Wrobel v. County of Erie, No. 10-5179 (2d Cir. 2012)
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Wrobel was a longtime employee of Erie County's highway division. In 1999, a newly elected Republican county executive appointed defendants as Wrobel’s supervisors. Over the next 18 months Wrobel’s run-ins with them resulted in harassment of him and his transfer to a faraway workplace. His direct supervisor, Naylon, repeatedly referred to employees that predated his tenure as being part of the “old regime,” and to the office under his supervision as the “new regime.” Following his transfer, Wrobel made anonymous complaints to public officials and a confidential report to the FBI, for which he claims he was further persecuted. Wrobel’s complaint alleged retaliation in violation of his First Amendment rights. He alleged that he suffered discrimination because he was apolitical, and not politically aligned with the “new regime.” The district court dismissed hi 42 U.S.C. 1983 complaint. The Second Circuit affirmed, holding that no reasonable jury could find that Wrobel’s mistreatment was caused by any political activity or inactivity.
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10-5179-cv Wrobel v. County of Erie 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Submitted: February 15, 2012 Decided: August 1, 2012) Docket No. 10-5179-cv - - - - - - - - - - - - - - - - - - - -x TIMOTHY M. WROBEL, Plaintiff-Appellant, - v.COUNTY OF ERIE, DOUGLAS NAYLON, Individually and in his official capacity as a County Employee, DANIEL RIDER, Individually and in his official capacity as a County Employee, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges. Timothy Wrobel appeals from a judgment entered in the 33 United States District Court for the Western District of New 34 York (Curtin, J.), dismissing on summary judgment his First 35 Amendment claims brought under 42 U.S.C. § 1983 against his 36 former employer, Erie County, and certain employees. 37 Because Wrobel failed to adduce evidence that his 1 mistreatment was caused by political association or by 2 speech about matters of public concern, we affirm. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Judge CALABRESI dissents in a separate opinion. Christen Archer Pierrot, Chiacchia & Fleming, LLP, Hamburg, N.Y. (Andrew P. Fleming, on brief), for Appellant. David Sleight, Erie County Department of Law, Buffalo N.Y., for Appellees County of Erie and Daniel Rider. Robert Louis Boreanaz, Lipsitz Green Scime Cambria LLP, Buffalo, N.Y., for Appellee Douglas Naylon. DENNIS JACOBS, Chief Judge: Timothy Wrobel appeals from a judgment entered in the 17 United States District Court for the Western District of New 18 York (Curtin, J.), dismissing on summary judgment his First 19 Amendment claims brought under 42 U.S.C. § 1983 against his 20 former employer, Erie County, and certain employees. 21 Because Wrobel failed to adduce evidence that his 22 mistreatment was caused by political association or by 23 speech about matters of public concern, we affirm. 24 Wrobel was a longtime employee of Erie County's highway 25 division. In 1999, a newly elected Republican county 26 executive appointed the defendants as Wrobel s direct and 27 indirect supervisors. 28 Wrobel s run-ins with them resulted in harassment of him and Over the next eighteen months 2 1 his transfer to a faraway workplace. His direct supervisor, 2 defendant Douglas Naylon, repeatedly referred to employees 3 that predated his tenure as being part of the old regime, 4 and to the office under his supervision as the new regime. 5 Following his transfer, Wrobel made anonymous complaints to 6 public officials and a confidential report to the FBI, for 7 which he claims he was further persecuted. 8 complaint alleges retaliation in violation of his First 9 Amendment rights to free association and free speech. Wrobel s The 10 thrust of the complaint is that Wrobel suffered 11 discrimination because he was apolitical, and not 12 politically aligned with the new regime. 13 conclude that no reasonable jury could find that Wrobel s 14 mistreatment was caused by any political activity--or 15 inactivity--we affirm the district court s grant of summary 16 judgment in favor of defendants. Because we 17 18 19 BACKGROUND Timothy Wrobel worked as a blacksmith at a highway 20 maintenance facility of the Erie County highway department 21 called the Aurora barn. 22 succeeded Democrat Dennis Gorski as Erie County Executive. In 1999, Republican Joel Giambra 3 1 The new administration hired defendant Naylon as the senior 2 highway maintenance engineer at the Aurora barn, in charge 3 of day-to-day activities, including direct oversight of 4 Wrobel and the other employees; defendant Rider was hired to 5 run the entire highway department. 