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Ricioppo v. County of Suffolk

March 4, 2009


The opinion of the court was delivered by: Hurley, Senior District Judge


Plaintiff Ercole Ricioppo ("Plaintiff" or "Ricioppo") commenced this action on August 23, 2004 against Defendants County of Suffolk ("County"); Suffolk County Community College (the "College"); the Board of Trustees of Suffolk County Community College ("Board"); Michael Hollander ("Hollander"); Brian Foley ("Foley"); Vivian Fisher ("Fisher"); Eric Kopp ("Kopp"); and Anthony Appolaro ("Appolaro")*fn1 alleging claims pursuant to 42 U.S.C. § 1983 ("§ 1983"), 42 U.S.C. § 1985 ("§ 1985"), and New York State common law. Specifically, Plaintiff alleges that Defendants violated his right to free speech, equal protection, and due process, conspired to violate his constitutional rights, and breached their contractual obligations pursuant to New York common law. Presently before the Court are motions for summary judgment by Hollander and the County Defendants. For the reasons set forth below, the motions are granted.


The following facts are undisputed unless otherwise noted.

Plaintiff is a resident of Nassau County, New York. The County is a municipal corporation existing pursuant to the laws of New York. The College is an institution of higher-learning, maintained and operated by the County. The Board is the duly appointed or elected body that constitutes the legally responsible authority of the College. Hollander became a Trustee of the College in 1996; he served as Chairman of the Board from 2002 to 2004. Foley and Fisher were elected legislators of the County, while Kopp and Appolaro served as Chief Deputy County Executive and Assistant Deputy County Executive, respectively.

Under New York law, the duties of the President of the College include the formulation and presentation to the Board, for their action, recommendations on "personnel appointments, promotions, tenure, retention and retrenchment . . . ." See 8 N.Y.C.R.R. § 604.3(b). By letter dated August 25, 1995, Plaintiff was advised that the Board approved Plaintiff's appointment as Vice President for College and Community Relations effective September 1, 1995. Plaintiff accepted the appointment. By letter dated June 27, 1996, Plaintiff was advised that the Board approved a one-year term appointment as Assistant Professor of Communications/Vice President for College and Community Relations, effective September 1996. Again, Plaintiff accepted the assignment. In January 1997, Plaintiff received notice of and accepted the Board's one-year term appointment, effective September 1, 1997, at the rank of Assistant Professor Communications.*fn2 In the summer of 1998, Plaintiff received notice of and accepted an appointment "as Vice President for Marketing and Public Affairs, effective September 1, 1998." (Ex. F to Decl. of Chris P. Termini ("Termini Decl.").)*fn3 He remained in that position until it was abolished effective June 1, 2003 pursuant to resolution of the Board, dated May 9, 2003, which resolution adopted the reorganization plan of non-academic areas proposed by the College's then President Salvatore J. LaLima ("LaLima"). As a vice president, Plaintiff served as an exempt, administrative employee*fn4 and was not a member of any collective bargaining unit.

The College has promulgated a "Status and Benefits Handbook" (the "Handbook") for exempt employees "to enable present and future exempt employees to be aware of their rights and benefits." ( Handbook at 2 (the Handbook is Ex. C to the Termini Decl.).) The Handbook, dated November 1982, also provides that: "[i]t should be understood that what follows is a guide and does not substitute for the existing practice. Every attempt has been made to be comprehensive and to correctly state the current practice. The Trustees shall retain the power to change these personnel policies as they deem appropriate." (Id. at 3.) The Handbook's enumeration of exempt titles includes that of vice president. (See id. at 1.) According to the Handbook, "Administrative Officers entering their sixth year of employment with the College shall be granted continuing appointment. Prior to being given continuing appointment, employees shall be considered on probationary status. . . . The services of employees who have been granted a continuing appointment may be terminated at any time for just cause." (Id. at 6.) The handbook also provides that "Administrative Officers are eligible for a sabbatical leave after six (6) years of continuous service. No more than one such sabbatical shall be awarded per year." Administrative Officers "are appointed with academic rank and faculty status and shall retain such along with all attendant rights and benefits" and "[u]pon request made on or after January 1, an Administrative Officer will be granted an assignment the following academic year as a classroom instructor, counselor, librarian or technical assistant provided that a vacancy exists or arises in his/her discipline." (Id. at 4-5.)

