Cioffi v. Averill Park Central School District, 2006 WL 853259 (2d Cir. Apr. 4, 2006)
The U.S. Court of Appeals for the Second Circuit has ruled that a high school athletic director has a valid cause of action against a New York school district for retaliation when it eliminated his position after he spoke publicly about a hazing incident involving members of the football team and the district’s handling of the incident. Louis Cioffi was employed by Averill Park Central School District (APCSD) as athletic director/director of physical education at Averill Park Central High School (APCHS). After a parent complained about serious misbehavior on the football team, Mr. Cioffi and another school administrator conducted an investigation. They learned of a hazing incident involving a player being “tea bagged,” i.e. held down by several players while another player rubs his genitals in the victim’s face. Mr. Cioffi reported the incident to Superintendent Michael Johnson. APCSD took certain steps to address the incident, such as changing supervision protocols in the football locker rooms, seeking the involvement of the New York State Police, and advising parents that unspecified incidents of "sexual harassment and/or hazing” “had been uncovered.” APCSD, however, failed to inform the parents of the player who had been the victim of the “tea bagging” assault. Shortly after, Mr. Cioffi sent a letter to the superintendent that was critical of the football coach and his supervision of the team. He also questioned APCSD’s handling of the hazing incident and stated that his overriding concern was for the health and safety of the students. The letter was forwarded to the school board at Mr. Cioffi’s request. Media scrutiny and public interest increased after the victim in the hazing incident filed a criminal complaint. Several teachers and students were arrested and the football coaching staff was suspended. The school board subsequently met in an executive session during which members reached an informal consensus to eliminate the athletic director’s position as part of the following year’s budget. After learning of the board’s intention to abolish his job, Mr. Cioffi held a press conference during which he charged that the board’s decision to eliminate his position was in retaliation for his criticisms of the football coach, the football program, and the investigation of the “tea bagging” incident. He reiterated his concern for the student-athletes. A month later, the board held a public session for the purpose of voting on a budget for the next school year. It approved a proposed budget that eliminated Mr. Cioffi’s position and replaced it with the new position of athletic director/assistant principal. The personnel change was justified on the basis of financial savings to APCSD. However, Mr. Cioffi, as a tenured teacher, was able to return to his previous position as a social studies teacher at lower salary than that of athletic director, but at a salary considerably greater than the salary of the social studies teacher he replaced.
Mr. Cioffi filed suit under § 1983 in federal district court alleging that the school board eliminated his position in retaliation for his letter and comments at his press conference. The district court granted summary judgment to the school board and other defendants on the grounds: (1) the letter and press conference were not protected speech under the First Amendment because they do not address matters of public concern; (2) even if the athletic director’s speech constituted protected speech, there was no causal connection between the speech and the elimination of his job; and (3) the superintendent and school board’s president McGreevy were entitled to absolute immunity because the board’s approval of the school budget was a legislative act. The Second Circuit affirmed the lower court as to its ruling on absolute legislative immunity for the superintendent and the board’s president. However, it vacated the district court’s ruling as to all other defendants and remanded the case to the district court. The appellate court identified three issues:(1) whether Mr. Cioffi's speech addressed a matter of public concern; (2) whether there was a causal connection between his speech and the abolition of his position; and (3) whether the defendants would have eliminated Mr. Cioffi’s position in the absence of his speech.
The Second Circuit concluded, after the analyzing the content, form, and context of the speech that, as a matter of law, both the letter to the school board and Mr. Cioffi’s statements at the press conference addressed matters of public concern protected by the First Amendment. As to the content, it found that Mr. Cioffi’s statements in both the letter and press conference addressed a hazing incident, which constituted a sexual assault, and how APCSD handled it—which were certainly mattes of paramount interest to the community. Regarding the form, while the court conceded that the letter was of a private nature, it was nonetheless on a matter of public concern because the subject of it dealt with criminal assault of a minor rather a personal grievance. As to the press conference, the form was clearly public. Turning to context, the court found that both the letter and press conference occurred in the media frenzy ensuing after the hazing incident became public. The court rejected the defendants’ argument that the speech was not on a matter of public concern because Mr. Cioffi’s primary purpose in speaking was to protect his job by denying any personal responsibility for the hazing incident. It found that the speaker’s motivation is not dispositive of whether the speech is on a matter of concern. It pointed out that motive is merely one of several factors that courts take into account when they examine the content, form, and context. The court stated that “[o]ur analysis is content-based and not, as defendants would have it, solely motivation-based.”
Turning to the causation issue, the Second Circuit concluded, that given the relatively brief period of time that elapsed between the letter, the executive session, the press conference, and the board’s public meeting on the budget, Mr. Cioffi had presented sufficient evidence that an adverse employment action had occurred as a result of his statements to create a triable issue as to causation. Finally, the court found that Mr. Cioffi had present sufficient facts to create a triable issue on the question of whether the board would have eliminated his position for budgetary reasons regardless of his comments. It pointed out that although combining the athletic director’s and assistant principal’ s position would result in some fiscal savings that savings might very well be negated by the increased salary paid out for the social studies teacher’s position because of Mr. Cioffi’s status as tenured teacher.
Cioffi v. Averill Park Central School District, 2006 WL 853259 (2d Cir. Apr. 4, 2006)
[Full opinion]
[Editor’s Note: In a footnote, the Second Circuit states that this case is distinguishable from Garcetti v. Ceballos, 361 F.3d 1168 (9th Cir. 2004), cert. granted, 125 S.Ct. 1295 (2005). In Garcetti v. Ceballos the U.S. Supreme Court must decide whether job-related speech expressed pursuant to job duties is protected by the First Amendment simply because it touches on a matter of public concern. According to the Second Circuit, Mr. Cioffi’s memo is protected speech because he was speaking not strictly pursuant to his job duties, but rather as a citizen who happens to be a public employee. Regardless of the Second Circuit’s view of the applicability of Garcetti v. Ceballos to this case, it is possible the U.S. Supreme Court will agree with the dissenting judge in Garcetti v. Ceballos that it is not possible for a public employee to act as a citizen when speaking at work about a job-related matter that is of public concern. For additional background on Garcetti v. Ceballos, including NSBA’s Supreme Court amicus brief, access the link below NSBA.]
[NSBA School Law pages on Garcetti v. Ceballos]