22-1135-cv
`Heim v. Daniel
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`
`August Term, 2022
`
`Argued: June 30, 2023 Decided: August 30, 2023
`
`Docket No. 22-1135-cv
`
`
`JOHN J. HEIM,
`
`Plaintiff-Appellant,
`
`— v. —
`
`BETTY DANIEL, ADRIAN MASTERS,
`
`Defendants-Appellees.*
`
`
`
`Before:
`
`LYNCH, BIANCO, and PÉREZ, Circuit Judges.
`
`
`
`This appeal concerns a First Amendment retaliation claim brought in the
`
`* The Clerk is respectfully directed to amend the caption to conform to the above.
`
`

`

`Northern District of New York by Plaintiff-Appellant John Heim, an adjunct
`professor of economics at SUNY Albany, who attributes his failure to advance
`within his department to his colleagues’ unfavorable view of the methodology he
`employs in his scholarship. The district court (Hurd, J.) granted summary
`judgment to Defendants, two of Heim’s colleagues who were involved in the
`hiring decisions at issue. Although we disagree with much of the district court’s
`reasoning, we nonetheless agree with its ultimate disposition. We hold that
`Garcetti v. Ceballos, 547 U.S. 410 (2006), does not apply to speech related to
`academic scholarship or teaching, and that Heim’s speech addressed matters of
`public concern, but that Heim’s First Amendment claim nonetheless fails because
`under Pickering v. Bd. of Educ., 391 U.S. 563 (1968), a public university’s interest in
`deciding for itself what skills, expertise, and academic perspectives it wishes to
`prioritize in its hiring and staffing decisions outweighs Heim’s asserted interest
`in competing for academic positions unencumbered by university decision-
`makers’ assessment of his academic speech. We therefore AFFIRM the judgment
`of the district court.
`
`
`
`PHILLIP G. STECK, Cooper Erving & Savage LLP, Albany, NY,
`for Plaintiff-Appellant.
`
`SARAH L. ROSENBLUTH, Assistant Solicitor General, Buffalo, NY
`(Letitia James, Attorney General; Barbara D.
`Underwood, Solicitor General; Andrea Oser, Deputy
`Solicitor General, on the brief), for Defendants-Appellees.
`
`DARPANA M. SHETH, Washington, DC, for Amicus Curiae
`Foundation for Individual Rights and Expression.
`
`
`
`2
`
`

`

`GERARD E. LYNCH, Circuit Judge:
`
`Plaintiff-Appellant John Heim, an adjunct professor of economics, appeals
`
`from a judgment of the United States District Court for the Northern District of
`
`New York (David N. Hurd, J.) granting summary judgment to his colleagues
`
`Betty Daniel and Adrian Masters (together, “Defendants”) who, as the relevant
`
`decision-makers in the Economics Department at the State University of New
`
`York at Albany (“SUNY Albany”1), declined to interview Heim for more
`
`desirable positions he believes he was qualified for. Heim’s challenge is premised
`
`on the allegation that Defendants rejected his candidacy in substantial part
`
`because he is a proponent of traditional Keynesian economics, an approach that
`
`Defendants consider to be outdated.
`
`Although we accept that factual premise underlying Heim’s appeal, we
`
`disagree with the legal theory it supports: that, under the First Amendment, a
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`public university’s hiring decisions cannot be informed by methodological
`
`preference. Rather, applying the employer/employee interest-balancing
`
`framework first set forth in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), we hold
`
`1 The institution is also referred to in the record as “The University at Albany”
`and, simply, “Albany.”
`
`3
`
`

