Deborah BARCLAY, Plaintiff-Appellant, v. Kim MICHALSKY and Paula Hughes, Defendants-Appellees, 368 F. App'x 266

SUMMARY ORDER Plaintiff Deborah Barclay appeals from a judgment of the District Court, entered on June 27, 2007, granting

summary judgment for defendants, who are two supervising nurses at the hospital where plaintiff was formerly employed as a nurse. Plaintiff had claimed, pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, that defendants retaliated against her in violation of the First Amendment after plaintiff complained to her supervisors that her coworkers were mistreating patients and sleeping on the job. In June 2007, the District Court granted defendants’ second motion for

summary judgment because (1) a responsibility shared by all hospital employees constituted an “official dut[y]” for plaintiff, Barclay v. Michalsky, 493 F.Supp.2d 269, 277 (D.Conn.2007) (“Barclay 77”), and (2) plaintiff had conceded at her deposition that reporting these types of misconduct was her “duty,” id. at 275. We assume the parties’ familiarity with the remainder of the facts and procedural history in this case. “We review the District Court’s grant of

summary judgment de novo.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005).

Summary judgment is appropriate if “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In Garcetti v. Ceballos, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); accord Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir.2010).

Where the scope of an employee’s duties was contested, the Supreme Court advised that a “practical” approach should apply in determining the scope of a government employee’s duties. Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951. In Garcetti, plaintiff stipulated to an official duty in a brief, see id. at 421, 126 S.Ct. 1951, and in this case plaintiff herself conceded at her deposition that it was her responsibility to report patient abuse and nurses sleeping on the job. In plaintiffs own words, “I did my duty. I did my job.... And I wasn’t a whistle-blower.

I did my job.” Dep. of Deborah Barclay, Feb. 1, 2007, 323. Despite plaintiffs attempt to distance herself from this admission, her statement is amply supported by uncontested record evidence that Work Rule # 22, which expressly prohibits “[pjhysical violence, verbal abuse, inappropriate or indecent conduct and behavior that endangers the safety and welfare of persons or property,” Barclay v. Michalsky, 451 F.Supp.2d 386, 390 (D.Conn.2006) (“Barclay I”), forbids the “use of excessive restraints on patients and employees sleeping on the job,” Barclay II, 493 F.Supp.2d at 273.

There is also undisputed evidence that “all [hospital] employees have a duty pursuant to Work Rule # 30 to report violations of existing work rules, policies, procedures, or regulations.” Id. In light of plaintiffs concessions and the record evidence that supports them, we agree with the District Court that Garcetti requires

summary judgment in favor of defendants. Plaintiff argues that duties that are “generally applicable to all [hospital] employees,” such as the Work Rules in this case, are not duties of any particular employee. Appellant’s Br. 20. However, this argument is directly contradicted by plaintiffs own testimony that filing a complaint was “my job” and “my duty.” Dep. of Deborah Barclay, Feb. 1, 2007, at 323 (emphases added); see also Barclay II, 493 F.Supp.2d at 275.

In addition, plaintiff concedes that she personally received instructions from “[defendant] Hughes, among others, ... to report the violations verbally to her supervisors.” Id. at 275. Although plaintiff also argues that the “supervisory culture” at plaintiffs workplace “actively discouraged reporting coworker misconduct,” this allegation — supported solely by plaintiffs own filings — lacks sufficient evidence to present a genuine issue of material fact. Appellant’s Br. at 20.

Indeed, even if plaintiff were discouraged from filing a complaint, that fact is irrelevant in light of plaintiffs own testimony that she filed a complaint because it was her “job” and her “duty” to do so. CONCLUSION In light of the foregoing, the judgment of the District Court is AFFIRMED.