6 The record on summary judgment is extensive, but the 7 salient facts can be summarized. Immediately after the 8 defendants were hired by the county, Wrobel and his 9 coworkers clashed with them. In January 2001, Wrobel 10 confronted Naylon about what he perceived to be rudeness and 11 disrespect. 12 Aurora barn was Wrobel and other workers from what Naylon 13 labeled the old regime, and suggested that Wrobel should 14 transfer to another facility. 15 Naylon responded that the trouble with the A few months later, Wrobel received written notice to 16 appear for a disciplinary hearing on six charges: 17 insubordination stemming from the January confrontation, 18 falsifying his daily reports, leaving the job-site without 19 permission, lateness, excessive breaks, and personal use of 20 his work phone. 21 that Rider transferred Wrobel to another maintenance 22 facility, the Tonawanda plant. The upshot of the disciplinary hearing was 4 The transfer greatly 1 lengthened Wrobel s commute, and the stress of this ordeal 2 caused him to miss work for several weeks. 3 Although Wrobel admitted to some of the misconduct, he 4 grieved the discipline on the ground that it was actually 5 punishment for his friendship with Naylon s predecessor (and 6 that Naylon s work expectations were unrealistic). 7 arbitrator ruled for the county, finding that [t]he 8 grievant seemed determined to function as an independent 9 contractor, and that Wrobel justified his occasional An 10 tardiness because no one ever complained to him about it. 11 (J.A. 272-73.) 12 Soon after Wrobel s transfer, his wife joined with some 13 of his former colleagues to expose Naylon and Rider s 14 mistreatment of county workers, as well as other improper 15 behavior they believed to be taking place in the highway 16 department, such as misusing public funds and operating 17 county equipment while intoxicated. 18 sent letters about the Aurora barn--signed only by 19 Concerned Erie County Employees --to the state Democratic 20 chairman and the New York State attorney general complaining 21 about the state of affairs at the Aurora barn. 22 wife also followed Naylon with a camera to catch him 5 In May 2001, the group (Wrobel s 1 misusing county equipment.) 2 others met with an FBI agent to float similar allegations 3 about Naylon. 4 In August 2001, Wrobel and Wrobel alleges that Naylon and Rider punished him for 5 speaking out against them. Specifically, Naylon harassed 6 him, told him to tell his wife to stay away from all County 7 buildings, and accused him of being in contact with a former 8 Aurora barn employee. 9 Tonawanda plant, an Erie County sheriff questioned Wrobel Shortly after his transfer to the 10 about a theft of wood from the Aurora barn, and Wrobel 11 alleges that the defendants inspired the inquiry. 12 During his tenure at the highway department, Naylon was 13 overt in his dislike for those who had preceded him in the 14 Aurora barn and his desire to purge the facility s 15 hold-overs. 16 veteran of the Highway department, to advise as to who were 17 the good guys and bad guys, who were the employees that 18 do their jobs and who are the goof offs. 19 demurred and told Naylon that he would soon figure it out 20 himself. 21 a retired employee, Gary Kane, to stop coming by the Aurora 22 barn. Early on, Naylon asked Wrobel, as a 22-year Wrobel A few months later, Naylon ordered Wrobel to tell Naylon told Wrobel that it doesn t look good for me 6 1 and Joel Giambra and the new administration. 2 from the Gorski administration, tell him to be on his merry 3 way and enjoy himself. 4 Kane as part of an old regime. 5 (J.A. 696.) He s retired Naylon referred to Two former employees of the Aurora barn similarly 6 suffered under Naylon s management. Anthony Marchitte was 7 transferred from the Aurora barn to the Angola barn against 8 his will, after being told the transfer was in his best 9 interests. Naylon gloated the fat cat has just begun to 10 sing . . . all you guys are going to be gone . . . things 11 are really going to change around here. 12 Wrobel s friend Timothy Elliot was also transferred from the 13 Aurora barn in early 2001. 14 called him into his office and told him that everything has 15 to go through us, that was the old regime, this is the new 16 regime, and if you're not with us, you re against us. 17 (J.A. 1008.) 18 (J.A. 1003.) Before his transfer, Naylon Other employees provided similar accounts. Paul 19 Rebrovich was asked by Naylon if he was appointed by Gorski, 20 and whether he was backed by the Gorski administration or 21 the current administration. 22 in his position was appointed by an administration and that Rebrovich told him that nobody 7 1 he had never been politically active. 2 to him that, eventually, we re going to get our own people 3 in here and get rid of this old regime. 4 Naylon also boasted (J.A. 946-47.) Wrobel s deposition recounts a single instance in which 5 political affiliation was discussed. On Naylon s first day 6 on the job, he asked Wrobel about his political affiliation, 7 and Wrobel told him that he was a Republican (as was 8 Naylon). 