`

`that a public university’s interest in deciding for itself what skills, expertise, and
`
`academic perspectives it wishes to prioritize in its hiring and staffing decisions
`
`outweighs Heim’s asserted interest in competing for academic positions
`
`unencumbered by university decision-makers’ assessment of the approach or
`
`methodology underlying his academic speech. We therefore AFFIRM the
`
`judgment of the district court.
`
`BACKGROUND
`
`I.
`
`Factual Background
`
`The following facts, which are largely drawn from Heim’s own testimony,
`
`are undisputed except where otherwise indicated, and are those that a reasonable
`
`factfinder could find, construing all ambiguities in Heim’s favor. See Cugini v.
`
`City of New York, 941 F.3d 604, 608 (2d Cir. 2019).
`
`A.
`
`The Parties
`
`Heim, an adjunct professor2 at SUNY Albany, initially brought this lawsuit
`
`against the entire SUNY system, SUNY Albany, its president Havidan Rodriguez,
`
`2 In his deposition, Heim explained that although his title was technically
`“visiting professor,” for “payroll purposes” he was “known as an adjunct
`professor or lecturer.” App’x 142, 151. All parties refer to him as an “adjunct.”
`
`4
`
`

`

`and two members of the SUNY Albany Economics Department (the
`
`“Department”): Professors Betty Daniel and Adrian Masters. Masters has chaired
`
`the Department since 2015, and was a member of its hiring committee at all
`
`relevant times. In addition to leading the Department prior to Masters, Daniel
`
`also chaired its hiring committee at all relevant times.
`
`B.
`
`Heim’s Professional Path
`
`Heim was a relative latecomer to academia. After receiving his Ph.D. in
`
`Political Economy from SUNY Albany in 1972, he worked in government as an
`
`econometrician (and in other similar capacities) for many years, interrupted only
`
`by his time in the mid-1980s obtaining a Master’s degree in Public
`
`Administration from Harvard. He began his teaching career in 1997, accepting a
`
`non-tenured position at Rensselaer Polytechnic Institute (“RPI”) where he
`
`eventually achieved the rank of (non-tenured) “full clinical professor.” App’x
`
`126.3 Heim’s duties at RPI “were limited to teaching and administration,”
`
`including teaching “Master[’s] and Ph.D.-level Advanced Macroeconomics I & II
`
`and Master’s level Econometrics” and supervising both undergraduate- and
`
`3 Because “[t]enure in that position was not available,” RPI never made any
`“decision on granting or denying [Heim] tenure.” App’x 528.
`
`5
`
`

`

`graduate-level research. Id. at 528.
`
`Around 2012, he accepted an adjunct position at SUNY Albany with a
`
`lighter teaching load that he felt would allow him to “concentrate more on
`
`research.” Id. That research, the methodology it employs, and the difference
`
`between that methodology and the approach favored by his colleagues at SUNY
`
`Albany are at the root of this dispute.
`
`C. Methodological Perspectives at SUNY Albany
`
`Heim describes himself as a traditional Keynesian economist. In Heim’s
`
`characterization, Keynesians “stud[y] the operation of the entire economy as a
`
`whole (in comparison to microeconomists who study the behavior of firms or
`
`sectors of the economy or particular markets),” with a particular focus on
`
`demand-driven government intervention. Appellant’s Br. 8. That perspective, he
`
`explains, derives from prominent 20th-century economist John Maynard Keynes’s
`
`view that “[w]hen consumers spend money in the economy, businesses respond
`
`by producing goods and services” to satisfy that robust aggregate demand,
`
`stimulating the macroeconomy; conversely, “when aggregate demand is lacking,
`
`the economy is depressed.” Id. For example, “[f]or Keynes, the Great Depression
`
`was caused by insufficient aggregate demand, that is[,] consumers having
`
`6
`
`

