL STATEMENT

Appellant seeks review of an order denying’s appellant’s

motion for a preliminary injunction. This Court thus has jurisdiction of the

appeal under 28 U.S.C. § 1292(a)(1) and, since appellant filed a notice of

appeal from the decision and order, the appeal is timely pursuant to Fed. R.

App. P. 4(a).

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ISSUE PRESENTED

Where the Supreme Court has determined under Garcetti that

when public employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment purposes,

whether the District Court, upon determining that appellant was speaking in

her official job capacity, correctly determined that appellant cannot

demonstrate a clear likelihood of success on the merits of her appeal and

correctly denied appellant’s motion for a preliminary injunction?

STATEMENT OF FACTS

Appellant is currently employed by the New York City

Department of Education (“DOE”) as Director of Special Projects in the

DOE’s Office of School and Youth Development (18, 137-138).1 She has

worked for the Department of Education in various capacities since 1991

(137).

In 2005, appellant, who was working as a coordinator of

external programs for District 15, was approached by New Visions for

Public Schools (“New Visions”), a not-for-profit organization that works

with DOE to set up new schools (22, 138). New Visions was considering

the possibility of a school which would focus on instruction in both Hebrew

and Arabic, and under appellant’s guidance New Visions eventually

1 Unless otherwise indicated, numbers in parentheses refer to pages in the Special Appendix.

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modified the proposal such that the school’s regents-based curriculum would

include Arabic language and cultural studies (11, 22).

DOE announced its approval of New Visions’ proposal on

February 12, 2007, and named appellant as the project director for the

school, which was to be named the Khalil Gibran International Academy

(“KGIA”) (7, 12, 23). Upon becoming the project director for KGIA,

appellant began setting up KGIA, including developing a curriculum,

recruiting teachers, staff and students, drafting a budget, and meeting with

community groups, with the objective of beginning instruction at KGIA in

September 2007.

On or about July 2, 2007, appellant was named interim acting

principal of KGIA (7, 12). When she was named interim acting principal,

appellant’s salary increased from $70,000 to $120,000 per year (144). At

her deposition, appellant acknowledged that there were no differences in her

job duties between the two positions (144-145). She also acknowledged that

she could have been removed from that position without charges and a

hearing, and that a permanent principal would be selected through the

Chancellor’s Regulation C-30 process (145).

Appellant acknowledged that KGIA received considerable

media attention, both positive and negative, throughout the planning process

of the school (12, 23, 89). Appellant testified that she viewed responding to

press inquiries as part of her job as acting-interim principal of KGIA (203).

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As a part of her job, appellant gave several interviews to the media,

including interviews with: Elissa Gootman of the New York Times, which

resulted in a February 13, 2007 article quoting appellant (306); Sarah

Garlend of the New York Sun in March 2007 (140); Nahal Toosi of the

Associated Press, which resulted in an April 16, 2007 Associated Press story

quoting appellant (308); Julie Bosman of the New York Times, which

resulted in a May 4, 2007 article quoting appellant (310); Jeanine Ramirez of

cable television news station NY1, which resulted in an on-air interview and

an online article quoting appellant (313); and Dana Rubinstein of The

Brooklyn Paper, which resulted in a May 19, 2007 article in that paper

quoting appellant (315). Appellant was also quoted in an article appearing

in the New York Post on May 5, 2007 (314), and she was interviewed by the

New York Daily News Editorial Board in May 2007 (144).

Appellant always referred press inquiries to the DOE press

office, and that office screened and approved the media outlets that wanted

to interview her (327). She testified at her deposition that every interview

listed above, except perhaps the first and sixth interviews - which appellant

claims not to recall - she spoke to either Melody Meyer or David Cantor of

the DOE press office to coordinate the interview (140). On most occasions

either Mr. Cantor or Ms. Meyer would prepare her for, or provide her with

an overview of, the interview. In addition, either Mr. Cantor or Ms. Meyer

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usually would be present or on the telephone line while the interview was

being conducted (140-141). Appellant additionally testified

“So at that time and shortly after the February 12th interview, there was a strategizing press meeting with New Visions and the Department of Education where we all came to an agreement that the Department of Education would screen all media requests and make the decision whether who should be spoken to and who should do the interview. And so at that point, one of the things that was also discussed was that all interviews would have a press person on the phone” (140).

Appellant’s contact with the news media was not limited to

interviews. She also submitted an op-ed piece which appeared in the New

York Daily News on May 20, 2007 (318). As with the interviews, the

submission of the op-ed piece was coordinated with the DOE press office,

and before the piece was submitted to the Daily News, Mr. Cantor edited it

to make it more succinct and to meet space limitations.

In August 2007, an organization called Stop the Madrassa

Coalition issued a press release which alleged that an organization called

Arab Women Active in the Arts and Media (“AWAAM”) had created T-

shirts with the words “Intifada NYC”, and further alleged that appellant had

a connection to AWAAM (147-148). DOE received media inquiries

regarding that press release, and the DOE press office contacted appellant on

August 3, 2007 to advise her that the New York Post wanted an interview

(24-25, 147).

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On August 2, 2007, the day before the DOE press office

contacted appellant about the New York Post interview, Community

Superintendent Stuart sent an e-mail to several recipients, noting that:

I met with [appellant] and her team of partners yesterday to discuss issues around the opening of the school. There were several concerns that I want you to know about.

It is highly likely that there will be a large media presence on the first day of school, and there is the possibility of demonstrations. The school has already had a great deal of press, not all of it positive, and we want to make sure the students and their families are not made to feel uncomfortable as they arrive for school. Melody Meyer, from the press office was at the meeting yesterday. She will handle this issue as far as the press is concerned. I think we need to be prepared to handle it at the school level (223).

Appellant was copied on that e-mail (223).

Appellant acknowledged that she received a call from the DOE

press office concerning the Post’s desire to interview her, and that they told

her what the subject matter of the interview would be (147, 191). A reporter

for the New York Post sent the DOE press office a list of five questions

concerning the Academy that he wanted appellant to answer (24, 40-41,

147). One of the questions was “Is it appropriate that [appellant as principal

of KGIA] be associated with a group that sells Intifada NYC T-shirts? Why

or why not?” (40, 319). The other four questions involved other aspects of

the Academy, its students, and the Academy’s board of advisors (40-41,

319-321).

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The DOE press office forwarded the list of five questions to

appellant (192). On August 5, 2007, appellant drafted written responses to

the questions and forwarded those responses to the DOE press office to be

reviewed (192, 319). Appellant then had two conversations with Ms. Meyer

and one with Mr. Cantor in preparation for the interview with the Post

reporter. Ms. Meyer and Mr. Cantor decided that there was insufficient time

to finalize a written statement, and that it was in KGIA’s best interest that

appellant be interviewed by the Post reporter (25, 192).

Appellant acknowledged that she was prepped for the interview

by Mr. Cantor and that she was expressly told by Mr. Cantor not to talk

about the T-shirts during the interview (45, 148, 192, 197). Appellant

testified that she if she were approached personally she would have refused

to give this interview, and that she “had no choice and that [she was]

expected to participate in the Post interview ” (253).

Appellant was telephonically interviewed by the New York

Post on August 5, 2007, which resulted in an article appearing in that paper

on August 6, 2007 (12-13). The Post reporter interviewed appellant for

approximately ten minutes, with Ms. Meyer also on the telephone line (25,

192-193). During the interview, appellant told the reporter that she had

nothing to do with AWAAM and that AWAAM had no connection to

KGIA. The reporter asked appellant about the meaning of the word

“intifada” and appellant answered that the root meaning of the word is to

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“shake off.” Appellant further noted that as the word is associated with the

Palestinian-Israeli conflict, it has a negative connotation and is associated

with violence. Appellant then told the reporter that she would not affiliate

herself with an organization that condones or promotes violence (194).

The August 6, 2007 New York Post article appeared under the

headline “City Principal Is ‘Revolting’” and the article indicated that

appellant downplayed the significance of the T-shirts (13, 43). The article

also attributed the following statements to appellant as direct quotes

“The word [intifada] means shaking off. That is the root word if you look it up in Arabic. I understand it is developing a negative connotation due to the uprising in the Palestinian-Israeli areas. I don’t believe the intention is to have any of that kind of [violence] in New York City. I think it’s pretty much an opportunity for girls to express that they are part of New York City society . . . and shaking off oppression” (13, 26, 43).

Appellant acknowledged that the language quoted in the article

was accurate except that appellant asserts that the words “and shaking off

oppression,” which appeared after the ellipsis, were part of appellant’s

previous explanation of the historic meaning of “intifada.” Appellant

testified that Melody Meyer of the DOE press office was on the telephone

for the duration of the interview and later called appellant to tell here that

she had done a good job (25).