9 his transfer out of Aurora, Naylon said to him we know you 10 guys are all democrats, hired by the other administration. Elliot likewise reported a single instance: before 11 Wrobel s complaint alleged (relevant to this appeal) 12 that defendants violated his (1) First Amendment right to 13 freedom of association by harassing him because of his 14 political association with the previous county 15 administration and (2) First Amendment right to freedom of 16 speech by retaliating against him for speaking about matters 17 of public concern taking place within the Erie County 18 highway department. 19 that both claims were adequately pleaded. 20 Cnty. of Erie, 211 F. App x 71, 72-73 (2d Cir. 2007). 21 discovery closed, defendants successfully moved for summary 22 judgment on the ground that Wrobel had adduced insufficient 23 evidence to raise a question of fact on either claim. An earlier panel of this Court found 8 See Wrobel v. After 1 2 DISCUSSION We review de novo a grant of summary judgment, viewing 3 the evidence in the light most favorable to the non-moving 4 party and drawing all reasonable inferences in that party s 5 favor. 6 (2d Cir. 2011). 7 the evidence is so one-sided that one party must prevail as 8 a matter of law. 9 (2d Cir. 1996) (internal quotation marks omitted). See Costello v. City of Burlington, 632 F.3d 41, 45 Summary judgment is only appropriate when Kulak v. City of New York, 88 F.3d 63, 70 10 11 12 I Public employees do not surrender their First 13 Amendment rights to comment on matters of public interest by 14 virtue of their acceptance of government employment. 15 v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2004) (citing Pickering 16 v. Bd. of Educ., 391 U.S. 563, 568 (1968)). 17 Amendment right extends to associational conduct, including 18 the decision not to support or affiliate with a political 19 party or faction. 20 employment on the provision of support for the favored 21 political party unquestionably inhibits protected belief and 22 association. 23 U.S. 62, 69 (1990) (internal quotation marks omitted). Cobb The First Id. at 102. [C]onditioning public Rutan v. Repulican Party of Illinois, 497 9 To 1 succeed on a First Amendment claim brought pursuant to 2 Section 1983, a plaintiff must be able to demonstrate that 3 (1) the conduct at issue was constitutionally protected, (2) 4 the alleged retaliatory action adversely affected his 5 constitutionally protected conduct, and (3) a causal 6 relationship existed between the constitutionally protected 7 conduct and the retaliatory action. 8 317 F.3d 153, 160 (2d Cir. 2003). 9 See Camacho v. Brandon, The First Amendment is thus violated when state 10 officials engage in quintessential political patronage, as 11 when a newly-elected county sheriff sought to fire 12 Republican deputies to provide jobs to Democrats, see Elrod 13 v. Burns, 427 U.S. 347, 372-73 (1976) (plurality opinion); 14 when a public defender sought to dismiss Republican 15 assistants based on party affiliation, see Branti v. Finkel, 16 445 U.S. 507, 517 (1980); and when a Governor was giving 17 permission for the hiring, transferring, promotion, and 18 recalling of only state employees who were Democrats, see 19 Rutan, 497 U.S. at 69. 20 The protection of these cases has been extended to 21 politically neutral employees who are treated less favorably 22 than employees politically aligned with those in power, see 23 Welch v. Ciampa, 542 F.3d 927, 939 & n.3 (1st Cir. 2008); 10 1 Gann v. Cline, 519 F.3d 1090, 1095 (10th Cir. 2008); Galli 2 v. New Jersey Meadowlands Comm n, 490 F.3d 265, 273 (3d Cir. 3 2007), as well as to employees who suffer because of their 4 political support of a losing faction of the party in power, 5 see McCloud v. Testa, 97 F.3d 1536, 1551 (6th Cir. 1996). 6 However, not every association of a public employee can 7 support a Section 1983 claim. When employee expression 8 cannot be fairly considered as relating to any matter of 9 political, social, or other concern to the community, 10 government officials should enjoy wide latitude in managing 11 their offices, without intrusive oversight by the judiciary 12 in the name of the First Amendment. 13 U.S. 138, 146 (1983). 14 associational conduct touches on a matter of public 15 concern can a First Amendment claim proceed. 16 F.3d at 102; accord Klug v. Chi. Sch. Reform Bd. of Trs., 17 197 F.3d 853, 857 (7th Cir. 1999); Boals v. Gray, 775 F.2d 18 686, 692 (6th Cir. 1985). 19 class of activity is beyond the scope of the First 20 Amendment s protections for public employee speech. 