`

`insufficient purchasing power to drive the economy forward.” Id. Accordingly,
`
`Keynesian economics generally supports countering economic lulls with
`
`government intervention targeted at increasing consumers’ purchasing power
`
`through policies like tax cuts, heightened government spending, and increases in
`
`the money supply. That view represented a significant departure from prevailing
`
`early 20th-century perspectives, which effectively trusted to market forces to sort
`
`everything out in the long run. Keynes, of course, famously quipped that “[i]n the
`
`long run, we are all dead,” App’x 531, and the school of economics he founded
`
`enjoyed a run of prominence spanning several post-Great Depression decades.
`
`Rampant stagflation in the 1970s inspired many economists to re-evaluate.
`
`When traditional Keynesian methods were seen as unable to account for the
`
`oppressive mix of inflation, unemployment, and stagnant growth of the era, new
`
`approaches began to supplant Keynesianism. That reckoning was spurred by the
`
`so-called “Lucas Critique,”4 which posited that Keynesian models’ reliance on
`
`fixed coefficients to relate consumers’ disposable income to consumer spending
`
`did not account for the fact that consumers’ behaviors may vary based on their
`
`4 Named for its creator, University of Chicago economist and Nobel laureate
`Robert Lucas.
`
`7
`
`

`

`expectations for future government interventions – for example, by responding to
`
`a short-term tax cut aimed at increasing consumer purchasing power by instead
`
`saving newfound disposable income that Keynesian models would expect them
`
`(and policymakers would prefer them) to spend. That critique demanded a new
`
`way to predict macro, economy-wide, trends based on those kinds of micro,
`
`consumer-level, variables. So was born the “micro foundations of
`
`macroeconomics” school which, in Heim’s words, attempts to “extrapolate the
`
`behavior of the macro economy from the micro economy.” Id.
`
`One prominent technique employed under that banner, and by many post-
`
`Lucas Critique macroeconomists, is central to this lawsuit: “dynamic stochastic
`
`general equilibrium” (or “DSGE”) modeling. Heim characterizes DSGE as “a
`
`method that uses sophisticated mathematics such as logarithms to derive the
`
`behavior of the macro economy from the micro economy.” Id. at 532. DSGE’s
`
`proponents consider it a more flexible and robust technique than its forebears.
`
`They believe that by permitting macroeconomic indicators like economic output
`
`to be linked to coefficients that are sensitive to consumer expectations,
`
`researchers are able to model economic trends more dynamically and more
`
`realistically than would be possible using traditional Keynesian tools. To Heim,
`
`8
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`

`

`though, none of this is really macroeconomics at all because it does not “deal
`
`with the behavior of the economy as a whole.” Id. at 535. In his view, “you cannot
`
`simply derive the macro from the micro.” Id.
`
`The merits of that debate5 are not for us to assess; judges are neither
`
`qualified nor commissioned to resolve academic debates among scholars in any
`
`particular discipline. What matters is that the debate exists at all, and that Heim
`
`– who practices traditional Keynesian economics6 – is on one side of it, while his
`
`colleagues at SUNY Albany – who do not – are on the other.
`
`D.
`
`Heim’s Work at SUNY Albany
`
`According to Heim, it did not take long for his colleagues’ “hostil[ity]”
`
`5 The parties, for example, dispute the extent to which Heim’s approach is or is
`not out-of-step and antiquated, precisely how ubiquitous and/or infallible the
`DSGE technique is or is not, and whether DSGE has invited a reversion to pre-
`Keynesian perspectives or is simply a technique used by modern economists of
`varying perspectives. Compare Appellant’s Br. 9 (“DSGE economists are said to be
`a modern version of neoclassical economists, the economists who emphasized
`market clearing before the advent of Keynes.”), with Appellee’s Br. 8
`(“Contemporary Keynesian analysis . . . often embraces DSGE techniques – it
`does not, as plaintiff claims, stand apart from DSGE.”).
`
`6 Heim describes his own work as “demand-driven Keynesianism, as Keynes
`himself would have recognized it,” employing a “highly detailed statistically
`based look at how the economy operates.” App’x 535.
`
`9
`
`