The parties agree that a "continuing appointment is akin to tenure customarily granted to faculty members of an educational institution." (Hollander's 56.1 Statement ¶21; Pl.'s 56.1 Counterstatement ¶21.) It is undisputed that LaLima never recommended Plaintiff for a continuing appointment and because of the absence of such a recommendation, the Board never granted Plaintiff a continuing appointment. As is discussed more fully infra, Plaintiff disputes that a continuing appointment could only be granted upon a recommendation from the College's president; Plaintiff maintains he automatically received a continuing appointment when he commenced his sixth year of employment at the College. (Pl's Mem. at 11-12.)

In the Spring of 2001, Plaintiff informed LaLima of his desire to be granted a sabbatical for the purpose of completing his doctoral dissertation. A resolution for the sabbatical was presented by LaLima to the Board, which failed to approve it. Hollander abstained from the vote. Subsequent to the denial of Plaintiff's sabbatical request, LaLima adjusted Plaintiff's work schedule for the period January through March 2002 in order to provide him the needed time to research, write and defend his dissertation. Plaintiff completed his dissertation in March 2002.

By letter dated May 5, 2003 LaLima recommended to the Board the reorganization of certain non-academic areas of the College's operations, including Community Relations, Governmental Relations and Marketing, areas which were within Plaintiff's job duties and functions during his employment with the College.*fn5 In that letter, LaLima requested the Board act expeditiously so that he could proceed with the necessary personnel changes by June 1, 2003, providing the summer months for staff to adjust to the recommended changes. (Termini Decl. Ex. H.)

La Lima's reorganization proposal included the creation of the office of "Institutional Advancement," headed up by a vice president or an executive director who would report directly to the president and would take on full responsibility for all fund raising campaigns, grants, alumni affairs and community relations. LaLima also made a number of other recommendations. With respect to the areas within Plaintiff's job duties, LaLima recommended that community and governmental relations no longer be combined with marketing operations as they needed much closer attention. Under LaLima's proposal, community relations would be coordinated by the individual in charge of the newly created Institutional Advancement office and governmental relations would be the responsibility of the president's executive assistant. With community and governmental relations reassigned to others, the duties of vice president for marketing and public affairs would be significantly reduced. Hence, LaLima recommended that position be replaced with a narrower management position titled "Administrative Director of Marketing Services" which would report to the executive director for enrollment management. La Lima's proposal further recommended that "the incumbent vice president be given the opportunity to apply for the new position of 'Administrative Director of Marketing Services' . . . [a] position . . . three pay grades lower than that of vice president which is commensurate with the reduced responsibilities." (Termini Declar, Ex. H at 3.)

Prior to taking any action, LaLima and the Board sought and elicited opinions from the College's Vice President for Legal, Planning and Information Services and the Suffolk County Attorney's Office concerning "the legal issues associated with the intended termination of an exempt (managerial-confidential, non-union) employee." (Memorandum to LaLima from Vice President for Legal, Planning and Information Services (Ex. G to Hollander Aff.); see also Memorandum to Hollander from Suffolk County Attorney (Ex. H to Hollander Aff.)). Hollander, and presumably the entire Board, was advised that Plaintiff could be terminated. According to the written memorandum of the College's vice president for legal affairs, Plaintiff was "an at-will employee in the administrative position with no rights to transfer to an academic position. An at-will employee has no right to a hearing prior to dismissal, nor does cause have to be shown." (Memorandum to La Lima from Vice President for Legal, Planning and Information Services (Ex. G to Hollander Aff.). ) The Suffolk County Attorney also issued a written opinion in which he stated that "absent the entitlement to the protections afforded by a collective bargaining agreement or other proof that continuing employment or tenure has been granted, managerial-confidential employees serve at the will of the Board of Trustees" and that he concurred in the opinion of the College's vice president. (Memorandum to Hollander from Suffolk County Attorney (Ex. H to Hollander Aff.). ) Plaintiff disputes the validity of these opinions.