Appellant also testified that David Cantor called her on the day

that the New York Post article ran, and criticized her for defending or

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attempting to explain the T-shirts, and said that he had told her that she

should not discuss them (27, 197). Mr. Cantor spoke again to appellant

sometime later, and told her that he had drafted an apology for appellant to

release to the press (13, 27, 197). Appellant proposed changes to the

statement which she felt inaccurately suggested that she had been in the

wrong, but DOE released the statement of apology as it had been drafted by

Mr. Cantor (13, 27, 197-198).

Thereafter, the New York Post and the New York Sun

published stories and letters to the editor which were critical of appellant’s

remarks (27). On August 9, 2007, appellant met with two representatives of

New Visions, and was advised by those representatives that KGIA could not

continue with appellant as the principal, and that she should resign (27-28,

149, 201).

Appellant unsuccessfully attempted to contact Chancellor

Klein, who was unavailable, and appellant instead met twice with Deputy

Mayor Dennis Walcott (13, 28, 149-151, 201-204). Appellant testified that

Mr. Walcott thanked appellant for deciding to resign and advised her that

she would be given an assistant principal position in another school (99,

151). Appellant viewed that as a demotion and objected, and claims that Mr.

Walcott indicated that he would speak to DOE about finding her a

satisfactory position (151-152, 204-205).

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Appellant testified that Mr. Walcott asked her to submit her

letter of resignation by 8:00 a.m. the following morning, in order for Mayor

Bloomberg to discuss the matter during his radio broadcast later that day

(13, 99, 153, 204-205). Following the second meeting with Mr. Walcott,

appellant met Community Superintendent Rosemary Stuart for dinner, and

Ms. Stuart advised appellant that she should do what was best for the school

(97-98, 100, 153). Thereafter, appellant went to the home of a friend and

drafted a letter of resignation (154). The letter of resignation contained,

inter alia, the following language

“The intolerant and hateful tone [of the attacks] has come to frighten some of the parents and incoming students. I am growing increasingly concerned that these few outsiders will disrupt the community of learning when the academy opens its doors on September 4th. Therefore, I have decided to step aside to give the academy and its dedicated staff a full opportunity to flourish without these unwarranted attacks” (46).

Appellant faxed her letter of resignation to DOE on August 10,

2007 (14, 28, 207). Since that time, appellant has been assigned to work at

DOE headquarters at the office of School and Youth Development (14). She

continues to receive a salary of $120,000, which was the salary she received

while she was interim acting principal of KGIA (28).

The Chancellor’s C-30 regulations govern the process of

selection, assignment, and appointment of principals and assistant principals

(7, 225). The regulations include a list of selection criteria, and pursuant to

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the current C-30 process, the DOE Office of School Leadership, also known

as the Talent Office, performs an initial screening of applicants who have

applied to an open position on the DOE’s website (273).

The Office of School Leadership selects candidates who meet

certain objective criteria, including possession of the appropriate licenses,

and makes those applications available to the Community Superintendent

(105). The Office of School Leadership additionally submits a report to the

Community Superintendent (7, 106), which assigns a numerical score to the

applicant’s essay, rates the resume and recommends or does not recommend

advancing the applicant to the next stage (273). The report also contains

comments from the Office of School Leadership.

The Community Superintendent may then select the candidates

to proceed to a Level I committee, consisting of teachers, parents, and union

members, which interviews and rates the candidates. The candidates then

may proceed to Level II, where the Community Superintendent considers the

Level I evaluations and may interview the candidates prior to making an

appointment (230).

Pursuant to New York State Education Law Section 2590-

f(1)(e), the Community Superintendent has the authority and duty “to

appoint or reject the principal candidates screened by screening committees

in accordance with procedures and criteria prescribed by chancellor’s

regulations.” Section 2590-i(2)(c) provides that “a candidate approved by a

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community superintendent may nonetheless, before assuming the position,

be rejected by the chancellor for cause.”

Consequently, the Community Superintendent and the

Chancellor have statutory authority to select the principal. Appellant applied

for the position of permanent principal of KGIA through the DOE website

on October 16th (210-211). On October 18th, the New York Times

published a story under the headline “Principal Won’t Be Rehired” (47).

The story included the following line: “David Cantor, a spokesman for

Schools Chancellor Joel I. Klein, said yesterday that it was clear Ms.

Almontaser, who remains an employee of the Education Department, would

not be placed as principal at the school” (30, 47).

In late October, Community Superintendent Stuart received, on

DOE’s open-hire website system, twenty-two eligible applicants for the

position of principal at KGIA from the Office of School Leadership (110).

Appellant’s application was included among the twenty-two, but the

notation on it was “not recommended” (276).

Ms. Stuart then reviewed the applications that she had received

from the Office of School Leadership, and after reviewing appellant’s

application, Ms. Stuart discussed it with Alice Young of New Visions (111).

She conveyed to Ms. Young her concern that appellant’s attention would be

diverted away from KGIA, because she would have to deal with media

attention, safety, and security concerns and with putting together a new

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school and circumstances that were complicated. Ms. Stuart testified that

she

“felt at the time . . . that I wanted a leader for the school who would be focused really closely, as much as possible, on the instruction in the building, developing the program, focusing on the students. And I believed that [appellant’s] focus, although she would certainly be concerned with those things and those things would be very important to her, that there would be other factors that would divert her attention and divert the energy of everyone surrounding the school, everyone supporting the school . . . The same kinds of attention that she had been getting prior to school opening around her resignation would still be in play . . . if she were appointed” (119).

Ms. Stuart also testified that the reasons appellant put forward

in her letter of resignation were valid at the time and remained valid (114),

and that the circumstances that surrounded the resignation such as

“unpleasant media attention” would be ongoing if appellant were appointed

as permanent principal (119, 130). Ms. Stuart had received calls from

concerned parents in August, which was also a factor in her evaluating of

appellant’s application. Ms. Stuart also noted that appellant lacked

extensive school-level administrative experience” (120). And Ms. Young

agreed with that assessment (118-119).

Based on Ms. Stuart’s review of the applications, the Office of

School Leadership reports and information obtained from references of the

applicants, Stuart selected four individuals to advance to the Level I

committee. Appellant was not included among the four. Ms. Stuart testified

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that no one from the Department of Education or the chancellor’s office told

her that she should not advance Almontaser to the Level I committee and

that the decision was her own (119-120, 332).

Thereafter, appellant brought the instant action pursuant to 42

U.S.C. §1983 and New York law, asserting four federal claims and three

state law claims (17-36). Appellant’s federal claims are: a First Amendment

claim that defendants DOE, the City, Mayor Bloomberg, Chancellor Klein

and Deputy Mayor Walcott violated appellant’s right to free speech by

allegedly forcing her to resign on August 10, 2007 as interim-acting

principal of KGIA, allegedly in retaliation for statements she made to a

reporter for the New York Post which were published in the Post on August

6, 2007; a First Amendment claim that all of the defendants violated

appellant’s right to free speech by not selecting appellant to be interviewed

for the position of principal at KGIA, also in alleged retaliation for

appellant’s statements to the Post reporter that were published in the Post on

August 6, 2007; a claim under the Fourteenth Amendment that defendants

City, Klein, Bloomberg and Walcott deprived appellant of a property interest

and a liberty interest by allegedly forcing appellant to resign as interim-

acting principal of KGIA.

Appellant’s state law claims are: a claim under Article I,

Section 8 of the New York State Constitution that defendants retaliated

against her for her exercise of her right to free speech; a breach of contract

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claim, which appears to be premised on defendants’ (with the exception of

defendant Stuart) alleged breach of a promise to appellant to find her a

position comparable to that of interim-acting principal of KGIA; and a claim

against all defendants for intentional infliction of emotional distress.

ORDER APPEALED FROM

Appellant moved in the United States District Court for the

Southern District of New York for a preliminary injunction pursuant to Rule

65 of the Federal Rules of Civil Procedure, seeking an order: “(a) affording

appellant a full and fair opportunity to be reviewed and considered for the

position of principal at Khalil Gibran International Academy according to

the principles of merit and fitness, as provided in Chancellor’s Regulation C-

30, and including final consideration by a disinterested person, pending the

final determination of this action; and (b) enjoining and restraining

defendants from proceeding pursuant to Chancellor’s Regulation C-30

beyond the Level I Committee or to otherwise select, assign or appoint a

principal at the Khalil Gibran International Academy until appellant is

afforded such consideration.” See Order to Show Cause, dated November

19, 2007. Appellant’s motion was based solely on her two First Amendment

retaliation claims that are identified above.

On December 5, 2007, the United States District Court for the

Southern District of New York (Sidney H. Stein, J.) denied appellant’s

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application, holding that appellant failed to demonstrate a likelihood of

success on the merits and, therefore, also failed the demonstrate a clear and

substantial showing of a likelihood of success (326). The Court noted that

for purposes of its analysis, it would assume that the threat of irreparable

injury was present, and proceeded to the question of whether appellant could

demonstrate a clear likelihood of success on any of her claims.