21 Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 781 22 (2d Cir. 1991) ( [N]ot all speech by a public employee can 23 provide the basis for a constitutional cause of action. ). Connick v. Myers, 461 Only if an employee s speech or Cobb, 363 Conduct that falls outside this 11 See 1 The public-concern requirement reflects both the historical 2 evolvement of the rights of public employees, and the common 3 sense realization that government offices could not function 4 if every employment decision became a constitutional 5 matter. 6 speech is on a matter of public concern is a fact-intensive 7 inquiry; nevertheless it is a question of law for the court 8 to decide. 9 1999). 10 Connick, 461 U.S. at 143. Whether association or See Lewis v. Cohen, 165 F.3d 154, 164 (2d Cir. Wrobel characterizes his associational conduct as not 11 pledg[ing] his support for the Giambra administration and 12 cho[osing] not to affiliate himself politically with it. 13 (Appellant Br. 11.) 14 that retaliation for such conduct, if adequately proven, 15 could give rise to Section 1983 liability. 16 App x at 72. 17 evidence submitted on summary judgment is sufficient to raise 18 a question of material fact, such that a jury could find that 19 Wrobel did in fact engage in associational conduct related to 20 a matter of public concern, and that defendants mistreated 21 him as a result of that conduct. In Wrobel s first appeal, we decided Wrobel, 211 F. Accordingly, we now consider only whether the 22 23 12 1 The dispositive issue for Wrobel s free association 2 claim is the causal relationship between the association 3 identified and his transfer. 4 indifference was the reason Naylon and Rider mistreated him, 5 he relies principally on Naylon s references to an old 6 regime and a new regime. 7 does in fact distinguish between employees brought in by 8 Naylon and those already there when he arrived, there is no 9 evidence or available inference that this distinction is 10 political in the sense that it relates to any political, 11 social, or other community concern. 12 146. 13 about his friends at work, ordered him to tell a friendly 14 former co-worker to stay away from the Aurora barn, and 15 blamed the old regime for difficulties at the Aurora barn. 16 Nothing in the record demonstrates that the dysfunction at 17 the Aurora barn was related to anyone s political 18 association. 19 office politics that, no matter how severe or how 20 reprehensible, does not violate the First Amendment. 21 Klug, 197 F.3d at 858. 22 generalized references to a heightened standard of 23 performance in the wake of a change of political regime. To prove that his political Assuming that this designation See Connick, 461 U.S. at Wrobel submitted evidence that Naylon questioned him The record shows instead a toxic form of See Wrobel alleges no more than 13 1 That is simply to be expected when the voters replace one set 2 of managers with another; the recently-elected call it 3 reform. 4 old regime , without more, cannot transform incompetent and 5 heavy-handed management into a violation of the First 6 Amendment. Naylon s passing references to a new regime and an 7 Wrobel points to one sentence of Timothy Elliot s 8 affidavit, quoting Naylon as stating we know you guys are 9 all democrats, hired by the other administration. (J.A. 10 1008.) 11 material fact as to whether Wrobel was being retaliated 12 against for protected associational conduct: Naylon knew 13 Wrobel to be a Republican. 14 affidavit renders any inference in Wrobel s favor even more 15 implausible. 16 new team and I want to know if you re going to be on my 17 team. 18 the idea that Naylon was rejecting employees on the basis of 19 partisan favoritism. 20 This statement is not enough to create an issue of And the content of the Elliot Naylon also told Elliot that we re forming a (J.A. 1008.) This invitation is incompatible with The record does support Wrobel s assertion that he did 21 not pledge support for or politically align himself with the 22 Giambra administration. 23 sequitur in the context of this case. That association, however, is a non 14 Wrobel was never asked 1 to donate to, volunteer for, or lend support to any political 2 candidate when Naylon was his supervisor. 3 registered Republican (the same as Naylon and Rider), he had 4 no political affiliation or alliance at the office, and never 5 discussed politics with anyone at the office. 6 employee can no more be discriminated against for being 7 apolitical than for being a member of the wrong political 8 party. 9 However, the record must still support the fact that such a Other than being a True, an See Morin v. Tormey, 626 F.3d 40, 44 (2d Cir. 2010). 10 political association exists. 11 showing that any employee did politically align with or 12 pledge allegiance to the Giambra administration, how an 13 employee would do that, or how he would be rewarded for doing 14 so. 15 Wrobel cites no evidence There is good reason to hold the plaintiff to his burden 16 of proof in a free association case such as this. 17 administrations and officials will often be brought into 18 office specifically because of dissatisfaction with the 19 status quo, and may be expected to implement reforms. 