The full case caption appears at the
end of this opinion. MINER, Circuit Judge: Plaintiff-Appellant Monroe Hale (“Hale”) appeals from a summary judgment in favor of the defendants-appellees, TheState of New York Office of Children and Family Services (“OCFS”) and Louis Mann (“Mann”), a DeputyCommissioner in OCFS, entered in the United States District Court for the Southern District of New York (Brieant, J).In 1998, Hale was terminated from his position as Youth Facility Director (“Director”) of the New York Secure Center inGoshen, New York (“Goshen Facility”). He subsequently brought suit alleging that he had been fired in violation of hisrights under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. � 2601 et seq., and the First Amendment.
[FOOTNOTE 1] On February 25, 1999, the district court granted the defendants’ motions for summary judgment, concluding thatHale’s post-FMLA leave firing did not violate the FMLA and that Hale’s firing was not motivated by any protected speechon his part. For the reasons that follow, we affirm in part, vacate in part, and remand for further proceedings consistent with thisopinion. BACKGROUND In 1991, Hale was hired as Director of the Goshen Facility, an 85-bed residential youth facility operated by OCFS.OCFS’ responsibilities include providing care, treatment, and security for offenders placed in its custody by the courts.At all times pertinent to this appeal, the Goshen Facility housed male juvenile delinquents. As Director, Hale served in apolicy influencing position held at the pleasure of the Governor and was responsible for the administration andmanagement of the Goshen Facility, including its effective implementation of safety and security measures. Hale’sposition also required him to establish a relationship with the community and seek to maintain “harmonious communityrelations.” According to Hale, conditions at the Goshen Facility were in disarray when he took over; the staff did not feel safe, andassaults on the residents and staff were common. After Hale assumed his duties, funding for the Goshen Facilitydecreased and the residents became more violent, thus prompting increased security concerns. Starting in 1995, OCFS began to alter the procedures employed at the Goshen Facility. OCFS contends that it wasHale’s failure to implement these procedures which led to continued breakdowns in security and Hale’s eventualtermination as Director. On the other hand, Hale contends that OCFS policies led to problems at the Goshen Facilityand that his discharge was due to his objections to OCFS’ misguided policies. In any event, all seem to agree thatconditions at the Goshen Facility had become less than desirable by late 1997 – numerous security breakdowns andaltercations among the residents were occurring at that time. In January 1997, OCFS personnel conducted an unannounced search of the Goshen Facility as part of an “effort toaddress the management and safety issues” that were arising at the Facility. OCFS asserts that numerous problemswere discovered: the presence of contraband – sharp metal and cash in resident’s rooms and tools and screws in thevocational area; the room designated as the “key room” was in disarray; and residents possessed gang-relatedmaterial. Moreover, OCFS personnel observed that uncooperative residents were allowed out of their roomsunaccompanied by staff, potentially leading to assaults. The search also revealed concerns about cleanliness, the jobperformance of one of Hale’s assistants, and overall lack of supervision. Due to the results of this search, one ofDeputy Commissioner Mann’s assistants, Brenda Flanagan (“Flanagan”), spoke with Hale. Mann, via Flanagan,directed Hale to initiate new policies at the Goshen Facility. In particular, Mann asserted that Wing 1 should no longerbe used to counsel disruptive residents, but should instead be used only for residents restricted to in-roomconfinement. The defendants assert that Hale failed to carry out their policies and initiatives for dealing with theseproblems. On September 20, 1997, an affray broke out at the Goshen Facility, injuring staff. The fracas generated negative presscoverage concerning violence at the Facility, prompting political debate about conditions there. By letter datedSeptember 23, 1997, Robert P. Pollack, one of Mann’s subordinates, informed Hale that Mann wanted Hale to conductan investigation into the September 20, 1997 incident. Seeking to respond to Mann’s request, Hale asked a staffmember, Stephen Langbein, to investigate and report. Langbein’s investigation revealed that “agency policies and practices, adopted and implemented by . . . Mann, hadsignificantly contributed to a decline in staff safety.” Hale Affidavit at 19. Langbein’s written report highlighted a factorthat Hale had indicated to his superiors was contributing to the unsafe conditions at the Goshen Facility: OCFS’ failureto deal “with some of the most volatile, aggressive youths in the state.” The report was specifically critical of policychanges established by Mann with regard to the use of Wing 1 at the Goshen Facility. It recommended that OCFSpermit the staff at the Goshen Facility to resume their prior use of Wing 1 for counseling disruptive residents. Thereport also questioned OCFS’ policy with regard to youths over the age of eighteen. In response to a previously submitted incident report, the Commission of Correction (“Commission”),