The Court then noted, inter alia, that

“[a] plaintiff bringing the First Amendment retaliation claim pursuant to Section 1983 must initially demonstrate by a preponderance of the evidence that, one, her speech was constitutionally protected; two, she suffered an adverse employment decision; and, three, a causal connection exists between her speech and the adverse employment determination against her so that it can be said that her speech was a motivating factor in the determination. If a plaintiff establishes these three factors, the Court must then balance ‘the interests of the employee as a citizen in commenting upon matters of public policy and the interests of the state as an employer in promoting the efficiency of the public services it performs through its employees (citations omitted)” (333).

The Court found that, on the record before it, appellant’s speech

was not protected under the Garcetti doctrine (333-334).2 The Court found

that appellant’s comments to the New York Post were made as a part of her

job, pursuant to her official duties as acting interim principal of KGIA, and

noted that appellant acknowledged that responding to media inquiries was

2 Garcetti v. Ceballos, 547 U.S. 410 (2006).

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part of her job, both as interim principal of KGIA and as project director

(334). The Court also found that appellant always referred press inquiries to

the DOE press office as a matter of policy, and that the DOE press office

screened and approved the media outlets that desired to interview her.

The Court found that appellant agreed that David Cantor of the

DOE press office expressly told her not to talk about the controversial T-

shirts during the New York Post interview, and to limit the interview to a

discussion of KGIA. Accordingly, the Court found that appellant was

speaking to the New York Post as a part of her job, in her capacity as interim

acting principal of KGIA, pursuant to her official duties, and not as a private

citizen.

The Court held that

“the key issue in Garcetti is not whether an employee’s speech was internal to the place of employment or even whether that speech was directed to the media or the public, nor that the speech may address a matter of public concern. The focal point of any inquiry in regard to Garcetti is whether that speech was made pursuant to an employee’s official duties, within the rule of Garcetti. And here, the plaintiff’s comments to the Post were manifestly made in her official capacity. She, in effect, had been directed by her employer to give that interview, and the employer helped structure in and helped her with the answers to the questions and even was on the line during the interview. The fact that in the course of the interview she may have made comments that arguably fell outside the topics on which she had been directed to speak, for example, by addressing the meaning of the word “intifada,” is beside the point for the purposes of Garcetti. Garcetti itself

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would be unmanageable if employers and courts were obligated to parse every instance of an employee’s speech to determine what phrases in that speech were made pursuant to an employee’s duties and what phrases or sentences were not.

Similarly, it does not matter that plaintiff’s comments to the Post addressed the matter of public concern. What matters is she made the remarks while acting in her official capacity as interim acting principal of KGIA. For these reasons, plaintiff’s speech is not entitled to First Amendment protection, and she cannot demonstrate a clear likelihood of success on the merits of her First Amendment retaliation claim or, as I said, a likelihood of success” (335).

The District Court additionally found that

“with respect to the First Amendment retaliation claim, plaintiff has not demonstrated a likelihood of success, because her speech is not protected by Garcetti, as I have said. And even if that were not the case, it’s not unreasonable for the defendants to decide that plaintiff’s speech, or at least the consequences of that speech and the resultant public perception of KGIA, were likely to disrupt the ability of the school to function effectively. On the state of this record, that interest narrowly outweighs the plaintiff’s own free speech interests in this instance.”

The instant appeal ensued.

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RELEVANT STATUTE

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .

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SUMMARY OF THE ARGUMENT

The decision of the District Court should be affirmed, because

appellant cannot demonstrate a clear or substantial likelihood of success on

the merits of the case. The record demonstrates that the expression at issue

was made by appellant while she was performing her official duties as the

acting-interim principal of the Khalil Gibran International Academy. In

Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that the

expression of a public employee made as a part of that employee’s job duties

is not protected by the First Amendment. Accordingly, as appellant is

unable to demonstrate that she was speaking in the capacity of a private

citizen, the expression at issue is not Constitutionally protected.

Moreover, even if this Court were to find that appellant’s

statements to the press are found to be protected under Garcetti, that speech

is not protected under the Pickering/Connick balancing test. The

Pickering/Connick test requires reaching a balance between appellant’s

interests, as a citizen, in commenting upon matters of public concern and the

interests of the DOE, as her employer, in promoting the effectiveness and

efficiency of the public services it performs through its employees. The

record demonstrates that the District Court properly found that it was

reasonable for the appellees to conclude that appellant’s expression was

reasonably likely to disrupt the effective functioning of the Khalil Gibran

22

International Academy and provided a valid basis for her removal as

interim-acting principal.

ARGUMENT

To obtain a preliminary injunction, appellant must show: (1)

that she will be irreparably harmed if the injunction is not granted; and (2)

either (a) a likelihood of success on the merits, or (b) sufficiently serious

questions going to the merits of the claims to make them a fair ground of

litigation, and a balance of hardships tipping decidedly in her favor. Forest

City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 149 (2d

Cir. 1999).3

Appellant seeks to enjoin the selection of a principal for KGIA

in accordance with the C-30 process and New York Education Law §2590-

f(1)(e). Because the injunction sought by appellant will stay governmental

action taken in the public interest pursuant to a statutory or regulatory

scheme, appellant must establish a likelihood of success on the merits.

Forest City Daly Hous., Inc., supra, 175 F.3d at 149.

Moreover, because the injunction will alter rather than maintain

the status quo by, inter alia, directing defendants to interview appellant for

the position of KGIA principal, and prohibiting defendant Stuart from

3 See also Time Warner Cable v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir. 1997) (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).

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exercising the power granted to her by New York Education Law §2590-

f(1)(e) to appoint or reject a candidate for principal screened by the C-30

Level I Committee and prohibiting Chancellor Klein from exercising the

power granted to him by New York Education Law §2590-i(2)(c) to reject a

candidate for principal approved by a Community School District

Superintendent, appellant must show a “clear” or “substantial” likelihood of

success on the merits of her First Amendment claims. See Rodriguez ex rel.

Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (per curiam).

Generally, the standard of review for the grant or denial of a

preliminary injunction is whether the decision constitutes an abuse of

discretion. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). An abuse of

discretion ordinarily consists of applying an erroneous legal standard or

relying upon clearly erroneous findings of fact. Id.; Resolution Trust Corp.

v. Elman, 949 F.2d 624, 626 (2d Cir. 1991). In First Amendment cases, the

Court independently reviews the whole record in order to make sure that the

judgment does not constitute a forbidden intrusion on the field of free

expression. United States v. Cutler, 58 F.3d 825, 833 (2d Cir. 1995) (court

must carefully scrutinize the lower court’s application of the relevant

standards to the facts at hand).

As set forth below, appellant’s motion for a preliminary

injunction was properly denied because she cannot establish a clear

likelihood of success on the merits of her First Amendment claim for two

24

reasons. First, appellant’s statement to the New York Post, which was

published on August 6, 2007, was made as part of her official duties as

interim-acting principal of KGIA and, consequently, under Garcetti v.

Ceballos, 547 U.S. 410 (2006), does not constitute protected speech.

Second, assuming that the Court were to find that Garcetti does not render

appellant’s speech to be unprotected, and that she spoke as a citizen on a

matter of public concern, appellant cannot show a clear likelihood of success

on her argument that her speech is protected under the Pickering/Connick

balancing test.

POINT I

APPELLANT CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS BECAUSE HER SPEECH WAS MADE AS A PART OF HER OFFICIAL DUTIES.

The Supreme Court has made it clear that public employees do

not surrender their First Amendment rights by reason of their employment

and, instead, the First Amendment protects a public employee’s right, in

certain circumstances, to speak as a citizen addressing matters of public

concern. See Pickering v. Board of Education, 391 U.S. 563 (1968);

Connick v. Myers, 461 U.S. 138 (1983). The Supreme Court has also

recognized that “while the First Amendment invests public employees with

certain rights, it does not empower them to ‘constitutionalize the employee

25

grievance.’” Garcetti v. Ceballos, 547 U.S. 410 (2006), citing Connick, 461

U.S. at 154.

This Court has held that a plaintiff bringing a First Amendment

retaliation claim pursuant to 42 U.S.C. § 1983 must demonstrate by a

preponderance of the evidence that his or her speech was constitutionally

protected, and that he or she suffered an adverse employment decision, and

that there is a causal connection between the speech at issue and the adverse

employment determination such that it may be found that the speech was a

motivating factor in the determination. Morris v. Lindau, 196 F.3d 102, 110

(2d Cir. 1999).4

If the plaintiff establishes the above three factors, the court

must then balance the interests of the employee as a citizen in commenting

on matters of public policy against the interest of the governmental entity as

an employer in promoting the efficiency and effectiveness of the public

service it performs through its employees. See Pickering v. Board of

Education, 391 U.S. 563 (1968).