The Board approved the reorganization plan. (See Ex. I toTermini Declar.) Plaintiff did not receive the newly created position of administrative director of marketing services. According to LaLima, Hollander advised him that since LaLima's successor had been selected, the incoming president-designate would select the candidates to fill the new positions recognizing that they would eventually be working in her administration. Nor did Plaintiff receive an academic appointment although he states that he requested that he be transferred to another vacant position as a member of the Communication Arts faculty.

According to Plaintiff, the elimination of his position and his termination was the culmination of retaliatory acts undertaken by Defendants as a result of Plaintiff's criticism and opposition of "certain practices and opinions undertaken and expressed by the Office of the Suffolk County Executive, including Defendants Kopp and Appolaro, certain members of the Suffolk County Legislature, including Defendants Foley and Fisher, Defendant Hollander and other members of Defendant Board as it related to [the College's] affairs." (Ricioppo Aff. ¶ 22.) The other retaliatory acts include: (1) members of the Legislature, including Foley and Fischer, "made false allegation' against [him] and caused [his] alleged conduct to be the subject of inquiry by the county legislature; (2) beginning in 2001, Fischer "publicly berated" him; (3) his request for a sabbatical was improperly denied, with Foley and Fischer attending the Trustees' meeting and lobbying against it; (4) in or about September 2001, Hollander and the Board "sought to have the President of [the college] impose an unprecedented Peer Review of [Plaintiff]"; (5) in April 2003, Hollander moved to usurp Plaintiff's "role as College spokesperson . . . [and] directed [Plaintiff] not [to] have any more contact with the media and that [Plaintiff's] subordinates were to deal with him - Defendant Hollander;" and (6) in April 2003, Hollander had Plaintiff removed from the College President's retirement party committee. (Id. ¶¶ 45-52.)

Plaintiff offers the following "speech" as causing the retaliatory conduct:

1. The Use of Suffolk Life

Beginning in 1997 Plaintiff used a newspaper entitled "Suffolk Life" to distribute the College's course material and to otherwise publicize the college. Suffolk Life had a strained relationship with the office of the County Executive and certain legislators, including Foley and Fischer. Although the use of Suffolk Life to promote the college went well, in August 1999 Plaintiff was summoned to a meeting in the Office of the County Executive at which Kopp and Appolaro and two College Board members were present and told to eliminate advertising in Suffolk Life. Despite Plaintiff's objection, he was directed to curtail advertising because the College needed the County Executive's support. Plaintiff "then curtailed some advertising in 'Suffolk Life' but continued using it to distribute the course schedule." In January 2000 Plaintiff learned through a conversation with one "Sally Slack" that Kopp and Appolaro continued to be annoyed that the course schedules were appearing in Suffolk Life. In August 2000, a legislative meeting was held at the College and legislator Paul Tonna stated, in Plaintiff's presence as well as the presence of some Trustees, that if the College did not cease advertising in Suffolk Life its marketing budget would be withheld. Plaintiff "voiced my strong displeasure to Legislator Tonna and told him that [he, Plaintiff,] on behalf of [the College] should be able to market the College the way [he] saw fit." Because of the pressure placed on the College by the Office of the County Executive and despite Plaintiff's objections, Plaintiff was forced to cease all operations with Suffolk Life. (Ricioppo Aff. ¶¶ 23-32.)