[FOOTNOTE 2] by letter datedOctober 6, 1997, requested (1) the investigative report regarding the September 20, 1997 incident; (2) a breakdown ofall incidents at the Goshen Facility between January and October of 1997; and (3) the number of residents moved tojail as a result of the incident. Langbein had submitted his report to Hale via an October 20, 1997 memorandum. Byletter dated November 10, 1997, Hale submitted the report to Steve Mann (“S. Mann”), one of Mann’s subordinates.Aware of the ongoing public debate over safety at the Goshen Facility, and presumably in response to theCommission’s prior request, Hale appears to have also sent a copy of the report to the Commission. By letter dated November 24, 1997, S. Mann wrote Hale that Langbein’s report was unacceptable because it made”numerous editorial comments” and included “thoughts and concerns” as opposed to containing “only factualinformation.” Hale asserts that his superiors were hostile to the “thoughts and concerns” expressed in the Langbeinreport, which reflected Hale’s views as conveyed in prior letters to his supervisors
[FOOTNOTE 3] and in discussions with Langbein,and that he forwarded the report because he wanted to let the Commission and others know “what really washappening at the facility.” According to Hale, the views expressed in the report addressed matters that were commonto all OCFS facilities. Apparently upset about the content of the report that Hale sent to the Commission, S. Mann told Hale that he shouldhave first forwarded the report to central administration. S. Mann further stated that Hale was “this close” (while holdinghis fingers approximately one inch apart) to not having a job. According to Hale, this was the first time that he wasthreatened with termination, and it occurred immediately after “Mann became incensed with [Hale's] reporting theSeptember 20, 1997 incident to the Commission on Corrections.” In December 1997, Hale took sick leave for job-related stress. After Hale began his stress-related leave, S. Manndetermined that Hale would be considered on FMLA leave as of January 1, 1998. Concerned about what was perceived as the continuing problems of the Goshen Facility, OCFS conducted anotherunannounced search of the Goshen Facility on January 13 and 14, 1998. Because of his leave, Hale was absent fromthe Goshen Facility at the time this search occurred. It had been approximately six weeks since he had taken sickleave. According to Hale, the search did not result in any disciplinary measures against other staff members, nor wereany weapons or illegal contraband found. However, the defendants contend that the search revealed that “Goshen wasstill ‘dirty’ ‘unkempt’ and ‘disorganized’ . . . , and contraband was abundant both in common areas and the residents’rooms.” Allegedly because of his dismay over the results of this search, Mann subsequently stated to Flanagan that Hale “hadto go” and by letter dated January 15, 1998 informed Hale that he was terminated as Facility Director, effective January21, 1998. After objections by Hale’s attorney and Flanagan concerning Hale’s FMLA status, Mann changed theeffective date of termination to March 25, 1998, the date when Hale’s FMLA leave expired. Because he held a tenuredstatus with OCFS, Hale’s termination resulted in demotion, and he subsequently was reassigned to an inferior job,with a lower salary and fewer responsibilities, in New York City, far from his home. On March 2, 1998, Hale brought suit alleging that his FMLA and First Amendment rights had been violated by histermination as Director. In its answer, OCFS invoked the doctrine of sovereign immunity with regard to the FMLAclaim. At the close of discovery, OCFS and Mann moved for summary judgment, asserting that Hale’s claims werewithout merit and that defendant Mann was entitled to qualified immunity in any event with regard to the FirstAmendment claim. The district court granted the defendants’ motion on February 25, 1999, finding no genuine issue ofmaterial fact as to either claim. With respect to the FMLA claim, the court held that the statute does not preventtermination following the completion of FMLA leave:
The right to be employed during the FMLA leave period extends to protect an employee’s benefits and salary during the leave period. This Mr. Hale received. The statute does not prevent his termination following the completion of his leave where, as here, he holds a noncompetitive policy position with no expectation of permanent employment, and defendants articulate a nonpretextual reason for his removal based on events which occurred prior to his going on leave. The statute gives no greater job security than that to which the employee would have been entitled prior to taking leave.