`

`towards his approach to affect the scope of his work within the Department.
`
`App’x 552. In his first semester at SUNY Albany, he taught a class on large-scale
`
`macroeconomic modeling. When Daniel took over as Chair, however, “she denied
`
`[Heim] the opportunity to continue teaching that class.” Id. at 528. Thereafter,
`
`although Heim maintained a full courseload teaching classes like “Principles of
`
`Economics” and “Economic Statistics,” he was never again assigned to teach
`
`macroeconomics.
`
`Meanwhile, Heim continued to forge ahead with his research, although as
`
`an adjunct he was not required to do so. For example, between 2017 and 2021 he
`
`published four books studying “every fiscal stimulus program going back to
`
`1960,” id. at 529, and as of February 2022, he had published 23 articles in
`
`economic journals. His research was publicized and celebrated by the university,
`
`including at a 2018 reception honoring several dozen “Authors & Artists” from
`
`across the College of Arts and Sciences, and a 2018 “Celebration of Scholarship”
`
`event featuring presentations from 45 SUNY Albany scholars across a range of
`
`disciplines. Id. at 573, 575.
`
`Heim remains employed as an adjunct at SUNY Albany. That is not
`
`because he always wanted to continue in that capacity, however. To the contrary,
`
`10
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`

`

`at the heart of this lawsuit are three other positions in the Department that he
`
`was (or would have been) interested in, but for which he was never interviewed.
`
`1.
`
`The 2013 Position
`
`First, in December 2013, Heim learned of a tenure-track macroeconomics
`
`opening that the Department was in the process of filling. That was not an
`
`everyday occurrence; the Department is small, employing fewer than 20 faculty,
`
`only three or four of whom specialize in macroeconomics. Heim quickly reached
`
`out to Daniel by email to express his interest:
`
`I just found out last Friday at our holiday party that we
`were recruiting for a macroeconomics/Money and
`banking position. No one had mentioned this to me
`before, and I would have been interested in applying,
`had I known . . . .
`That said, my research interests are principally in large
`scale econometric modeling of the macroeconomy. . . . I
`am finalizing this year work on a 30-40 equation model
`of the macroeconomy, which could become known as
`the “SUNY Albany Econometric Model” . . . . I think my
`area of my research is likely to undergo a resurgence of
`interest in the near future[.]
`Of course, the department here at SUNY has already
`made a substantial investment in developing a micro
`foundations focus, and may be more interested in
`adding depth to its capacity in this area. Though I have
`taught graduate-level micro foundations courses, it is of
`course, an area substantially different from my own area
`
`11
`
`

`

`of interest and expertise. If this is the direction the
`department sees itself headed in, certainly someone far
`different than me would a better match for the
`department and its plans than I would be.
`
`Id. at 588-89. In response, Daniel confirmed that the Department was indeed
`
`looking for someone with a micro foundations focus, but that it nonetheless
`
`supported Heim’s ongoing, divergent research:
`
`Thanks for your interest in the macro position. You are
`correct that we are heavily invested in micro
`foundations of macro as this is the research trend in the
`top macro and general field journals. Since we expect
`our faculty to publish in these journals, we do intend to
`continue with this direction.
`I did consult with Adrian [Masters] . . . and we agree
`with you that your research differs from the course of
`research we want to pursue. I expect that we will hire a
`junior person recently trained in these techniques. I do
`want to encourage you to continue your research. It just
`does not match with the direction we are taking macro
`research in the Department.
`
`Id. at 588. The Department ultimately hired Yue Li, a recent Ph.D. with a micro
`
`foundations research focus who, in Heim’s estimation, had limited familiarity
`
`with traditional Keynesian modeling.
`
`2.
`
`The 2016 Position
`
`A few years later, in 2016, Heim learned that the Department had hired for
`
`12
`
`