The first relevant inquiry guiding interpretation of the

constitutional protections accorded to public employee speech is whether the

public employee spoke as a citizen on a matter of public concern. Pickering,

supra, 391 U.S. at 568. If the public employee did not, he or she has no First

4 See also Zelnick v. Fashion Institute of Techology, 464 F.3d 217, 225 (2d Cir. 2006); Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005); Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000).

26

Amendment cause of action based upon the employer’s reaction to the

speech. Connick, supra, 461 U.S. at 147.

On the other hand, if the employee spoke as a citizen, there is a

possibility of a First Amendment claim. Under such circumstances, the

question becomes whether the governmental entity had an adequate

justification for treating the public employee differently than any other

member of the general public. Pickering, 391 U.S. at 568. That

“consideration reflects the importance of the relationship between the

speaker’s expression and employment.” Garcetti v. Ceballos, 547 U.S. at

418. Without a significant degree of control over its employees’ words and

actions, a government employer would have little chance to provide public

services efficiently. Connick, supra, 461 U.S. at 143.

In Garcetti v. Ceballos, supra, the Supreme Court held that

when “public employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First Amendment purposes,

and the Constitution does not insulate their communications from employer

discipline.” 547 U.S. at 421. The Supreme Court reasoned that

“government employers, like private employers, need a significant degree of

control over their employees’ words and actions” to operate efficiently and

provide necessary services. Garcetti, 547 U.S. at 418. As the Supreme Court

observed:

Ceballos did not act as a citizen when he went about conducting his daily professional activities,

27

such as supervising attorneys, investigating charges, and preparing filings. In the same way, he did not speak as a citizen by writing a memo that addressed the proper disposition of a criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee.

547 U.S. at 422.

In the instant case, appellant cannot establish a clear likelihood

of success on her First Amendment retaliation claim because her statement

to the New York Post, which was published on August 6, 2007, was not

made as a citizen. Instead, appellant’s speech was made as part of her daily

professional duties as interim-acting principal of KGIA. Appellant’s

comments thus fall squarely within the parameters of employee speech

which Garcetti held is not protected. Consequently, the District Court

properly rejected appellant’s assertion that her statements to the Post were

public words spoken in her capacity as a private citizen speaking on a matter

of public concern, as opposed to speech made pursuant to her official job

duties.

The District Court’s determination is amply supported by the

facts. The record demonstrates that the August 5, 2007 interview of

appellant, which resulted in the August 6, 2007 Post article, was only one of

a number of interviews that appellant had given to members of the news

media, in connection with her duties either as Project Director or interim-

acting principal of KGIA. The record shows that before August 5, 2007,

28

appellant was interviewed by members of the news media in connection with

her work at KGIA on at least eight occasions.

Appellant testified that shortly after the first interview, she

attended a meeting with members of the DOE press office and others for the

purpose of formulating strategy in handling media inquiries about KGIA.

Appellant also testified that for most of the interviews, she spoke to either

Melody Meyer or David Cantor of the DOE press office to coordinate the

interviews. On most of those occasions, either Mr. Cantor or Ms. Meyer

would prepare her for, or provide her with an overview of, the interview and

either Mr. Cantor or Ms. Meyer would be present or on the telephone line

while the interview was being conducted. Indeed, the DOE press office

screened and approved the media outlets that interviewed appellant.

Thus, it was clearly part of appellant’s job duties, both before

and on August 5, 2007, to be interviewed by members of the news media

about KGIA or KGIA-related issues, and the statements that she made to the

media, both before and on August 5, 2007, were made in her capacity as

either project director or interim-acting principal of KGIA. Appellant

interviewed with the New York Post on August 5, 2007, because that was

part of what she was employed to do. Garcetti, 547 U.S. at 421. In fact,

appellant testified that she “had no choice but to work with Mr. Cantor in

29

preparing for the interview” (192), and that she was “expected to participate

in the Post interview ” (253).5

Appellant made her statements on August 5, 2007 to the Post,

after having been prepared for that interview by several conversations with

Ms. Meyer and Mr. Cantor. Indeed, Ms. Meyer was on the telephone line

during that interview with the Post reporter. Clearly, appellant spoke in her

capacity as interim-acting principal of KGIA, and her attempt to portray her

statements to the Post as having been made in her capacity as a “private

citizen” was properly rejected by the Court below.

Appellant attempts to evade Garcetti by asserting that the

speech at issue was made when she assumed the role of a private citizen.

Appellant, however, cannot escape numerous undisputed facts about the

speech at issue, which formed the basis of the District Court’s decision.

5 Appellant curiously asserts that the “DOE may have had the right to require that she speak about KGIA, but it had no right to compel her to submit to an interview about her connection to the T-shirts or the intifada (citation omitted)” (Brief for Plaintiff-Appellant at p. 19). In fact, DOE did not compel appellant to discuss the T-shirts or the term “intifada,” nor did it claim the right to do so, and the record demonstrates instead that DOE specifically instructed appellant not to discuss those topics, which in any event comprised only one of the five questions posed by the Post (253, 329).

Appellant also asserts that the “Constitution protects her right to refuse to talk about issues unrelated to her job as much as it protects her right to talk about them” (Brief for Plaintiff-Appellant at p. 19). Nonetheless, the record demonstrates that appellant apparently did not believe at the time that the issue concerning the intifada T-shits was unrelated to her job, because appellant answered the Post reporter’s question about the T-shirt in her e-mail response, specifically commenting about her role as a public school principal (40).

30

Each of those facts demonstrate that appellant spoke in her official capacity,

as a part of her job, and not as a private citizen.

The reporter from the Post directly contacted the DOE press

office, and not appellant, by e-mail with five written questions (40-41, 147).

Appellant does not deny that four of the five written questions supplied by

the Post reporter specifically pertained to the Academy, its students, and the

school’s board of advisors; indeed, she cannot (40-41).6 Appellant, in effect,

was directed by DOE to give the interview (253), which she acknowledges

in her brief, asserting that the DOE press office “urged her to do the

interview” (Brief for Plaintiff-Appellant at p. 6). Appellant further admits

that the DOE press office structured the interview, and helped her with the

answers to the questions, including specifically telling her “not to talk about

the T-shirts” (Brief for Plaintiff-Appellant at p. 6).

Appellant also admits that the DOE press office fully

participated in the August 5, 2007 telephone interview, and that Ms. Meyer

was on the line for the duration of the call, and that Ms. Meyer even

“interjected” at one point during the interview (Brief for Plaintiff-Appellant

at p. 7). Appellant now asserts that Ms. Meyer did not “protest or say

anything” when appellant was asked the meaning of the word “intifada”

6 Moreover, a simple review of the first question, and appellant’s proposed response, demonstrated that even the first question pertains to the Academy, because it concerns appellant’s connection to the intifada T-shirts, as a public school principal (see 40).

31

(Brief for Plaintiff-Appellant at p. 7). Nonetheless, the issue before this

Court is whether appellant was speaking to the Post in her official capacity

as part of her job duties, and whether or not Ms. Meyer “protested” is not

relevant to a consideration of that question.

Appellant appears to argue that because she made comments

during the interview that arguably fell outside of the topics on which she was

directed to speak, she somehow was acting in the capacity of a private

citizen. That claim, however, is beside the point for purposes of Garcetti,

where the focus is on whether or not appellant made the remarks while

performing her duties as interim-acting principal of KGIA. As the Supreme

Court noted in Garcetti, the significant point is that the speech occurred

pursuant to appellant’s official duties:

“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties that employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned of created (citation omitted).” 547 U.S. at 421-422.

Of course, appellant did not claim to be speaking as a private

citizen at any time during the August 5, 2007 interview, or at any time

immediately thereafter. Appellant did not indicate in any way that she was

speaking in the capacity of a private citizen at any time during the August 5th

interview, nor did appellant make a disclaimer at any point regarding

whether she was not representing the DOE. Indeed, it appears that appellant

32

did not even make the claim that she was speaking as a private citizen in her

Complaint.

Appellant makes the insupportable assertion that “[t]he District

Court interpreted Garcetti to mean that if a public employee’s duties include

speaking to the media, then nothing that employee says to the media is

protected by the First Amendment” (Brief for Plaintiff-Appellant at p. 19).

That assertion, however, goes well beyond what the District Court actually

held. Of course, the District Court reached no such conclusion, and that

question certainly was not even before the court below. Instead, the District

Court properly followed Garcetti, where the Supreme Court held that when

the public employee goes to work and performs the tasks he or she is paid to

perform, they are acting not as a private citizen but instead as a government

employee. 547 U.S. at 421.