The court also rejected Hale’s First Amendment claim, noting that the Langbein report was not prepared by Hale andthat Langbein, himself an OCFS employee, had not been subjected to retaliation. The court concluded that “there[wa]s no evidence that his First Amendment rights to speak out on matters of public concern were a motivating factorin his demotion.” Because the court found no evidence to support a jury finding in favor of Hale’s claims, the courtfound it unnecessary to reach Mann’s qualified immunity defense. This appeal followed. DISCUSSION Summary judgment is only appropriate when the moving party shows that there are no genuine issues of material factand that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R.Civ. P. 56(c). Applying a de novo review on appeal, we “must view the evidence in the light most favorable to thenon�moving party and draw all reasonable inferences in its favor” to determine whether the district court’s grant ofsummary judgment was proper. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993); seeTurner v. General Motors Acceptance Corp., 180 F.3d 451, 453�54 (2d Cir. 1999); Stagl v. Delta Airlines, Inc., 52 F.3d463, 466�67 (2d Cir. 1995). The FMLA Claim Before discussing Hale’s contentions under the FMLA, we must address OCFS’ contention that it is entitled toEleventh Amendment immunity from suit under the FMLA. This assertion of sovereign immunity implicatesjurisdictional concerns. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73 (1996) (the Eleventh Amendment”restricts the judicial power under Article III”); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)(the jurisdictional bar of Eleventh Amendment applies regardless of the nature of the relief sought); cf. United States v.Sherwood, 312 U.S. 584, 586 (1941) (“[T]he terms of [the United States'] consent to be sued in any court define thatcourt’s jurisdiction to entertain the suit.”). But see Parella v. Retirement Bd. of the Rhode Island Employees’ Ret. Sys.,173 F.3d 46, 53-57 (1st Cir. 1999) (finding that assertion of Eleventh Amendment immunity does not implicate Article IIIjurisdiction); cf. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (finding that Eleventh Amendmentimmunity may be waived), superseded in other respects by Civil Rights Remedies Equalization Amendment of 1986,42 U.S.C. � 2000d-7. Our review of the Eleventh Amendment issue is de novo. See Muller v. Costello, 187 F.3d 298,307 (2d Cir. 1999). In Seminole Tribe, the Supreme Court articulated a two-part test for determining whether an act of Congressabrogates states’ Eleventh Amendment immunity. The test asks (1) whether Congress has unequivocally declared anintent to abrogate states’ immunities and (2) whether Congress has acted pursuant to a valid exercise of its power.See 517 U.S. at 55. Both the FMLA and the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C � 201 et seq., provide that an action maybe maintained for violations of each respective statute “against any employer (including a public agency) in anyFederal or State court of competent jurisdiction.” 29 U.S.C. � 216(b); 29 U.S.C. � 2617(a)(2). Congress’ use of thisidentical language from the FLSA in the later passed FMLA causes us to turn to our interpretation of Congress’abrogation intent in Close v. New York, 125 F.3d 31, 36 (2d Cir. 1997). In Close, we held that this language in theFLSA evidenced “a clear intent to abrogate the States’ sovereign immunity by allowing suit in federal courts.” Id. Weare convinced that Congress’ use of the same language in the FMLA similarly reveals a clear intent to abrogateEleventh Amendment immunity and thus satisfies the first prong of the Seminole Tribe test. See McGregor v. Goord,18 F. Supp.2d 204, 207 (N.D.N.Y. 1998). However, the second prong is more problematic. After Seminole Tribe, the only potential source for congressionalabrogation is the Fourteenth Amendment. See Close, 125 F.3d at 37-38. As we recently explained in Muller, 187 F.3dat 308, Section 5 of the Fourteenth Amendment empowers Congress to enact appropriate legislation to enforce its substantive provisions, including the Equal Protection Clause. A statute is appropriate legislation to enforce the Equal Protection clause if it is plainly adapted to that end and if it is not prohibited by but is consistent with the letter and spirit of the Constitution. Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) . . . [H]owever, . . . Congress’s power under � 5 must be linked to constitutional injuries and there must be a “congruence and proportionality” between the harms to be prevented and the statutory remedy. [City of Boerne v. Flores, 521 U.S. 507, 520 (1997)]. This “proportionality” analysis has been further refined by Florida Prepaid Postsecondary Education Expense Board [v. College Savings Bank]: “for Congress to invoke � 5, it must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” 119 S.Ct. [2199,] 2207 [(1999)]. (some internal quotation marks, alterations, and footnotes omitted). In the opening section of the FMLA, Congress found that “due to the nature of the roles of men and women in oursociety, the primary responsibility for family caretaking often falls on women, and such responsibility affects theworking lives of women more than it affects the working lives of men.” 29 U.S.C. � 2601(a)(5). Congress further foundthat “there is inadequate job security for employees who have serious health conditions that prevent them fromworking for temporary periods,” id. � 2601(a)(4), and that “employment standards that apply to one gender only haveserious potential for encouraging employers to discriminate against employees and applicants for employment whoare of that gender,” id. � 2601(a)(6). In light of these findings, Congress passed the FMLA:
(1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (3) to accomplish the purposes described in paragraphs (1) and (2) in a manner that accommodates the legitimate interests of employers; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity�related disability) and for compelling family reasons, on a gender�neutral basis; and (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause.