20 employees, especially those in under-performing jobs or 21 facilities, will often be let go to make room for employees 22 who are more capable, trusted or enthusiastic. 23 record evidence that Naylon and others believed the Aurora 15 New Old There is 1 barn to be troubled. It is to be expected that employees 2 affected by a new regime may resist reform measures 3 regardless of political loyalties. 4 context, it is to be expected that employees will be fired, 5 demoted, or transferred soon after the change in 6 administration, with the result that there is temporal 7 proximity between the change in regime and the adverse 8 employment action. Moreover, in a reform 9 Absent evidence that the adverse employment action was 10 politically motivated, the First Amendment gives a court no 11 license to intervene in a public workplace whenever a new 12 administration redeploys its workforce. 13 political motivation can take different forms. 14 patronage, the record will often reveal that the plaintiffs 15 were replaced by members or supporters of the ascendant 16 party, or treated less favorably. 17 at 351. 18 decision not to politically associate. 19 at 935 (plaintiff replaced by vocal supporter of prevailing 20 faction); Galli, 490 F.3d at 269 (plaintiff told by superior 21 that her office was letting Republicans go, that some 22 Democrat [obviously] wants the spot, and that one has to 23 pay to play with this administration (alterations in Evidence of In cases of See, e.g., Elrod, 427 U.S. This is so even if the associational conduct was the 16 See Welch, 542 F.3d 1 Galli)). 2 form of overt pressure to work in a campaign, or donate to 3 it, or vote a certain way. 4 that an employee was adversely treated on account of a 5 political association or abstention, any mistreatment of an 6 apolitical public employee would go to a jury on a 7 constitutional claim. 8 J., dissenting). 9 Evidence of political motivation may come in the But unless evidence is required See Galli, 490 F.3d at 277 (Baylson, Wrobel has not sustained his burden at summary judgment 10 of creating a genuine issue of fact as to whether his 11 mistreatment was the result of his lack of political 12 allegiance to the new administration. 13 evidence that the new administration viewed the Aurora barn 14 as in need of reform. 15 mistreatment coupled with political abstention--there must be 16 some evidence that the two are related, or an available 17 inference that it is so. 18 old regime adds little or nothing. 19 always be expected to avow an improvement in public services. 20 To survive a motion under Rule 56(c), Wrobel needed to create 21 more than a metaphysical possibility that his allegations 22 were correct; he needed to come forward with specific facts 23 showing that there is a genuine issue for trial. There is ample It is not enough for Wrobel to show Naylon s passing references to the 17 New appointees may Matsushita 1 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 2 586-87 (1986) (internal quotation marks omitted). 3 not. He has 4 5 6 II Wrobel s second claim is that he suffered retaliation 7 for speaking out against Naylon and Rider s treatment of 8 employees and misuse of county property. 9 required for a free speech claim is the same as for a free The showing 10 association claim. To prevail on a Section 1983 free speech 11 claim, a public employee must demonstrate (1) his speech 12 addressed a matter of public concern, (2) he suffered an 13 adverse employment action, and (3) a causal connection 14 between the speech and the adverse employment action. Singh 15 v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008). Even 16 assuming that Wrobel has identified speech that touches on a 17 matter of public concern, he has failed to show an adverse 18 employment action or a causal connection between the speech 19 and employment conditions that Wrobel deems adverse. 20 21 A 22 Wrobel cites four instances of speech touching on a 23 matter of public concern: (1) a May 1, 2001 letter to the 18 1 state chairman of the Democratic party complaining of 2 Naylon s management style, misuse of county property, and 3 corruption; (2) a similar letter sent to the New York State 4 attorney general on May 17, 2001; (3) a July 2001 phone call 5 by Wrobel s wife to the New York attorney general s office, 6 the content of which is unknown; and (4) an August 23, 2001 7 meeting in which the Wrobels and other county workers met 8 with an FBI agent to complain about Naylon s management 9 style, misuse of county property, and corruption. 10 Not all of the communications can be attributed to 11 Wrobel, and not all address matters of public concern. 12 letters to public officials were anonymous. 