Appellant also makes the similarly insupportable assertion that

the task that she was paid to perform as a spokesperson was to speak about

KGIA, but that she was not paid by DOE to speak about other matters and,

consequently, when she spoke about “intifada” and the T-shirts, that speech

was made as a private citizen (Brief for Plaintiff-Appellant at p. 21).

Appellant appears, however, to be asserting that the controlling factor

regarding whether a public employee is speaking as a private citizen is not

whether the speaker is carrying out their job and performing the task for

which they are being paid, but is instead dependant upon the questioner or

33

the question asked. In any event, the speech at issue was made pursuant to

appellant’s official job duties.

Appellant then complains that the District Court should have

more “carefully parse[d]” the speech to determine whether it was protected

because of “what was said, to whom, and the circumstances under which it

was said, followed by a close examination of the nature of the employee’s

job responsibilities” (Brief for Plaintiff-Appellant at p. 21-22). Nonetheless,

it is respectfully submitted that the District Court did precisely that, very

carefully setting forth the relevant facts and properly applying the law.

The cases relied upon by appellant do not compel a different

conclusion. Appellant suggests that Garcetti somehow compels a more

detailed analysis to determine whether the individual spoke as a private

citizen than that which was undertaken by the District Court here.

Nonetheless, the cases cited by appellant do not hold that Garcetti requires a

different type of analysis than the one performed here by the District Court

and, instead, those cases employed a similar analysis to that used by the

District Court below: they first examined whether the speech at issue fell

within the Garcetti criteria (whether it was made as part of the speaker’s

official duties), then for the separate instances when the speech was not

made within the speaker’s official duties (and thus the speaker was speaking

as a private citizen), the cases applied a Pickering/Connick analysis, just as

the District Court below had done.

34

In contrast to the instant case, where appellant’s speech was

clearly made pursuant to her official duties and, consequently, is not

constitutionally protected, Brammer-Hoelter v. Twin Peaks Charter

Academy, 492 F.3d 1192 (10th Cir. 2007), largely involved a determination

of whether the subject speech pertained to matters of public concern after it

has been determined whether the employee was speaking as a private

citizen. The Court of Appeals for the Tenth Circuit began its analysis with

the recognition that when an employee engages in speech during the course

of performing an official duty and the speech reasonably contributes to or

facilitates the employee’s performance of the official duty, that speech is

made pursuant to employee’s official duties. Id. at 1203. The Tenth Circuit

then determined that the plaintiffs’ speech regarding twelve matters was not

made pursuant to the plaintiff’s official duties and were not constitutionally

protected. Id. at 1204-1205. The Court then considered whether the twelve

matters were of public concern, and found that eight of twelve matters

discussed by the plaintiffs were not matters of public concern because they

are internal in scope and personal in nature. Id. at 1206. With regard to the

remaining four matters, which the Court found to be matters of public

concern, the Court engaged in Pickering analysis.

Similarly, in Casey v. West Las Vegas Independent School

District, 473 F.3d 1323 (10th Cir. 2007), the plaintiff conceded that certain

statements at issue were made within the scope of her duties and are no

35

longer actionable after Garcetti, and the Tenth Circuit found that other

statements were similarly barred, leading the Court to conclude that because

the plaintiff conceded that her job duties required her to report to federal

authorities and that she did so, her speech “is more akin to that of a senior

executive acting pursuant to official duties than to that of an ordinary citizen

speaking on his or her own time” and held that the plaintiff “cannot meet her

burden here and avoid the heavy barrier erected by the Supreme Court in

Garcetti to the satisfaction of Pickering’s first prong.” Id. at 1331. The

Tenth Circuit also found that certain of the plaintiff’s conduct fell

sufficiently outside the scope of her duties to survive Garcetti, permitting the

Court to undertake Pickering analysis. Id. at 1332. In Lindsey v. City of

Orrick, 491 F.3d 892 (8th Cir. 2007), the Court of Appeals for the Eighth

Circuit acknowledged that “[a]fter Garcetti, a public employee does not

speak as a citizen if he speaks pursuant to his job duties.” Id. at 898.

Finding that the plaintiff spoke as a citizen and on a matter of public

concern, the Court employed the Pickering balancing test. Id. at 900.

Thus, the analysis employed by the Eighth Circuit and the

Tenth Circuit, which appellant in the instant case claims the District Court

should have engaged in here, was in fact conducted by the District Court

when it considered the Pickering/Connick doctrine, which presumes that

plaintiffs speak as private citizens. Appellant mischaracterizes the District

Court’s analysis of the Garcetti issue, as the District Court specifically

36

explained that it relied upon the findings of fact, which the court recited in

painstaking detail, to support the conclusion that appellant’s speech during

the Post interview was made pursuant to her official duties (326-332, 334).

In effect, appellant impermissibly seeks to add an additional

layer of analysis to Garcetti. Notably, in none of the cases relied upon by

appellant does it appear that the constitutionally protected speech and the

unprotected speech occur during the same expression, which appellant

claims is the case in this matter.

Speech expressed pursuant to ordinary job duties neither

represents nor advances the unquestioned goals of the First Amendment and,

as discussed below, blanketing such speech with constitutional protection

was not a driving concern in the removal of the barriers depriving public

employees of the most basic First Amendment protection.

Public employee speech expressed strictly pursuant to the

duties of employment should not be afforded First Amendment protection,

and the Supreme Court has never held that purely job-required speech is

constitutionally protected. In fact, at no time since Pickering has the

Supreme Court held that job-required speech should be afforded First

Amendment protection.7

7 See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) (reiterating Pickering test for determining whether speech of a government employee is constitutionally protected and finding protected a public school teacher’s communication with a radio station regarding the school’s dress code for teachers); Givhan v. Western Line Consolidated

37

Consequently, as the District Court correctly determined, under

Garcetti v. Ceballos, 547 U.S. 410 (2006), appellant’s job-required statement

does not constitute protected speech. Accordingly, as appellant’s speech is

not protected by the First Amendment, she cannot establish a clear

likelihood of success on the merits. For that reason, the decision of the

District Court should be affirmed.

POINT II

APPELLANT ADDITIONALLY CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS, BECAUSE EVEN IF APPELLANT’S STATEMENTS TO THE PRESS ARE FOUND TO BE PROTECTED UNDER GARCETTI, HER SPEECH IS NOT PROTECTED UNDER THE PICKERING/CONNICK TEST.

Even if one were to assume that Garcetti does not render

appellant’s speech unprotected, and that she somehow spoke as a citizen on

a matter of public concern, which the District Court properly found not to be

the case, appellant still cannot show a clear likelihood of success because her

School District, 439 U.S. 410 (1979) (finding constitutionally protected a teacher’s personal opinions regarding the school district’s desegregation efforts expressed to a supervisor); United States v. National Treasury Emp1oyees Union, 513 U.S. 454 (1995) (plaintiffs were found to have spoken in their capacity as citizens and the speeches were found to lack relevance to their employment); City of San Diego v. Roe, 543 U.S. 77 (2004); Perry v. Sindermann, 408 U.S. 593 (1972).

38

speech is not protected under the Pickering/Connick test. See Reuland v.

Hynes, 460 F.3d 409, 415 (2d Cir. 2006).

A. The Free Speech Clause Of The First Amendment Guarantees Citizens Access To An Open Forum For Public Debate.

On numerous occasions, the Supreme Court has considered the

fundamental purposes of the First Amendment. See, e.g. Boos v. Barry, 485

U.S. 312, 322 (1989) (“As a general matter, we have indicated that in public

debate our own citizens must tolerate insulting, and even outrageous, speech

in order to provide ‘adequate “breathing space’ to the freedoms protected by

the First Amendment”); Pacific Gas and Elec. Co. v. Public Utilities Com’n

of California, 475 U.S. 1, 8 (1986) (“By protecting those who wish to enter

the marketplace of ideas from government attack, the First Amendment

protects the public’s interest in receiving information.”).8

The underlying purpose of the First Amendment has been

frequently explained:

The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of

8 See also Mills v. State of Ala., 384 U.S. 214, 218 (1966) (“Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.”); Red Lion Broad-casting Co. v. F.C.C., 395 U.S. 367, 390 (1969) (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.”).

39

subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.

Thornhill v. State of Alabama, 310 U.S. 88, 101-02 (1940) (footnotes

omitted). Justice Brandeis discussed the Founding Fathers’ motivations

underlying the First Amendment:

Those who won our independence believed . . . that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Whitney v. California, 274 U.S. 357, 375-76 (1927) (J. Brandeis,

concurring).

Thus, when considering the boundaries of the protection offered

by the First Amendment and, in particular, a determination of whether these

boundaries should encompass speech expressed pursuant to ordinary job

duties, the fundamental intent should be given due consideration.