29 U.S.C. � 2601(b). The FMLA generally requires covered employers to grant employees who have worked for twelve months (or 1250hours in twelve months) up to twelve weeks’ leave during any twelve month period for, inter alia, “a serious healthcondition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. �2612(a)(1)(D). It also protects an employee from discharge or demotion by an employer if that action is motivated bythe employee’s taking of leave pursuant to the FMLA. See 29 U.S.C. � 2614(a)(1); see e.g., Chaffin v. John H. CarterCo., 179 F.3d 316, 319 (5th Cir. 1999). These are the rights articulated in the FMLA that are at issue here. The question before us is whether this grant of twelve weeks’ leave to deal with one’s own serious health condition is”congruent” and “proportional” to the goal of allowing family leave while “minimiz[ing] the potential for employmentdiscrimination on the basis of sex.” 29 U.S.C. � 2601(b)(4). We are compelled to answer in the negative. Werecognize that it is for Congress to assess in the first instance what legislation is needed to secure the rightsguaranteed by the Fourteenth Amendment and that in order “to deter violation of rights guaranteed thereunder,”Congress may “prohibit[ ] a somewhat broader swath of conduct.” Kimel v. Florida Bd. of Regents, 120 S. Ct. 631,644 (2000). However, the legislation here sweeps too wide. In the final analysis, the insurmountable hurdle in this caseis the entirely gender-neutral focus of the rights conferred by the FMLA provisions at issue. In light of Congress’ failure to specifically find that women are disproportionately affected by “serious healthconditions,” this gender-neutral grant of leave is overbroad. There is no evidence that this conferment of federallyprotected leave is tailored to remedy sex-based employment discrimination. Instead, it seems grossly incongruent anddisproportionate to try to remedy intentional sex discrimination with a statute that, in the words of the Seventh Circuit,”creates substantive rights” and “statutory entitlements” that do not permit an employer to “defend by saying that ittreated all employees identically.” Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711, 712 (7th Cir. 1997). By making a”substantive change” in state employees’ rights, Congress has exceeded its power to “remedy or preventunconstitutional actions.” City of Boerne, 521 U.S. at 519; see also id. at 527 (“Any suggestion that Congress has asubstantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.”). The rightsconferred by the FMLA in this case are “so out of proportion to a supposed remedial or preventive object that it cannotbe understood as responsive to, or designed to prevent, unconstitutional behavior.” Id. at 532. Moreover, “[s]erious health conditions are not necessarily related to family and gender discrimination.” Garrett v.University of Alabama at Birmingham Bd. of Trus., 193 F.3d 1214, 1220 (11th Cir. 1999), cert. granted in part, 120 S.Ct. 1669 (2000). While the Court has “acknowledge[d] the necessity of using strong remedial and preventivemeasures to respond to . . . racial discrimination,” these measures have often been supported by direct and tangibleevidence that they were necessary to prevent the harm sought to be prevented. City of Boerne, 521 U.S. at 526;compare Oregon v. Mitchell, 400 U.S. 112, 132 (1970) (“Congress had before it a long history of the discriminatoryuse of literacy tests to disenfranchise voters on account of their race.”) (Black, J., announcing the judgment of theCourt and concurring), superseded in respect to minimum age by U.S. Const. amend. XXVI. Thus, we find that Congress did not have the authority to abrogate the sovereign immunity of the states on claimsarising under the provisions at issue here. Its attempt to do so was not congruent or proportional to the harms targetedby the Fourteenth Amendment. It is important to note, however, that we only pass on the particular provisions at issuehere, medical leave to deal with one’s own “serious health condition,” 29 U.S.C. � 2612 (a)(1)(D), and the relatedretaliation section, see id. � 2614(a)(1), at least when used in conjunction with Section 2612(a)(1)(D). Although our resolution of the Eleventh Amendment issue precludes the portion of Hale’s suit under the FMLA, webriefly address the merits, or in this case lack thereof, in the alternative. While the FMLA caselaw in this circuit is sparse, we recently addressed an FMLA claim of improper employmentdischarge in Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999). In Sarno, the plaintiffemployee went on FMLA leave due to a hernia condition. Following the twelve week period permitted by statute, hewas unable to return to work and was terminated. He subsequently brought suit, alleging that his rights under theFMLA had been violated. We affirmed the district court’s grant of summary judgment for the defendant corporation,finding that Sarno’s termination at the end of that period “did not infringe his FMLA rights because it [was]
. . . undisputed that . . . he [was] unable to perform the essential functions of his . . . position.” Id. at 161. We also considered and rejected Sarno’s claim that his FMLA rights were infringed by the employer’s failure to inform him that the FMLA entitled him to a leave of up to twelve workweeks. See id. at 161-62.