2. New York Sports Scene

In August 2002, Plaintiff was "vocal in opposing the wishes of Defendant Hollander to have the College advertise in New York Sports Scene, a publication published by Hollander's personal friend." Plaintiff told Hollander that advertising in that publication "would be an improper use of public funds and would not benefit [the College]. (Id. ¶¶ 33-34.)

3. Criticism of Hollander

Plaintiff states that he expressly and publicly criticized other practices of Hollander, "including usurping authority, including that of the President of [the College]; and functioning in a way that was outside his authority as a member of Defendant board and for engaging in unethical and illegal actions." Plaintiff provides only the following examples. Hollander directed Plaintiff to join the Long Island Convention and Tourism Bureau, which membership was not budgeted and, according to Plaintiff, would provide no benefit to the College. Plaintiff publicly opposed Hollander's direction to place an advertisement in a charity journal that Hollander's wife had an interest in. Plaintiff states he was also critical of Hollander's spending techniques - Hollander directed college personnel to spend money, directions which were outside his jurisdiction as a single Trustee. For example, Hollander directed an College employee to purchase a printer for the College Library and the repair of equipment at the Western Campus of the College. (Id. ¶¶ 35-39.)

4. Miscellaneous Matters

Plaintiff asserts that he "was also publicly at odds with certain faculty Unions; while Defendant Hollander, the Suffolk County Executive's office and certain legislators, including Defendants Foley and Fischer, sought to promote the Unions' interest. In fact, during 1998-1999 Defendant Foley had publicly clashed with [Plaintiff] because [Foley] wanted to remove the College's marketing budget and earmark the money to hire new faculty." Further, "at the same time [he] opposed certain practices and opinions, [Plaintiff] refused to participate in the questionable and unlawful activities, despite being asked to do so by enumerated individual Defendants." (Id. ¶¶ 42-43.) Plaintiff does not, however, specifically identify the referenced "practices and opinions" or "unlawful activities." (See id.)

5. The May 2, 2003 Memo

Plaintiff also points to a May 2, 2003 memorandum he wrote to LaPima.*fn6 In that Memorandum, Plaintiff refers to Hollander's orchestration of a plan to remove Plaintiff allegedly in retaliation for Plaintiff's refusal to place the advertisement in Hollander's friend's magazine, and Plaintiff's "attempts to prevent unethical and illegal actions" of Hollander at the College's Health, Sports, and Education Center.


I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). "Rule 56(e)'s requirement that the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,183 F.3d 155, 160 (2d Cir. 1999)).

When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.

A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide the district court in its determination of a summary judgment motion. See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. See id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).

In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). That being said, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. See Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).

Finally, the Court notes that a party's burden on summary judgment is not satisfied by the wholesale submission of depositions and documents. Rather, it is incumbent upon the parties to particularly direct a court's attention to the specific portion of a deposition or specific document that it wishes a court to consider. Concomittantly, it is only those portions of the record submitted in connection with a motion to which the court's attention is specifically directed, that the court is obligated to consider in determining whether a material issue of fact exists. In other words, a court is not obligated to hunt through depositions, submitted in bulk, in an effort to identify factual disputes. "[I]t is the duty of the parties, not the court, to sift through the record and bring to the court's attention the pertinent information that may create or defeat a triable issue of fact." McDonald v. Gonzales, 2007 WL 951445, *4 (N.D.N.Y. Mar. 27, 2007) (citing Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002); Monahan v. N.Y. City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)); see also Downes v. Beach, 587 F.2d 469, 472 (10th Cir.1978) ("While the trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of granting a summary judgment motion, it is not required to consider what the parties fail to point out.").

II. The Claims Against Kopp and Appolaro

Prior to addressing the substantive challenges posed by Defendants to Plaintiff's claims, the Court shall address the contention of Defendants Kopp and Appolaro that the statute of limitations bars the claims against them.