`

`a full-time (non-tenure-track) lecturer position in financial economics – and that
`
`despite Heim’s background in that area, he had again never been approached
`
`about the opportunity, and in fact did not even learn of it until the job had
`
`already been filled by a fellow adjunct; the Department had sought and obtained
`
`a waiver from the university to make the offer to Lewis Segal, a former Goldman
`
`Sachs employee with a Ph.D. in economics from Northwestern, without going
`
`through the normal competitive hiring process. Although he concedes that Segal
`
`was qualified for the role, Heim maintains that he himself was “equally qualified,
`
`maybe a little bit more.” Id. at 199.
`
`3.
`
`The 2017 Position
`
`In August 2017, while having lunch with Daniel and Masters, Heim
`
`learned of another open tenure-track macroeconomics position in the
`
`Department. In October, he applied. But apart from an initial confirmation email
`
`from the university that his application had been received, several weeks passed
`
`without any response. Finally, in December, Heim followed up with Masters
`
`(now Chair of the Department) who told Heim that he was not being considered
`
`because his recommendations had not been received in time. The mix-up was
`
`apparently attributable to a technical snafu at the third-party online system
`
`13
`
`

`

`responsible for compiling application materials, leaving a frustrated Heim to
`
`wonder why no one had ever reached out to him about the missing documents
`
`even though it was widely known within the Department that he was applying.
`
`But all of that was a “red herring” anyway. Id. at 542. Eventually, after
`
`being pressed for further explanation by Heim, Masters put the “real reason,” id.,
`
`in an email:
`
`The department respects you and respects the fact that
`you continue to conduct your research as an adjunct
`professor. The technical reason we put down for not
`interviewing you is that we did not have letters and I
`told you that at the party. At the party I also gave you
`the “Cliff Notes” on the general feeling of the committee
`towards your application. Until now I have not given
`you chapter and verse because I am still happy to have
`you as a member of the department but you have now
`forced my hand on this. The fact is the committee did
`discuss your application and, as with many applicants
`with a track record, concluded that regardless of what
`any letters said we would not interview you for the
`position. Here is why:
`We are looking for someone who:
`1. Can teach and train students to conduct research in
`the modern (i.e. post Lucas Critique)
`macroeconomics that by your own admission
`everyone else but you and Ray Fair do[es]. Nothing
`in your credentials supports that possibility.
`2. Has a reasonable expectation of making tenure
`within the department within the 6 year tenure track
`
`14
`
`

`

`window. Here again the fact that you have a record
`speaks for itself. Nothing a letter writer can do can
`change that. The journals in which you have
`published do not achieve the standard that we expect
`for tenure. (Typically 4 articles in journals at the level
`of top field e.g. Journal of Monetary Economics or the
`International Economic Review.[)]
`3. Has sufficient synergies with our research agendas
`that we can learn from them and them from us with
`the possibility of constructive collaboration. Your
`work is not consistent with that expectation. Indeed,
`we rejected a number of applications that met the
`first 2 criteria above but they do New Keynesian
`macro that we do not appreciate.
`I hope you are not too discouraged by this and continue
`to teach and do your work within the department as an
`adjunct professor but the fact is that you will not be
`hired for this job.
`
`Id. at 597-98. Heim asked Masters to reconsider, “noting that DSGE economics
`
`had come under heavy criticism within the profession” including from two
`
`prominent economists, and urging that the Department would “benefit from
`
`having a recognized alternative, or at least by having a healthy debate on these
`
`issues in economics.” Id. at 545. Masters responded by simply dismissing those
`
`prominent critics as “old guys!” Id. The Department ultimately hired Ben Griffy, a
`
`recent Ph.D. whose research, like Masters’s, focused in part on macroeconomics
`
`and the labor market and who Heim believes also had limited familiarity with
`
`15
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`

