Drolett v. DeMarco

07-3221-cv

Drolett v. DeMarco

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order

filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate

Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document

filed with this court, a party must cite either the Federal Appendix or an electronic database (with

the notation “summary order”). A party citing a summary order must serve a copy of it on any

party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on

the 16th day of June, two thousand ten.

Present:

JOSÉ A. CABRANES,

REENA RAGGI,

PETER W. HALL,

Circuit Judges.

_______________________________________

R. JAY DROLETT ,

Plaintiff-Appellee,

-v.- No. 07-3221-cv

EDWARD J. DE MARCO , JR ., RICHARD SHERMAN , LINDA SINISGALLO ,

MARK SIMMONS, LORRAINE DE VANNEY , JAMES BARTON AND TOWN OF EAST WINDSOR ,

Defendants-Appellants.

_______________________________________

FOR APPELLEE: MARC P. MERCIER (Kathleen Eldergill, on the brief), Beck &

Eldergill, P.C., Manchester, CT.

FOR APPELLANT: JOSHUA A. HAWKS-LADDS, Pullman & Comley, LLC (Scott M.

Karsten, Karsten, Dorman, & Tallberg, on the brief) Hartford, CT.

Appeal from an order of the United States District Court for the District of Connecticut (Janet C. Hall,

Judge).

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UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED the order of the District Court is REVERSED.

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 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 plaintiff’s 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, 129 S. Ct. 808, 818 (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 (2001)).

Here, we move immediately to the second step of the qualified immunity analysis. We therefore

consider whether plaintiff’s 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

(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. 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 Drolett’s First Amendment rights, those rights were not clearly established at the time of the

discipline. Accordingly, we conclude that defendants are entitled to qualified immunity.

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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.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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