Drolett v. DeMarco

SUMMARY ORDER Defendants Edward J. DeMarco, Jr., Richard Sherman, Linda Sinisgallo, Lorraine DeVanney, James Barton, Town of East Windsor, and Mark Simmons (collectively, “defendants”) appeal from a June 26, 2007, 2007 WL 1851102, order of the District Court denying their motion for summary judgment on the basis of qualified immunity. We assume the parties’ familiarity with the facts and procedural history of this case. Under the collateral order doctrine, we have jurisdiction to review a denial of qualified immunity “to the extent that the district court has denied the motion as a matter of law.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir.2003). We review the District Court’s denial of qualified immunity de novo. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). In deciding whether to grant a government official’s motion for summary judgment on qualified immunity grounds, we first consider whether the official’s conduct violated a constitutional right. See Gilles v. Repicky, 511 F.3d 239, 244 (2d Cir.2007). If a plaintiffs rights were violated, we then decide whether the right at issue was “clearly established” at the time of the official’s alleged misconduct. See Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). “If the conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the [official] to believe that his conduct did not violate such a right, then the [official] is protected by qualified immunity.” Gilles, 511 F.3d at 244. In determining if qualified immunity should be granted, we may consider first either step of the two-step inquiry. See Pearson, 129 S.Ct. at 821 (abrogating in part Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Here, we move immediately to the second step of the qualified immunity analysis. We therefore consider whether plaintiffs rights were “clearly established” at the time defendants disciplined Drolett. In Garcetti v. Ceballos, the Supreme Court held that speech of a public employee is not protected by the First Amendment if that speech was made pursuant to the employee’s official duties. 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Here, though Drolett had a duty to raise his concerns about the management of the police department within the chain of command, he did not do so. Instead, he raised his concerns outside the chain of command. Had Drolett raised his concerns within the chain of command, that speech likely would have been made “pursuant to [his] official duties,” and therefore not protected by the First Amendment. See Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. The courts have yet to consider whether speech that would not enjoy First Amendment protection if made pursuant to an official duty can claim such protection when made in violation of that duty. We therefore conclude that even if the actions of defendants did violate Dro-lett’s First Amendment rights, those rights were not clearly established at the time of *9 the discipline. Accordingly, we conclude that defendants are entitled to qualified immunity. CONCLUSION For the reasons stated above, the June 22, 2007 order of the District Court is REVERSED and the cause is REMANDED to the District Court for the entry of judgment in favor of defendants.