In the present case, Hale alleges that he was fired in violation of the FMLA. However, we find this claim without merit.To the extent that he argues that he was improperly fired while on FMLA leave status, we find that the facts of thiscase are clearly to the contrary. Instead, the evidence before the district court established that Hale’s termination asDirector occurred after his FMLA leave ended. His receipt of a letter indicating that his discharge was effective onJanuary 15, 1998 is without significance, because OCFS subsequently changed the effective date of his termination. Moreover, to the extent that Hale contends he was fired in retaliation for his FMLA leave, we also find that contentionunsupported by evidence sufficient to create a genuine issue of material fact. Although the true reason for hisdismissal is in dispute, see infra, Hale has presented no evidence indicating that the termination decision was relatedto his FMLA leave. In sum, Hale has presented no facts in support of any FMLA violation, rendering it unnecessary forus to address the proper scope of the FMLA inquiry and whether the McDonnell Douglas burden shifting test applies inFMLA retaliatory discharge cases in this circuit. The First Amendment Claim “[A] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue ofgovernment employment.” Connick v. Myers, 461 U.S. 138, 140 (1983) (citing Pickering v. Board of Educ., 391 U.S.563, 568 (1968)). Nevertheless, a government employer has an interest in promoting efficient public service by itsemployees and may regulate its employees’ speech. See id. Because resolution of the conflict between these twocompeting interests involves a fact-specific inquiry, the Supreme Court has refused to “lay down a general standardagainst which all such statements may be judged.” Pickering, 391 U.S. at 569. Instead, the Court has instructed us toweigh the interests of the employee “in commenting upon matters of public concern and the interest of the State, asan employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. Preliminary to this balancing process, “a plaintiff . . . must initially demonstrate by a preponderance of the evidencethat: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causalconnection exists between his speech and the adverse employment determination against him.” Morris v. Lindau, 196F.3d 102, 110 (2d Cir. 1999). If the plaintiff meets the burden of establishing these factors, the burden shifts to theemployer to establish that “it would have taken the same adverse employment action ‘even in the absence of theprotected conduct.’” Id. (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).Whether an employee’s speech addresses a matter of public concern and is thus protected under the FirstAmendment is “one of law, not fact.” Morris, 196 F.3d at 110 (citing Connick, 461 U.S. at 148 n.7). On the other hand,if there are significant questions as to whether an employer would have discharged an employee but for his/herspeech, summary judgment is precluded. See id. In our case, the parties dispute whether Hale engaged in protected speech and whether his termination as Directorwas motivated by his speech. As an initial matter, defendants ask us to determine, in accordance with the decision ofthe district court, that Hale’s forwarding of the Langbein report is not protected under the First Amendment because hedid not write the report. After reviewing the record, we find, contrary to the district court below, that a genuine issue of material fact exists withregard to whether Hale adopted the report and made it speech of his own by forwarding the Langbein report to theCommission. There is evidence in the record that Hale objected to his superiors’ policies. A trier of fact could concludethat he voiced these concerns to management directly and via his submission of the Langbein report to theCommission. Although Mann assigned to Hale the task of preparing the report, and Hale delegated the task toLangbein, Hale may have adopted the Langbein report as his own. A jury could find that by forwarding the unalteredreport, Hale endorsed the views expressed in it and thereby engaged in independent expression. In support of thisposition, there is evidence that Hale forwarded the Langbein report by a transmittal letter over his signature to Mann(and to the Commission) precisely because he wanted to influence OCFS policy. [FOOTNOTE 4] On the other hand, a rational factfinder could also find that the evidence on this point is insufficient and that Hale wassimply following orders, not engaging in independent expression. The district court impermissibly resolved this issueon summary judgment; we merely resurrect it for the factfinder to decide. Next, we address whether the report, if adopted by Hale, addressed a matter of public concern. Although the districtcourt answered this question in the negative, we find that determination erroneous. We conclude that as a matter oflaw, the report addressed a matter of public concern: the proper administration of State facilities for the incarcerationof juveniles. See Morris, 196 F.3d at 110 (“As a general rule, speech on ‘any matter of political, social, or otherconcern to the community’ is protected by the First Amendment.”) (quoting Connick, 461 U.S. at 146); Dangler v. NewYork City Off Track Betting Corp., 193 F.3d 130 (2d Cir. 1999) (contacting OTB Inspector General about allegedimproprieties at OTB); Lewis v. Cowen, 165 F.3d 154 (2d Cir.), cert. denied, 120 S. Ct. 70 (1999) (objections to newlottery policies voiced to Connecticut Gaming Policy Board by lottery official); Blum v. Schlegel, 18 F.3d 1005, 1012(2d Cir. 1994) (“speech advocating the legalization of marijuana, criticizing national drug control policy, and debatingcivil disobedience on its face implicates matters of public concern”); Bieluch v. Sullivan, 999 F.2d 666, 671 (2d Cir.1993) (Defendant’s “speech concerned tax expenditures, town budgets, school construction, and the right to petitionfor referenda��matters of utmost public concern.”). This matter affected not just internal Goshen Facility administration,but, as shown by the Commission’s consideration of the issues raised in the Langbein report, issues that were thesubject of ongoing public discourse. Accordingly, if the factfinder determines that Hale adopted the report when heforwarded a copy of the report to his superiors, then the report, as a matter of law, contains protected FirstAmendment expression addressing a matter of public concern. Nevertheless, we must still address whether Hale’s speech was the cause of his termination. After reviewing therecord, we find that there is also a genuine issue of material fact as to whether Hale’s firing was motivated by Hale’sunacceptable administration of the Goshen Facility or by Hale’s protected speech in objecting to the policies andpractices governing the operation of the Goshen Facility. The defendants have submitted evidence that Hale did not properly implement appropriate policies at the GoshenFacility. They contend that he was terminated because of the deteriorating conditions at the Facility, as demonstratedin the January 1997 search and more particularly the January 1998 search. The defendants present other evidenceindicating that their disagreements with Hale predated the submission of the Langbein report and that, after thetroubling January 1998 search, Mann felt Hale needed to be terminated as Director. On the other hand, Hale has submitted sufficient evidence to create a jury question