40

B. Pickering And Connick Are Inextricably Intertwined With The Fundamental Purposes Of The Free Speech Clause.

Throughout much of the nation’s history, public employees, by

virtue of their public employment, had very little First Amendment

protection. The Supreme Court has noted that:

For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment -- including those which restricted the exercise of constitutional rights. . . . The Court cast new light on the matter in a series of cases arising from the widespread efforts in the 1950s and early 1960s to require public employees, particularly teachers, to swear oaths of loyalty to the state and reveal the groups with which they associated.

Connick v. Myers, 461 U.S. 138, 143-44 (1983). Through several cases, the

Supreme Court expanded constitutional protection to public employees by

invalidating statutes that “sought to suppress the rights of public employees

to participate in public affairs.” Id. at 144-45. The Supreme Court’s point

of view with regard to statutory infringements was consistent with the main

purpose of the First Amendment: “to assure unfettered interchange of ideas

for the bringing about of political and social changes desired by the people.”

Roth v. United States, 354 U.S. 476, 484 (1957).

The movement to recognize and define the extent of First

Amendment protection for public employees was continued in Pickering v.

Board of Education, 391 U.S. 563 (1968), which involved the claim by a

41

public school teacher that he had been discharged based solely on his public

criticisms of the school board in violation of the free speech clause of the

First Amendment. The Supreme Court held that such speech by public

employees is constitutionally protected, but that protection was carefully

limited and, in large part, tied to the underlying purposes of the First

Amendment.

In Pickering, the Supreme Court established a two-part

balancing test for determining whether speech is constitutionally protected.

Under this test, a court must first decide whether the expression constitutes

speech on “a matter of public concern.” Pickering, 391 U.S. at 568;

Connick, supra, 461 U.S. at 146; Rankin v. McPherson, 483 U.S. 378, 384

(1987). If the speech addresses a matter of public concern, the court then

balances “the interests of the [employee] as a citizen, on commenting upon

matters of public concern and the interest of the State, as employer, in

promoting the efficiency of the public service it performs through its

employees.” Pickering, 391 U.S. at 568; Connick, supra, 461 U.S. at 150.

When a plaintiff’s speech on a matter of public concern is

sufficiently disruptive to government operations so that the disruption

outweighs the value of the speech, a public employer may take an adverse

employment action against the employee. Blackman v. New York City

Transit Authority, 491 F.3d 95 (2d Cir. 2007); Sheppard v. Beerman, 317

F.3d 351, 355 (2d Cir. 2003).

42

Even if there is no actual disruption, the government employer

may act to prevent potential disruption if the employer reasonably believes

that the employee’s speech threatens to interfere with government

operations. Waters v. Churchill, 511 U.S. 661, 672-74 (1994); Jeffries v.

Harleston, 52 F.3d 9, 12 (2d Cir.), cert. denied, 516 U.S. 862 (1995).

Indeed, “the extent of the injury caused by the employee’s speech need not

be actual; rather, the government’s burden is just to show that the speech

threatened to interfere with government operations.” Jeffries, supra, 52 F.3d

at 12 (citing Waters, 511 U.S. at 673-74). Moreover, the Supreme Court has

granted “substantial weight to government employers’ reasonable

predictions of disruption, even when the speech involved is on a matter of

public concern.” Waters, 511 US at 673; see Jeffries, 52 F.3d at 12.

The holding in Pickering was carefully limited and did not

espouse First Amendment protection for purely job-required speech. The

Supreme Court made it clear that a public employee could not be

“compelled to relinquish the First Amendment rights they would otherwise

enjoy as citizens to comment on matters of public concern.” Mr. Pickering’s

First Amendment claim, however, could not be resolved on the basis of this

principle alone because of the significant interests that affect the

government’s role as employer:

it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the

43

speech of the citizenry in general. The problem in any case is 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.

391 U.S. at 568.9 Consequently, the contemplated balancing of interests

occurs where the employee engages in citizen speech on a matter of public

concern, requiring the weighing of those interests against the employer’s

interests in workplace efficiency and harmony.

Although the Supreme Court declined to articulate a single test

by which to evaluate public employees’ criticism of their employers, it

discussed “some of the general lines along which an analysis of the

controlling interests should run.” Id. at 569. The Court emphasized the

relationship between First Amendment protection for public employees and

the extent to which the subject speech contributed to the public debate:

More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern. . . . On such a question, free and open debate is vital to informed decision-making by the electorate.” Id. at 571-72.

[Where a public school teacher’s erroneous and critical statements about a matter of public concern have not been shown to have had a disruptive effect in the workplace], “we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to the public

9 See Connick, supra, 461 U.S. at 151 (the Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public).

44

debate is not significantly greater than its interest in limiting a similar contribution to any member of the general public.” Id. at 573.

“The public interest in having free and unhindered debate on matters of public importance -- the core value of the Free Speech Clause of the First Amendment -- is so great” that a public official may recover damages for defamatory statements only if they are made with knowledge of their falsity or reckless disregard for their truth or falsity. Ibid.

“In a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.” Id. at 574.

“In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, 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.” Ibid.

Thus, the Supreme Court did not find Mr. Pickering’s speech to

be constitutionally protected simply because that speech pertained to a

matter of public concern. Instead, the Court identified as significant factors

the relationship between the speech and the speaker’s employment, and the

speaker’s intent to be treated as a citizen -- and not as an employee.

Consequently, Pickering is pivotal because its focus on Mr.

Pickering’s motivation to participate in the public debate “as a citizen”

continues to resonate today. Indeed, the term “Pickering/Connick test” has

45

become engrained in the legal vernacular of First Amendment jurisprudence

in the public employment context.

C. Under Connick, First Amendment Protection Requires Speech To Be Expressed “As A Citizen.”

In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court

noted that Pickering had identified the competing interests at stake. On one

side, there is the interest of the government to promote the efficiency of the

public services performed through its employees, and on the other side, the

interest of the employee, as a citizen, in commenting upon matters of public

concern. Against this backdrop, the Court was “returning to this problem . .

. [to] consider whether the First and Fourteenth Amendments prevent the

discharge of a state employee for circulating a questionnaire concerning

internal office affairs.”

The plaintiff in Connick was a prosecutor employed by the

New Orleans District Attorney’s Office who learned that she was to be

transferred to a different department and who expressed her opposition to

several supervisors, including the district attorney. The plaintiff

subsequently prepared and circulated a questionnaire designed to obtain the

views of her fellow prosecutors on a number of topics, including the transfer

policy, office morale, level of confidence in the supervisors and whether

anyone had felt pressured to work in political campaigns. Id. at 141. Upon

learning about the questionnaire and being told that it had created a “mini-

46

insurrection”, the district attorney informed the plaintiff that she was being

terminated because she had refused to accept the transfer, and that the

questionnaire was considered an act of insubordination.

In her § 1983 action, the plaintiff alleged that her termination

was unlawful because she had exercised her constitutionally-protected right

of free speech. The district court and the Fifth Circuit Court of Appeals

agreed, finding that the questionnaire involved matters of public concern,

and that it had not been clearly demonstrated that the questionnaire had

substantially interfered with the operation of the district attorney’s office.

Id. at 142. Upon review, the Supreme Court reiterated the relevant inquiry

as seeking a balance between the interests of the employee, as a citizen, in

commenting upon matters of public concern and the interests of the State, as

an employer, in promoting the efficiency of the public services it performs

through its employees.

Before determining whether any part of the questionnaire

involved constitutionally protected speech, the Supreme Court discussed the

analysis in Pickering, noting that the emphasis that a public employee has a

right, “as a citizen”, to comment upon matters of public concern, was not

accidental. Id. at 143. The Court explained that this critical language

“reflects both the historical evolvement of the rights of public employees,

and the common sense realization that government offices could not

47

function if every employment decision became a constitutional matter.”

Ibid.

The Court then articulated the following standard for

determining constitutional protection for public employee speech:

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, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

Id. at 147. The Court noted further that its “responsibility is to ensure that

citizens are not deprived of fundamental rights by virtue of working for the

government . . . .” Ibid. While the Court did not explicitly find that the

questionnaire involved citizen speech, it may not be disputed that the

questionnaire was not prepared pursuant to plaintiff’s prosecutorial duties.10

The Court, however, did review the questionnaire to determine whether any

part of it involved a matter of public concern, and found that the portion

regarding the pressure to participate in political campaigns was the only part

of the questionnaire that was constitutionally protected. Id. at 149.

Thus, the essence of this finding was that with respect to this

part of the questionnaire, the plaintiff had spoken as a citizen upon a matter

of public concern. The Court then balanced the competing interests and held

10 In direct contrast, Ms. Almontaser’s speech indisputably occurred in accordance with her normal duties and, therefore, is devoid of any citizen speech.

48

that “the limited First Amendment interest involved here does not require

that Connick tolerate action he reasonably believed would disrupt the office,

undermine his authority, and destroy close working relationships.” Id. at

154.