Kopp and Appolaro argue that because the statute of limitations for §1983 and §1985 claims is three years, see Paige v. Police Dep't of Schnectady, 264 F.3d 197, 199 n.2 (2d Cir. 2001) and the only conduct allegedly engaged by them occurred in 1999, more than three years prior to the filing of the instant action on August 23, 2004, the claims against them should be dismissed on statute of limitations grounds. Plaintiff responds that because he experienced "a continuous practice and policy of discrimination" he can bring suit challenging all conduct that was part of the pattern, even conduct that occurred outside the limitations period. " (Pl. Opp. Mem. at 22.)

The Court need not reach the statute of limitations argument, however, because there is no evidence, or even any allegation in the complaint, that Kopp or Appolaro participated in any of the alleged acts of harassment or retaliation and that deficiency provides an independent basis for awarding them summary judgment.

In order to make a claim for individual liability under § 1983, there must be personal involvement. Patterson, 375 F.3d at 229; Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006) (to establish First Amendment retaliation claim, plaintiff "must show each defendant ' was personally involved . . . in the alleged constitutional deprivations.'") (ellipses in original) (citing Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005)). Personal involvement requires a demonstration of "some affirmative link to causally connect the actor" with the claimed violation. Patterson, 375 F.3d at 229 (citing Whidbee v. Garzarelli Food Scpeialities, Inc., 223 F.3d 62, 75 (2d Cir. 2000)).

The only factual allegations contained in the complaint with respect to Defendants Kopp and Appolaro are as follows. Plaintiff met with them in August 1999 at which time Kopp "expressed anger and annoyance at Suffolk Life's continued criticism of the Suffolk County Executive and directed Plaintiff to eliminate the advertising with Suffolk Life" and Plaintiff refused to eliminate the advertising. (Compl. ¶ 36-37.) Plaintiff was directed by the Board to curtail advertising because the College needed the County Executive's Support. Plaintiff curtailed some advertising but continued using Suffolk Life to distribute the course schedule and "[i]n or about January2000, Plaintiff learned . . . that Defendants Kopp and Appolaro continued to be annoyed that the course schedules were still appearing in Suffolk Life." (Compl. ¶ 40.)

"Because of the pressure placed upon Defendant SCC by the Office of the County Executive and members of the Legislature, Plaintiff, despite his objections, was forced to cease all operations with Suffolk Life. (Compl. ¶ 42.) These same allegations are repeated in Ricioppo's affidavit. See Ricioppo Aff. at 26 - 32. While the Complaint (as well as Ricioppo's affidavit) goes on to assert that "in direct response to Plaintiff's exercise of his protected rights, Defendants undertook a pattern of harassing and undermining Plaintiff's position," not one of the enumerated acts is alleged to have been perpetrated by either Kopp or Appolaro. (See Compl. ¶¶ 56-64; Ricioppo Aff. ¶¶ 44-53.) There being no causal link between the actions of Kopp or Appolaro and the claimed violation, the requirement of personal involvement has not been met.

The motion of Kopp and Appolaro for summary judgment is granted.

III. First Amendment Claims

In order to establish a First Amendment retaliation claim, an employee must prove that: "(1) [he] engaged in constitutionally protected speech . . .; (2) [he] suffered an adverse employment action; and (3) the speech was a 'motivating factor' in the adverse employment decision." Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006), overruled on other grounds, Appel v. Spiridon, 531 F.3d 138, 139 (2d Cir. 2008). In determining whether a public employee engaged in constitutionally protected speech, a court must determine "whether the employee spoke as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). "If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Id. If the answer is yes, a court must then determine "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id.; see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008).

The courts have recognized that while the First Amendment protects employees' speech in certain circumstances, it does not permit employees to "constitutionalize the employee grievance." Garcetti, 547 U.S. at 418. "Although a public employee 'does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment,' these rights are not absolute, because the public employer has a legitimate interest in regulating the speech of its employees to promote the efficiency of its public services. Mandell v. County of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003) (citing Connick v. Myers, 461 U.S. 138, 140 (1983)); see also Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) ("A government entity has broader discretion to restrict speech when it acts ...

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