as to the true reason for hisdismissal. Most significantly, Hale has presented evidence that although his superiors may have been dissatisfied withhim for an extended period, the first suggestion of terminating him as Director occurred immediately after the Langbeinreport was submitted to the Commission. He also presents evidence indicating that the results of the January 1998search were not as disturbing as the defendants portray and thus that the actual reason for his dismissal may havebeen based on the Langbein report. Although the defendants have catalogued many deficiencies uncovered during thesearches, the timing of the termination decision, immediately after submission of the Langbein report, casts somedoubt on this explanation. We note that there is no allegation in this case that the submission of the Langbein report disturbed the normaloperation of OCFS, or more particularly the Goshen Facility, so as to implicate OCFS’ interest in promoting theefficient provision of public services. The defendants have merely asserted that they fired Hale because of his inabilityto appropriately manage the Goshen Facility and that if he engaged in protected speech, no causal connection existsbetween that speech and his termination. Hence, we need not weigh Hale’s free speech interest against his publicemployer’s efficiency interest under the balancing test established in Pickering. Cf. Dangler v. New York City OffTrack Betting Corp., 193 F.3d 130, 139-40 (2d Cir. 1999) (addressing the “defendants’ contention that they wereentitled to fire [the plaintiff] because his accusations of wrongdoing were inherently disruptive.”); Lewis v. Cohen, 165F.3d 154, 164 (2d Cir. 1999) (accepting the defendants’ claim that their “interest in the effective and efficient operationof the [Connecticut Division of Special Revenue] outweighed [the plaintiff's] First Amendment interest”). [FOOTNOTE 5] Lastly, we take no position on the defendants’ claim of qualified immunity, although we are skeptical of its viability inlight of the nature of allegations at issue. Cf. McEvoy v. Spencer, 124 F.3d 92, 104 (2d Cir. 1997) (finding that thedefendants were entitled to qualified immunity on First Amendment claim because of the unsettled status of the law atthe time of the alleged violation). CONCLUSION Since there are genuine issues of material fact concerning Hale’s adoption of the Langbein report as his ownexpression and the reason for Hale’s dismissal as Director that preclude summary judgment, we vacate the summaryjudgment insofar as it pertains to the First Amendment claim and remand for resolution of that claim. Because OCFSis entitled to Eleventh Amendment immunity on the FMLA claim, we affirm, on different grounds, the dismissal of thatclaim. A. CABRANES, Circuit Judge, concurring in part and dissenting in part from the majority opinion: I join the majority opinion insofar as it addresses Hale’s claim under the Family and Medical Leave Act (“FMLA”),affirming the judgment of the District Court on the grounds that the District Court lacked jurisdiction over the claim andthat, in any event, the claim is devoid of merit. I respectfully dissent, however, from the majority’s conclusion that theDistrict Court improperly granted summary judgment on Hale’s � 1983 retaliatory demotion claim. That claim is basedon the proposition that a person who merely forwarded a report, as required, lost his job as a result, even though theauthor of the report suffered no adverse consequences. To prevail on his � 1983 claim, Hale must show that: (1) his conduct is entitled to First Amendment protection; and (2)defendants’ conduct was motivated by, or substantially caused by, Hale’s exercise of his protected free speech rights.See, e.g., Hankard v. Town of Avon, 126 F.3d 418, 421-22 (2d Cir. 1997). I do not believe that Hale has satisfied thefirst element, because the “speech” for which he claims defendants retaliated was not protected by the FirstAmendment. The majority states:
A jury could find that by forwarding the unaltered [Langbein] report, Hale endorsed the views expressed in it and thereby engaged in independent expression. In support of this position, there is evidence that Hale forwarded the Langbein report by a transmittal letter over his signature to Mann (and to the [New York State] Commission [of Correction]) precisely because he wanted to influence [Office of Children and Family Services] policy.
Supra at [18:3-7]. I find no support in the record for the conclusion that Hale “engaged in independent expression” inconnection with the Langbein report. Hale admits that he did not contribute to the preparation of the report. Nothing inthe three-page report indicates that it conveys Hale’s views. Nor does the transmittal memorandum to which themajority refers offer any indication that Hale endorsed the policy prescriptions set forth by Langbein-who was notpunished despite having authored the report that Hale claims his superiors found so objectionable. All Hale did, then,was comply with a direct written request from the Commission to forward for its review a copy of the report. Critically,the majority opinion does not mention Hale’s admission that he believed he was required to turn over the report inresponse to the Commission’s request. [FOOTNOTE 6] Since Hale believed he had no choice but to forward the report, and sinceneither the report nor his brief transmittal memorandum refers to his own views concerning Langbein’s policyprescriptions, I do not see how it is possible to say that Hale “engaged in independent expression” by forwarding thereport. Absent a demonstration that Hale engaged in protected speech, the judgment of the District Court grantingdefendants’ motion for summary judgment and dismissing the � 1983 claim should be affirmed. Moreover, even if it could be said that Hale had engaged in protected expression, defendants would be entitled tosummary judgment. Less than a year ago, we explained that “we are most doubtful that the Constitution ever protectsthe right of a public employee in a policymaking position to criticize h[is] employer’s policies or programs simplybecause [h]e does not share h[is] employer’s legislative or administrative vision.” Lewis v. Cowen, 165 F.3d 154, 165(2d Cir. 1999) (quoting Moran v. State of Washington, 147 F.3d 839, 850 (9th Cir. 1998) (emphasis added)). I believethis situation falls under Lewis: the record is clear that Hale was a policymaking public employee, who asserts that hewas demoted in retaliation for having criticized his employer’s policies. In my view-and in the views of our Court inLewis and the Ninth Circuit in Moran-the long reach of the First Amendment does not extend so far as to protect thejobs of non-civil service, policymaking public employees who insist on attacking the policies implemented by theirsuperiors. The job in which Hale served-Youth Facility Director 3 (“YFD3″)-clearly qualifies as a policymaking position under thestandard we have established. [FOOTNOTE 7] In determining whether an employee is a policymaker, we consider several factors,including
whether the employee (1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized to speak in the name of policymakers, (5) is perceived as a policymaker by the public, (6) influences government programs, (7) has contact with elected officials, and (8) is responsive to partisan politics and political leaders. This list is not exhaustive, but instead serves as a guide; no one factor or group of factors is always dispositive.