`

`traditional Keynesian methods.
`
`II.
`
`Procedural Background
`
`A. Early Proceedings
`
`Heim filed this lawsuit in July 2018, initially asserting three causes of
`
`action: (1) a claim for damages pursuant to 42 U.S.C. § 1983 against Daniel and
`
`Masters for “violat[ing] plaintiff’s right of freedom of speech while acting under
`
`color of” state law; (2) a claim pursuant to § 1983 for injunctive relief against
`
`SUNY Albany President Rodriguez in the form of a court order to “prevent
`
`ongoing discrimination against Keynesian economists” in violation of the First
`
`Amendment; and (3) an age discrimination claim under New York State’s Human
`
`Rights Law. App’x 64-67.7
`
`In September 2018, Defendants moved to dismiss the Complaint, and in a
`
`ruling from the bench, the district court granted that motion in part, dismissing
`
`the second and third causes of action. Along the way, Heim abandoned any claim
`
`7 The Complaint also foreshadowed that “[u]pon issuance of a right to sue letter
`by [the U.S. Equal Employment Opportunity Commission],” Heim would seek
`leave to add an age discrimination claim under the Age Discrimination in
`Employment Act. App’x 67. That never happened, and the district court therefore
`“decline[d] to consider any claim under the ADEA.” Heim v. Daniel, No.
`1:18-CV-836, 2022 WL 1472878, at *1 n.2 (N.D.N.Y. May 10, 2022). Heim does not
`challenge that decision on appeal.
`
`16
`
`

`

`against President Rodriguez, SUNY Albany, and the broader SUNY system,
`
`opting to pursue only the First Amendment retaliation claim against Daniel and
`
`Masters. Heim does not challenge any of that on appeal.
`
`B. Summary Judgment
`
`His appeal targets what happened next. After the parties exchanged
`
`discovery on Heim’s sole remaining claim – First Amendment retaliation –
`
`Defendants moved for summary judgment in January 2022.
`
`In May 2022, the district court granted that motion and entered judgment
`
`for Defendants, holding in relevant part that the First Amendment did not
`
`insulate Heim’s academic speech from adverse action by his public university
`
`employer. Heim v. Daniel, No. 1:18-CV-836, 2022 WL 1472878, at *14 (N.D.N.Y.
`
`May 10, 2022). It arrived at that conclusion applying two separate First
`
`Amendment frameworks in the alternative and reaching the same result under
`
`both, reasoning (1) that academic research and writing are part of a public
`
`university professor’s “official duties,” dooming Heim’s claims under Garcetti v.
`
`Ceballos, 547 U.S. 410, 421 (2006); and (2) that even if Garcetti did not apply,
`
`Heim’s “complex statistical modeling intended for consumption by a relatively
`
`narrow audience” did not address any matter of public concern, warranting
`
`17
`
`

`

`dismissal under Pickering. Heim, 2022 WL 1472878, at *14. The court also offered
`
`yet another alternative basis for its ruling: that because Heim did not meet the
`
`hiring committee’s stated qualifications for the position, “a reasonable jury
`
`would be compelled to conclude that defendants would not have promoted
`
`plaintiff . . . regardless of plaintiff’s protected speech.” Id. at *16.8
`
`DISCUSSION
`
`Heim challenges each of those points on appeal. He contends that the
`
`district court erred by, among other things, (1) misconstruing the role that Heim’s
`
`Keynesian viewpoints played in his colleagues’ hiring decisions; (2) applying
`
`Garcetti to academic speech at all; (3) concluding, under Pickering, that Heim’s
`
`speech did not address any matter of public concern; and (4) failing to properly
`
`“balance the employee’s First Amendment interests against the employer’s
`
`8 The court also (1) concluded “that to the extent Heim’s § 1983 claim is based on
`the general First Amendment right of ‘academic freedom,’ that claim must be
`dismissed, Heim, 2022 WL 1472878, at *7; (2) rejected Heim’s argument that this
`case should be analyzed under a “limited public forum” analysis, id. at *17
`(adding that “‘forums’ are places, not people”); and (3) remarked that although
`its conclusions as to the merits made it “unnecessary” to address qualified
`immunity, that defense “almost certainly applies” to Defendants’ conduct in this
`case, id. at *16 n.14. Heim does not challenge any of that on appeal, and because
`we resolve the sole claim he continues to press on other grounds, we have no
`occasion to express any view as to the merits of those observations.
`
`18
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`