The relationship between the underlying purposes of the First

Amendment and the incorporation of a citizen speech element in the test for

constitutional protection was further addressed in the Supreme Court’s

concluding remarks:

Although today the balance is struck for the government, this is no defeat for the First Amendment. For it would be a Pyrrhic victory for the great principles of free expression if the Amendment’s safeguarding of a public employee’s right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here.

Id. at 154.

Accordingly, in the instant case, an application of the

Pickering/Connick test requires reaching a balance between appellant’s

interests, as a citizen, in commenting upon matters of public concern and the

interests of the DOE, as an employer, in promoting the effectiveness and

efficiency of the public services it performs through its employees.

49

D. The Factual Record In The Instant Case Demonstrates That Defendants Reasonably Determined That Appellant’s Statements Threatened To Interfere With The Operation Of The School.

Even if one were to assume that Garcetti does not render

appellant’s speech unprotected, and that appellant’s statements that were

published in the Post on August 6, 2007 addressed a matter of public

concern, appellant cannot establish a clear likelihood of success on her claim

that her speech is protected under the Pickering/Connick test. That is

because the record demonstrates that appellant’s statements caused or could

potentially cause disruption, and threatened to interfere with the operation of

the school.

As this Court recognized in Melzer v. Board of Education, 336

F.3d 185, 199 (2d Cir. 2003), the disruption caused by parents of students at

a public school in reaction to speech by a public school teacher or official is

properly considered in the Pickering/Connick test:

“Parents are not outsiders seeking to heckle Melzer into silence, rather they are participants in public education, without whose cooperation public education as a practical matter cannot function. Any disruption created by parents can be fairly characterized as internal disruption to the operation of the school, a factor which may be accounted for in the balancing test and which may outweigh a public employee's rights. In consequence, we do not perceive an impermissible heckler's veto implicated in this case.”

Melzer, 336 F.3d at 199.

50

Appellant argues that in the present case, there is no evidence

that parents of KGIA students had a negative reaction to her statements to

the Post. However, that statement is plainly contradicted by appellant’s

resignation letter, where she stated, in referring to the negative reaction to

her statements: “their intolerant and hateful tone has come to frighten some

of the parents and incoming students” (322). Certainly, if the parents of

incoming KGIA students and the students themselves were frightened, upset,

or alarmed by appellant’s statements to the Post or by the negative reaction

to appellant’s statements, that must be taken into account in the

Pickering/Connick test and would outweigh any interest appellant has in

making her statements to the Post.

The District Court initially considered as a matter of law

whether the speech at issue relates to a matter of public concern, and

concluded that appellant’s comments did, in fact, relate to a matter of public

concern (336). Thereafter, the court below noted that the alleged adverse

action nevertheless may not violate the employee’s rights if the employee’s

speech is reasonably likely to disrupt the effective functioning of the office

and the employee is fired to prevent this disruption (336). Reuland v.

Hynes, supra. See also Sheppard v. Beerman, supra, 317 F.3d at 355.

The District Court found that it was reasonable for the appellees

to conclude that appellant’s speech was reasonably likely to disrupt the

effective functioning of KGIA and provided a valid basis for her removal as

51

interim-acting principal and for appellant not going further in the selection

process (336). The court below noted that appellant’s “resignation letter

specifically referred to the intolerant and hateful tone of the attacks in the

media and the facts that those attacks have come ‘to frighten some of the

parents and incoming students’” (336). The District Court also noted that

appellant also wrote that she had “grown increasingly concerned” that

outsiders would “disrupt the community of learning” when KGIA began

classes (336).

The District Court took into account the August 2, 2007 e-mail

from Ms. Stuart, expressing her concern that the school opening might be

disrupted by protests (223). The Court also found support in the record for a

finding that appellant had considered that immediately following her

resignation, her application for permanent principal might have a

destabilizing effect on KGIA (336).

The District Court also found that the record demonstrates that

KGIA had become a “lightning rod for negative media attention and that

certain groups and individuals had been vocal in objecting to the school,”

noting that “[t]he issue is not whether it was justified or not, but it was a

fact” (336). On the basis of all of the above factors, and particularly “the

negative coverage that followed the August 5 interview,” the District Court

concluded that it was reasonable for the appellees to conclude that the

52

reaction to appellant’s speech, including its portrayal in the Post, was likely

to disrupt the function in KGIA (336).

This Court has noted that “where a government employee’s job

quintessentially involves public contact, the government may take into

account the public’s perception of that employee’s speech in determining

whether those acts are disruptive to the government’s operations.” Locurto

v. Giuliani, 447 F.3d 159, 179 (2d Cir. 2006). The District Court found that

the position of interim-acting principal of KGIA “could essentially involve

public contact” and noted that appellant viewed her role as principal as

including responding to press inquiries related to KGIA. Consequently, the

court below found that assuming there was an adverse employment action

taken by appellees, that action was based on a reasonable concern over the

public perception of appellant’s views (336).

The District Court noted that even where it is reasonable for the

government to have found that the speech was likely to cause disruption, the

court must then balance the employee’s interest in expressing herself against

any injury the speech could cause to the interest of the government, as an

employer, in promoting the efficiency of the public services it performs

through its employees. Locurto, supra, 447 F.3d at 172, 173.

The District Court found that in the August 5, 2007 Post

interview, appellant “undoubtedly had an interest in defending the mission

of KGIA and, in addition, in defending [her] own reputation which had

53

come under attack” and additionally noted that the appellees “have not

provided any concrete evidence to suggest that the negative attention

focused on KGIA in August and September would have been any greater

had Almontaser not resigned and had remained in her post when the school

began holding classes” (337). Nonetheless, the court below correctly noted

that,

“as the Supreme Court emphasized in Garcetti, ‘employers have heightened interest in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment and promote the employer’s mission” (337).

Thus the District Court correctly held that if it were to reach the

issue, it would conclude that the heightened interest of the appellees in

managing the public perception of KGIA outweighs appellant’s free speech

interests (337). The Court noted that DOE continues to have a heightened

interest in managing the public perception of KGIA, and it was not

unreasonable for DOE to conclude that if appellant were to be deemed a

permanent principal at KGIA, disruption to the function of the school would

follow (337).

Consequently, the District Court concluded that with respect to

the First Amendment retaliation claim, appellant had not demonstrated a

likelihood of success because her speech is not protected by Garcetti, and

54

“even if that were not the case, it’s not unreasonable for the defendants to decide that plaintiff’s speech, or at least the consequences of that speech and the resultant public perception of KGIA, were likely to disrupt the ability of the school to function effectively” (337).

For all of the above reasons, appellant cannot establish a clear

likelihood of success on the merits of her claim that she engaged in speech

protected by the First Amendment.

POINT III

APPELLANT CANNOT SHOW THAT SHE WILL SUFFER IRREPARABLE HARM IF THE INJUNCTION IS NOT GRANTED.

Appellant alleges that defendants violated her First Amendment

right of free speech by forcing her to resign as interim-acting principal of

KGIA on August 10, 2007 and by not selecting her to be interviewed by the

Level I Committee for the KGIA principal position, both allegedly in

retaliation for her statements that were published in the New York Post on

August 6, 2007. Nonetheless, appellant offers no evidence in satisfaction of

her obligation to demonstrate that she will suffer irreparable harm.11

11 The City recognizes that the decision of the District Court did not reach a determination of whether appellant can demonstrate irreparable injury because the court below found that appellant cannot demonstrate a clear likelihood of success. Nonetheless, the District Court presumed for the purpose of its analysis that the threat of irreparable injury is present, and proceeded to the question of whether appellant can demonstrate a clear likelihood of success (333). Accordingly, the City has briefly addressed the issue of irreparable harm.

55

The Supreme Court has observed that “[t]he loss of First

Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

However, appellant is still required to present evidence that she, in fact, has

sustained a loss of her First Amendment freedoms, and will suffer another

loss of such freedoms if the injunction is not granted.

This Court has held that in a First Amendment retaliation action

by a public employee, the employee must “allege a clearcut infringement of

first amendment rights, which, absent preliminary injunctive relief, either

has occurred or will occur in the future.” American Postal Workers Union v.

United States Postal Service, 766 F.2d 715, 722 (2d Cir. 1985). A showing

of theoretical or conjectural harm is insufficient. See Latino Officers

Association v. Safir, 170 F.3d 167, 171 (2d Cir. 1999).

Moreover, appellant “must establish a causal link between the

injunction sought and the alleged injury, that is, the plaintiff must

demonstrate that the injunction will prevent the feared deprivation of free

Similarly, the District Court did not reach a determination of whether appellant is entitled to impartial consideration of her application for the position of principal, and for that reason, appellant’s argument is beyond the scope of the instant appeal. Appellant’s representation that “[t]he court below rejected plaintiff’s argument that if she prevails on her First Amendment argument, her application for the principal’s position must be made by an impartial decision-maker” (Brief for Plaintiff-Appellant at p. 15) is incorrect. As the District Court did not consider that issue, it is improperly raised by appellant and should be disregarded by this Court.