Id. at *3-4 (quoting Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994)). First, as a YFD3, Hale served at thepleasure of the Governor and was not entitled to civil service protection. [FOOTNOTE 8] Second, the job requirements for a YFD3demonstrate that the position demands technical expertise, including “good knowledge of principles of general,adolescent and abnormal psychology,” “good knowledge of social casework techniques,” and “good knowledge ofcounseling techniques.” Third, a YFD3 directs the operations of a secure facility with 50-199 employees and a bedcapacity of 50-99, thereby “control[ling] others.” Turning to the remaining four factors, we have noted that they “attempt to define the contours of a zone inside whichgovernmental decisions are made,” and “encompass a principle upon which this circuit has placed primaryimportance: whether the employee in question is empowered to act and speak on behalf of a policymaker, especiallyan elected official.” Gordon v. County of Rockland, 110 F.3d 886, 890 (2d Cir. 1997). In the instant case, facilitydirectors are required to “serve as effective spokespersons in the community for the facility and [OCFS].” Among theirspecific responsibilities, facility directors must: (1) determine when youth are to be discharged; (2) meet andcorrespond with parents of youth to advise them of the progress of their children; (3) meet and deal with the membersand representatives of the community surrounding the facility to influence them to accept and cooperate with facilityprograms; (4) meet with members of the community who have been damaged by the actions of facility residents, tolearn of the damage and arrange restitution where necessary; and (5) authorize expenditure of monies for all itemspurchased by the facility. Hale’s decisions concerning when to discharge youth and his representation of the GoshenSecure Center in dealings with parents as well as members of the community clearly placed him within the “zoneinside which governmental decisions are made.” Indeed, the first of these responsibilities (the power to decide when todischarge detained youth), standing alone, demonstrates that Hale acted as a policymaker. The added emphasis oninteraction with the public further reinforces this conclusion, indicating a general perception of a YFD3 as apolicymaker. Cf. Butler v. New York State Dep’t of Law, — F.3d —-, 2000 WL 530324 at *3-5 (2d Cir. May 3, 2000)(finding that a Deputy Bureau Chief of New York State Department of Law, who regularly appeared in state and federalcourt, served in a policymaking position); Adler v. Pataki, 185 F.3d 35, 46 (2d Cir. 1999) (Deputy Counsel of the NewYork State Office of Mental Retardation and Developmental Disabilities, who represented the agency in administrativeand interdepartmental proceedings); Bavaro v. Pataki, 130 F.3d 46, 50-51 (2d Cir. 1997) (associate and assistantcounsel in the New York State Department of Health, who represented the state before the Board of ProfessionalMedical Misconduct); Vezzetti, 22 F.3d at 486 (Orangetown Highway Superintendent, who frequently made publicspeeches); Regan, 984 F.2d at 579-81 (Deputy Tax Receiver of Islip, who attended Town Board meetings on thereceiver’s behalf). The majority attempts in a footnote to avoid the obvious implication of the clear statement on this point in Lewis,claiming that “defendants have not characterized Hale as a policymaker. . . . Instead, they have merely characterizedHale’s position as a policy-influencing position, held at the pleasure of the Governor . . . .” Supra at [21 n.4] (emphasisin original) (internal quotation marks omitted). First, there is no support in our caselaw for this novel distinctionbetween policymakers and mere “policy-influencers.” The fact that Hale reported to others does not preclude hishaving served in a policymaking position. Cf. Butler, 2000 WL 530324 at *4 (stating that the Court was “not persuadedby [plaintiff's] argument that she was not a policymaker because she had to consult her superiors or clients on policyissues. The issue is not whether [plaintiff] independently made policy from day to day, but rather what the generalrequired duties of her position were.”). I see no reason to create some new category of public employee when therealready exist criteria to distinguish policymakers from other public employees-criteria which the majority fails tomention in the course of reviving Hale’s retaliation claim. In addition, it is undisputed that Hale was notified in a 1994 letter from OCFS that his “position ha[d] been designatedas policymaking” for financial disclosure purposes. Remarkably, this letter is cited in defendants’ brief at theconclusion of the very sentence relied upon by the majority to claim that defendants never asserted that Hale was apolicymaker, but rather a “mere policy-influencer.” Accordingly, the record does not support the contention that OCFSdid not consider Hale a policymaker; indeed, the record clearly supports the contrary conclusion. To summarize: I join the majority opinion with respect to Hale’s FMLA claim. However, I would affirm the DistrictCourt’s decision granting defendants’ motion for summary judgment on plaintiff’s � 1983 claim, both because plaintiffhas