`

`legitimate interests.” Appellant’s Br. 49.
`
`Heim’s arguments are not altogether without merit. Although we affirm
`
`the district court’s ultimate disposition, we disagree with much of its reasoning.
`
`In particular, we disagree with its conclusions that Heim’s speech did not
`
`substantially motivate Defendants’ rejection of his candidacy, and that Heim’s
`
`speech did not address matters of public concern. We also join several other
`
`Circuits in recognizing that First Amendment retaliation claims founded upon
`
`speech that relates to academic scholarship or teaching are properly evaluated
`
`under Pickering’s employer/employee interest-balancing framework irrespective
`
`of whether, under Garcetti, that speech was part of an employee’s official duties.
`
`Ultimately, though, because Heim’s First Amendment retaliation claim cannot
`
`withstand that balancing test, it nonetheless fails.
`
`I.
`
`Legal Standards
`
`A. Standard of Review
`
`We review a district court’s grant of summary judgment de novo, “resolving
`
`all ambiguities and drawing all reasonable inferences” in favor of the
`
`non-movant. Woolf v. Strada, 949 F.3d 89, 92-93 (2d Cir. 2020) (internal quotation
`
`marks omitted). We affirm “only if there is no genuine issue of material fact and
`
`19
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`

`

`the prevailing party was entitled to judgment as a matter of law.” Harris v. Miller,
`
`818 F.3d 49, 57 (2d Cir. 2016) (internal quotation marks omitted).
`
`B. First Amendment Retaliation
`
`To establish a prima facie First Amendment retaliation claim, a plaintiff
`
`must show (1) “that the speech or conduct at issue was protected” from the
`
`particular retaliatory act alleged; (2) that the retaliatory act qualifies as an
`
`“adverse action [taken] against the plaintiff”; and (3) “that there was a causal
`
`connection between the protected speech and the adverse action.” Shara v.
`
`Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 82 (2d Cir. 2022) (internal quotation
`
`marks omitted). However, “[e]ven if the plaintiff makes out a prima facie
`
`retaliation claim, a government defendant may still receive summary judgment if
`
`it establishes its entitlement to a relevant defense.” Anemone v. Metro. Transp.
`
`Auth., 629 F.3d 97, 114 (2d Cir. 2011).
`
`The district court held, and Defendants do not dispute on appeal, that the
`
`Department’s refusal to hire Heim for the 2017 position qualifies as an adverse
`
`action.9 We therefore address below only the other, contested, elements of a First
`
`9 Nor, for the most part, could Defendants dispute that point. “In a First
`Amendment retaliation case, a government employer’s response to speech
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`Amendment retaliation claim.
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`constitutes an adverse action if it would deter a similarly situated individual of
`ordinary firmness from exercising his or her constitutional rights.” Connelly v.
`County of Rockland, 61 F.4th 322, 325 (2d Cir. 2023) (internal quotation marks
`omitted). This is a less “demanding” (that is, easier to satisfy) standard than the
`“materially adverse change in the terms and conditions of employment” test that
`we use to determine an “adverse action” in other employment contexts. E.g.,
`Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006) (internal quotation
`marks omitted). For purposes of First Amendment retaliation, an adverse action
`may include, among other things, “discharging, . . . demoting, reducing the pay,
`or reprimanding an employee” and, as especially relevant here, both “refusing to
`hire” and “refusing to promote” an applicant. Montero v. City of Yonkers, 890 F.3d
`386, 401 (2d Cir. 2018). Whether the 2017 decision not to interview Heim is better
`understood as a refusal to promote – a characterization Defendants have
`questioned, see App’x 872 (Daniel testifying: “The position of adjunct does not
`have the concept of promotion. An adjunct is a dead-end position. . . . The
`assistant professor position is a completely different position.”) – or a refusal to
`hire, it indisputably satisfies the “adverse action” requirement.
`The earlier acts of alleged retaliation present closer questions. The district
`court held that the circumstances surrounding the 2013 and 2016 hires did not
`amount to “sufficiently adverse actions,” emphasizing that Heim did not actually
`apply for either position, and brushing aside Heim’s arguments that “Daniel
`should not have discouraged him from applying” in 2013 and that the
`Department had “followed an improper internal or administrative process” in
`2016. Heim, 2022 WL 1472878, at *14. Because we reject Heim’s claim for other
`reasons, we need not decide whether those conclusions (which Heim does not
`challenge on appeal) faithfully reflect our permissive and fact-specific “adversity”
`standards in this context. See Hoyt v. Andreucci, 433 F.3d 320, 328 (2d Cir. 2006)
`(noting that “lesser actions may meet the adversity threshold” under what is “a
`heavily fact-specific, contextual determination”).
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`II.
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`Causation
`
`We begin with the causation requirement. To show causation, “a plaintiff
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`must show that the protected speech was a substantial motivating factor in the
