Nicole S. LATREILLE, Plaintiff-Appellee, v. Steve GROSS, Darcie Miller, Defendants-Appellants, 701 F. App'x 74

SUMMARY ORDER In this interlocutory appeal, Defendants-Appellants Steve Gross, Commissioner of the Orange County Department of Human Resources, and Darcie Miller, Commissioner of the Orange County Department of Social Services and Commissioner of Mental Health, appeal from a December 2, 2016 order of the United States District Court for the Southern District of New York (Seibel, J.) denying in part Gross and Miller’s motion for

summary judgment. Gross and Miller assert that they are entitled to qualified immunity. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. “We review de novo a decision by a district court to deny

summary judgment on the basis that a public official is''not entitled to qualified immunity.” Golodner v. Berliner, 770 F.3d 196, 201 (2d Cir. 2014). We generally lack jurisdiction to review the denial of a motion for

summary judgment because it is “not a final judgment” and is “not immediately appeal-able.” Walczyk v. Rio, 496 F.3d 139, 153 (2d Cir. 2007); see 28 U.S.C. § 1291. There is an exception to this rule when “the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a ‘purely legal question.’ ” Walczyk, 496 F.3d at 153 (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

Be cause “[w]e are without jurisdiction to review a denial of a claim of qualified immunity that turns on disputed issues of fact,” Golodner, 770 F.3d at 201 (citing Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)), we “must assume ‘all factual disputes in favor of the non-movant/ ” id. (quoting Ross v. Breslin, 693 F.3d 300, 302 (2d Cir. 2012)).

That is, defendants are permitted to appeal a denial of qualified immunity only if they “pursue the appeal on the basis of stipulated facts or the facts as alleged by the [non-movant]” or if they “assume that all the facts that the district court found to be disputed are resolved in the [non-movant]’s favor.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016) (quoting Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 104-05 (2d Cir. 2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008) (per curiam)); see also White v.

Pauly, - U.S. -, 137 S.Ct. 548, 550, 196 L.Ed.2d 463 (2017) (per curiam) (“[T]he facts are viewed in the light most favorable to the [non-movant].”). We further “may not inquire into the district court’s determination that there was sufficient evidence to create a jury question.” Ricciuti, 834 F.3d at 167 (quoting Skehan, 465 F.3d at 105).

Because we are prohibited from “entertaining] an interlocutory appeal in which a defendant contends that the district court committed an error of law in ruling that the plaintiffs evidence was sufficient to create a jury issue on the facts relevant to the defendant’s immunity defense,” Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996), we regularly dismiss interlocutory appeals for lack of appellate jurisdiction on this basis. See, e.g., Munafo v. Metro. Transp. Auth., 285 F.3d 201 (2d Cir. 2002); In re State Police Litig., 88 F.3d 111 (2d Cir. 1996); Moffitt v.

Town of Brookfield, 950 F.2d 880 (2d Cir. 1991); Bouche v. Oliveri, 506 Fed.Appx. 29 (2d Cir. 2012) (summary order); Estate of George v. Batista, 480 Fed.Appx. 104 (2d Cir. 2012) (summary order); Zalaski v. City of Hartford, 462 Fed.Appx. 13 (2d Cir. 2011) (summary order). Gross and Miller profess — as they must — to pursue their interlocutory appeal based on the facts alleged by Plaintiff-Appellee Nicole S. Latreille. However, upon our review of the record and despite Gross and Miller’s representations to the contrary, we conclude that Gross and Miller do not proceed on this basis.

We thus must dismiss their appeal for lack of appellate jurisdiction. As one example, Gross and Miller spend considerable time arguing that Latreille’s disclosures to law enforcement of public assistance records, insofar as they related to welfare fraud, were within the scope of her professional responsibilities'and therefore not constitutionally protected. Based on the record, we lack jurisdiction to review this challenge. The district court determined that “[t]he parties don’t dispute that Plaintiffs investigation was outside of her official job responsibilities.” S.A. 15-16 (emphasis added).

And there is ample record evidence that Latreille’s job responsibilities did not include fraud investigation of any sort, whether it be welfare or mortgage fraud.

See, e.g., J.A. 120 (noting that it is not “within [Latreille’s] job description to conduct investigations into fraud”); id. at 113 (noting that the work “expanded beyond [her] job duties”); id. at 133 (noting that the information was not “pertinent” to Latreille’s job); id. at 269 (noting that her “investigations and disclosures were outside the scope of her work responsibilities”); id. at 562 (noting at Miller’s deposition that “investigating to begin with” is not part of Latreille’s duties); id. at 624 (noting in Bradshaw’s complaint letter that “[t]his certainly is not part of our job description”).

Some of this record evidence is even cited in Gross and Miller’s own Rule 56.1(

a) statement. See id. at 31. It is telling that, as the district court pointed out, Gross and Miller’s own statement of reasons for disciplining Plaintiff largely concedes the point. In the letter to Latreille dated April 17, 2015 and signed by Miller, Charge I specified that Latreille used the county electronic communication system “for purposes that fell outside the scope of [her] own and [her] work unit’s responsibilities.” Id. at 626. Charge II highlighted that she used her work computer “for purposes that fell outside the scope of [her] own and [her] assigned work unit’s responsibilities.” Id.

Charge III described Latreille’s investigation as an “unconventional ‘special project.’ ” Id. Charge V made clear that Latreille’s investigation was “outside the scope of [her] normal duties.” Id. at 627. In sum, the facts underlying Gross and Miller’s claim on appeal that Latreille’s disclosures to law enforcement were within the scope of her professional responsibilities are, at best, contested, and, accordingly, we do not have jurisdiction to consider the appeal. Accordingly, the appeal is DISMISSED for lack of appellate jurisdiction.