not offered any evidence that he engaged in protected expression and because, even if he had, defendants wereentitled, following our recent decision in Lewis, to remove him from his policymaking position for criticizing hissuperiors’ policies. Accordingly, I dissent from so much of the majority opinion as holds otherwise. :::FOOTNOTES::: FN1 His First Amendment claim was brought pursuant to 42 U.S.C. � 1983. FN2 The Commission is entrusted with a wide variety of tasks in aid of the administration of correctional facilities in NewYork state. Among other things, it must advise the governor concerning appropriate correctional facility policies; visit,inspect, and appraise the management of state correctional facilities; close unsafe correctional facilities; andpromulgate appropriate rules and regulations for the care of inmates. See N.Y. Correct. Law � 45 (McKinney 1987 &Supp. 1999-2000). It consists of three members who oversee the operations of state and local correctional facilities.See McNulty v. Chinlund, 392 N.Y.S.2d 790, 791 (N.Y. Sup. Ct. 1977). FN3 For example, in a September 16, 1997 memorandum, Hale had stated that “these residents who are never going tobenefit from being in our system . . . are like a cancer that disrupts a facility’s environment. They must be surgicallyremoved . . .” FN4 In his affidavit in opposition to defendants’ motion for summary judgment, Hale stated,
Lou Mann and Steve Mann both knew that I shared the views Langbein expressed and the act of my forwarding the report to the Commission on Corrections was intended to divulge to that agency the disputes I had with the policies of our agency on matters of considerable public importance. I was not required to send this document to the Commission.
FN5 We also note that the defendants have not characterized Hale as a policymaker nor argued that they could demotehim because of that status. Instead, they have merely characterized Hale’s position as a “policy-influencing position,held at the pleasure of the Governor,” and never linked up that purported status with their termination decision.(emphasis added). Moreover, Hale’s possible status as a policymaker was not addressed by the district court and, ifraised, is more properly left for that court to address on remand. In the event it is determined on remand that Hale wasa policymaker, the defendants would still have to establish that they properly demoted him, since a policymaker maystill be entitled to First Amendment protection for his speech. See Lewis, 165 F.3d at 162 (“The policymaking status ofthe discharged or demoted employee is very significant in the Pickering balance, but not conclusive.”) (alterationsomitted) (quoting McEvoy v. Spencer, 124 F.3d 97, 103 (2d Cir. 1997)). See also 124 F.3d at 103 (“The more theemployee’s job requires . . . policymaking . . ., the greater the state’s interest in firing her for expression that offendsher employer.”) (alteration omitted). FN6 Specifically, the following colloquy took place at Hale’s deposition on September 9, 1998:
Q: Did you ever write to the commission or speak to anyone there and ask them why they wanted all these reports? Hale: No. There was no need to ask them why. I was – - – they are an oversight agency. Whatever requests they make we have to provide.
(emphasis added). Obviously, this admission stands in stark contrast to the self-serving affidavit from which the majority quotes.Supra at [18 n.4]. Hale submitted that affidavit, in opposition to defendants’ motion for summary judgment, approximately threemonths after he had been deposed. In light of this temporal proximity, it is apparent that Hale’s sudden reversal was engendered bythe necessities of his position in connection with the pending motion, and that the relevant statement in the affidavit is not credible.See, e.g., Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995) (“‘[I]t is well settled in this circuit that a party’s affidavitwhich contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.’” (quoting Mack v.United States, 814 F.2d 120, 124 (2d Cir. 1987)). FN7 We have noted that “[i]t is beyond cavil that an appellate court may affirm the judgment of the district court on any groundappearing in the record.” Shumway v. UPS, Inc., 118 F.3d 60, 63 (1997). As the facts concerning Hale’s responsibilities as a YFD3were in the record before the District Court, I see no need to remand for consideration of whether Hale was a policymaker. FN8 We have recognized that “New York has considered many of the same criteria for non-civil service status as does a court indetermining whether a position is exempt from First Amendment protection.” Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir.1993).
Hale v. Mann United States Court of Appeals for the Second Circuit Monroe Hale, Plaintiff-Appellant, v. Louis Mann, Deputy Commissioner, sued in his individual capacity and The State of New York Office of Children and Family Services, Defendants-Appellees No. 99-7326 Appeal from a summary judgment in favor of defendants entered in the United States District Court for the Southern District of New York (Brieant, J.), Argued: October 22, 1999 Decided: May 25, 2000 Before: KEARSE, MINER, AND CABRANES, Circuit Judges.