56

speech rights.” Bronx Household of Faith v. Bd. of Education., 331 F.3d

342, 350 (2d Cir. 2003).

Here, appellant cannot establish irreparable harm for two

reasons. First, she will not be harmed irreparably if an injunction is not

granted and someone other than herself is selected as the principal of KGIA.

Appellant will not have been prevented from being considered for a

principal position at every DOE school - - only KGIA. Appellant is free to

apply for any principal position for which she possesses the minimum

qualifications. She has chosen not do so because, in her own words, “I don’t

have an interest in applying for any other” principal position (156).

However, merely not being selected for one principal position does not

constitute irreparable harm.

Appellant also cannot establish irreparable harm because she

cannot establish that a clear violation of her First Amendment right to free

speech has occurred, or that it will occur. That is because appellant cannot

demonstrate that her statements to the New York Post are protected by the

First Amendment, or that defendants forced her to resign as interim-acting

principal and did not select her for the principal position at KGIA because of

those statements.

Accordingly, for all of the reasons set forth above, the decision

of the District Court should be affirmed, with costs.

57

CONCLUSION

THE DECISION AND ORDER APPEALED FROM SHOULD BE AFFIRMED, WITH COSTS.

Respectfully submitted,

MICHAEL A. CARDOZO, Corporation Counsel

of the City of New York, 100 Church Street, Room 6-194

New York, N.Y. 10007 By: __________________________ Drake A. Colley (DC6397) Assistant Corporation Counsel EDWARD F.X. HART, DRAKE A. COLLEY of Counsel. January 7, 2008

CERTIFICATION OF WORD COUNT

I certify that this brief, exclusive of the Table of Contents and Table of Authorities, contains fewer than 14,000 words. _____________________________ Drake A. Colley

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................. iii

PRELIMINARY STATEMENT ............................................................................ 1

JURISDICTIONAL STATEMENT ....................................................................... 2

ISSUE PRESENTED ............................................................................................. 3

STATEMENT OF FACTS..................................................................................... 3

ORDER APPEALED FROM............................................................................... 16

RELEVANT STATUTE ...................................................................................... 20

SUMMARY OF THE ARGUMENT ................................................................... 21

ARGUMENT....................................................................................................... 22

POINT I

APPELLANT CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS BECAUSE HER SPEECH WAS MADE AS A PART OF HER OFFICIAL DUTIES. .......................................................................................... 24

POINT II

APPELLANT ADDITIONALLY CANNOT DEMONSTRATE A CLEAR OR SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS, BECAUSE EVEN IF APPELLANT’S STATEMENTS TO THE PRESS ARE FOUND TO BE PROTECTED UNDER GARCETTI, HER SPEECH IS NOT PROTECTED UNDER THE PICKERING/CONNICK TEST. ...................................................... 37

ii

POINT III

APPELLANT CANNOT SHOW THAT SHE WILL SUFFER IRREPARABLE HARM IF THE INJUNCTION IS NOT GRANTED. ..................................................................................... 54

CONCLUSION.................................................................................................... 57

iii

TABLE OF AUTHORITIES

FEDERAL CASES American Postal Workers Union v. United States Postal Service,

766 F.2d 715 (2d Cir. 1985) ............................................................................ 55 Blackman v. New York City Transit Authority,

491 F.3d 95 (2d Cir. 2007) .............................................................................. 41 Boos v. Barry,

485 U.S. 312 (1989) ........................................................................................ 38 Brammer-Hoelter v. Twin Peaks Charter Academy,

492 F.3d 1192 (10th Cir. 2007) ....................................................................... 34 Bronx Household of Faith v. Bd. of Education.,

331 F.3d 342 (2d Cir. 2003) ............................................................................ 56 Casey v. West Las Vegas Independent School District,

473 F.3d 1323 (10th Cir. 2007) ................................................................. 34, 35 City of San Diego v. Roe,

543 U.S. 77 (2004) .......................................................................................... 37 Connick v. Myers,

461 U.S. 138 (1983) ................................................................................. passim Diesel v. Town of Lewisboro,

232 F.3d 92 (2d Cir. 2000) .............................................................................. 25 Elrod v. Burns,

427 U.S. 347 (1976) ........................................................................................ 55 Forest City Daly Hous., Inc. v. Town of North Hempstead,

175 F.3d 144 (2d Cir. 1999) ............................................................................ 22 Garcetti v. Ceballos,

547 U.S. 410 (2006) ................................................................................. passim Givhan v. Western Line Consolidated School District,

439 U.S. 410 (1979) ........................................................................................ 36

iv

Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005) ............................................................................ 25

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.,

596 F.2d 70 (2d Cir. 1979) .............................................................................. 22 Jeffries v. Harleston,

52 F.3d 9 (2d Cir.), cert. denied, 516 U.S. 862 (1995)..................................... 42 Jolly v. Coughlin,

76 F.3d 468 (2d Cir. 1996) .............................................................................. 23 Latino Officers Association v. Safir,

170 F.3d 167 (2d Cir. 1999) ............................................................................ 55 Lindsey v. City of Orrick,

491 F.3d 892 (8th Cir. 2007) ........................................................................... 35 Locurto v. Giuliani,

447 F.3d 159 (2d Cir. 2006) ............................................................................ 52 Melzer v. Board of Education,

336 F.3d 185 (2d Cir. 2003) ............................................................................ 49 Mills v. State of Alabama,

384 U.S. 214 (1966) ........................................................................................ 38 Morris v. Lindau,

196 F.3d 102 (2d Cir. 1999) ............................................................................ 25 Mt. Healthy City School District Board of Education v. Doyle,

429 U.S. 274 (1977) ........................................................................................ 36 Pacific Gas and Elec. Co. v. Public Utilities Com'n of California,

475 U.S. 1 (1986)............................................................................................ 38 Perry v. Sindermann,

408 U.S. 593 (1972) ........................................................................................ 37 Pickering v. Board of Education,

391 U.S. 563 (1968) ................................................................................. passim

v

Rankin v. McPherson, 483 U.S. 378 (1987) ........................................................................................ 41

Red Lion Broadcasting Co. v. F.C.C.,

395 U.S. 367 (1969) ........................................................................................ 38 Resolution Trust Corp. v. Elman,

949 F.2d 624 (2d Cir. 1991) ............................................................................ 23 Reuland v. Hynes,

460 F.3d 409 (2d Cir. 2006) ...................................................................... 38, 50 Rodriguez ex rel. Rodriguez v. DeBuono,

175 F.3d 227 (2d Cir. 1999) ............................................................................ 23 Roth v. United States,

354 U.S. 476 (1957) ........................................................................................ 40 Sheppard v. Beerman,

317 F.3d 351 (2d Cir. 2003) ...................................................................... 41, 50 Thornhill v. State of Alabama,

310 U.S. 88 (1940) .......................................................................................... 39 Time Warner Cable v. Bloomberg L.P.,

118 F.3d 917 (2d Cir. 1997) ............................................................................ 22 United States v. Cutler,

58 F.3d 825 (2d Cir. 1995) .............................................................................. 23 United States v. National Treasury Emp1oyees Union,

513 U.S. 454 (1995) ........................................................................................ 37 Waters v. Churchill,

511 U.S. 661 (1994) ........................................................................................ 42 Whitney v. California,

274 U.S. 357 (1927) ........................................................................................ 39 Zelnick v. Fashion Institute of Techology,

464 F.3d 217 (2d Cir. 2006) ............................................................................ 25

vi

FEDERAL STATUTES

42 U.S.C. §1983............................................................................15, 17, 20, 25, 46 28 U.S.C. § 1292(a)(1) ........................................................................................... 2 Fed. R. App. P. 4(a)................................................................................................ 2

07-5468-cv UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DEBBIE ALMONTASER,

Plaintiff-Appellant,

-against- NEW YORK CITY DEPARTMENT OF EDUCATION; JOEL KLEIN, individually and in his official capacity as Chancellor of the New York City Department of Education; ROSEMARY STUART, individually and in her official capacity as Community Superintendent of District 15 and Hiring Manager; CITY OF NEW YORK; MICHAEL BLOOMBERG, individually and in his official capacity as Mayor of the City of New York; DENNIS WALCOTT, individually and in his official capacity as Deputy Mayor for Education and Community Development,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

APPELLEES’ BRIEF

MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendants-Appellees 100 Church Street, 6-194 New York, New York 10007. (212) 788-1613

Edward F.X. Hart, Drake A. Colley

of Counsel January 7, 2008