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`adverse employment action.” Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir.
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`2015) (internal quotation marks omitted). Nevertheless, “[b]ecause protected
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`speech could not substantially cause an adverse action if the employer would
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`have taken that action in any event, a defendant can rebut a prima facie showing
`
`of retaliation by demonstrating by a preponderance of the evidence that it would
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`have taken the same adverse employment action even in the absence of the
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`protected conduct.” Nagle v. Marron, 663 F.3d 100, 111-12 (2d Cir. 2011) (internal
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`quotation marks omitted), citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
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`429 U.S. 274, 285-86 (1977) (“The constitutional principle at stake is sufficiently
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`vindicated if such an employee is placed in no worse a position than if he had not
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`engaged in the conduct.”).
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`With those principles in mind, Defendants insist that they “would have
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`declined to interview plaintiff even in the absence of any hostility to his allegedly
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`protected speech because he was not qualified for the position.” Appellees’ Br. 25.
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`The centerpiece of their argument is that Heim lacked any of the qualifications
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`articulated in Masters’s December 2017 email, which they characterize as: (1) “an
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`ability to teach and train students in contemporary research techniques”; (2) “a
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`research agenda that would permit collaboration with the Department’s other
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`faculty members”; and (3) “a publication record suggesting a strong likelihood of
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`receiving tenure.” Id. at 15-16.
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`But any attempt to construe those three requirements as content-neutral
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`cannot survive even a superficial look at Masters’s actual email. Justifiably or not,
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`the requirements were soaked in hostility to Keynesianism. At the outset, when
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`describing the requisite ability to teach and train students in contemporary
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`research, Masters explicitly defined “modern” as the sort of “post Lucas
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`Critique[] macroeconomics that by your own admission everyone else but you
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`and [one other economist] do[es].” App’x 597. In other words, to the Department,
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`“modern” was antonymous to “Keynesian.” Next, Masters’s explanation for why
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`Heim’s work was “not consistent” with the collaboration-friendly research
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`requirement was that the people in the Department Heim would be expected to
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`collaborate with “do not appreciate” Keynesian research perspectives. Id. at 598.
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`In fact, the Department had already “rejected” other applicants who “met the
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`[other] criteria” but “do New Keynesian macro.” Id. Finally, the third job
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`requirement, setting forth the Department’s publication expectations, is at least
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`on its face more content-neutral. But even if we take it at face value, the record
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`suggests that an applicant’s failure to meet the Department’s preferred
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`publication history standards was not on its own disqualifying. For example, at
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`the time he was hired, Griffy had also never published (except perhaps as a
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`research assistant) in the top journals Masters invoked in his email. Nor had Li.
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`Heim contends, moreover, that Defendants’ “self-reinforcing” assessment of the
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`“top” journals in the field, id. at 547, is also colored by the fact that those
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`particular journals “do not publish non-DSGE Keynesian articles,