13 evidence in the record of a July 2001 phone call allegedly 14 made by Wrobel s wife and, in any event, there is nothing to 15 suggest that Wrobel participated in such a call. 16 grievances of the county employees related chiefly to the 17 internal workings of the highway department, such as Naylon s 18 mistreatment of employees, and therefore were not of public 19 concern. 20 The There is no The See Connick, 461 U.S. at 147. Nevertheless, we can safely assume for purposes of this 21 appeal that Wrobel has proffered some evidence of speech on 22 matters of public concern. 23 misused county equipment, falsified records, and directed Wrobel s statements that Naylon 19 1 county business to friends are arguably of public interest. 2 See Johnson v. Ganim, 342 F.3d 105, 112-13 (2d Cir. 2003). 3 [M]atters of public concern do include speech aimed at 4 uncovering wrongdoing or breaches of the public trust. 5 Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993). 6 7 8 9 B In the context of a First Amendment retaliation claim, 10 we have held that only retaliatory conduct that would deter a 11 similarly situated individual of ordinary firmness from 12 exercising his or her constitutional rights constitutes an 13 adverse action. 14 217, 225 (2d Cir. 2006) (internal quotation marks and 15 alterations omitted); see also Burlington N. & Santa Fe Ry. 16 Co. v. White, 548 U.S. 53, 57 (2006) (holding that 17 antiretaliation provisions of Title VII apply where employers 18 actions could well dissuade a reasonable worker from making 19 or supporting a charge of discrimination ). 20 adverse actions has included harsh measures, such as 21 discharge, refusal to hire, refusal to promote, reduction in 22 pay, and reprimand, as well as some lesser sanctions, such as 23 failure to process a teacher s insurance form, demotion, Zelnik v. Fashion Inst. of Tech., 464 F.3d 20 The list of 1 reassignment to a place that aggravated physical 2 disabilities, and express accusations of lying. 3 Id. The main act of retaliation cited by Wrobel--his transfer 4 to Tonowanda--predates his speech on a matter of public 5 concern. 6 of retaliation that began soon after the anonymous letters 7 were sent: (1) a July 1, 2001 interrogation, undertaken by 8 Rider without the presence of a union representative, in 9 which he told Wrobel to tell his wife to stay out of the To fill that gap, Wrobel relies on three more acts 10 County buildings ; (2) Wrobel s questioning by a county 11 sheriff about a theft at the Aurora barn; and (3) defendants 12 (orchestrated) false testimony at Wrobel s arbitration 13 hearing in 2002.1 14 As to (1) and (2), such de minimis slights and insults do 15 not amount to retaliation. Id. 16 First Amendment to hold that harassment for exercising the 17 right of free speech was always actionable no matter how 18 unlikely to deter a person of ordinary firmness from that 1 It would trivialize the Wrobel s brief also portrays as retaliatory conduct the fact that his name appeared on Giambra s so-called layoff list. However, Wrobel was not laid off as a result, and there is no suggestion that he suffered some other adverse employment change as a result of appearing on that list. 21 Id. at 226 (internal quotation marks omitted).2 1 exercise. 2 The evidence does not support an inference that the July 1 3 interaction between Rider and Wrobel was the type of conduct 4 that would deter an individual of ordinary firmness from 5 exercising his or her constitutional rights. 6 F.3d at 225 7 questioning of Wrobel. 8 defendants initiated the investigation or accused Wrobel of 9 theft, and the entire encounter consisted of a few polite 10 11 Zelnik, 464 The same is true of the sheriff deputy s No competent evidence suggests that questions, after which Wrobel was left alone. The incident involving the grievance hearing contesting 12 Wrobel s transfer has no support in the record. Wrobel s 13 brief speculates, on information and belief, that 14 defendants encouraged and bribed employees to testify 15 against Mr. Wrobel, offering at least one employee a 16 promotion in exchange for his negative testimony. 17 (Appellant s Br. 43.) 18 from Rider to Naylon asking him to attend the hearing and 19 bring other employees who did not want him back. The only evidence cited is an email 2 The email However, a critical mass of minor incidents may support a claim for retaliation. Zelnik, 464 F.3d at 225; Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) ( Our precedent allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass. ). 22 1 is evidence that defendants disliked Wrobel; but Rider s 2 defense of his past decision to transfer Wrobel is not 3 retaliatory. 4 5 6 C Even if Wrobel had produced evidence that defendants took 7 action sufficiently severe to constitute retaliation, Wrobel 8 would still be required to produce evidence of a causal 9 relationship between his speech--sending anonymous letters to 10 state officials, and speaking confidentially with the FBI-- 11 and the retaliation. 12 A causal relationship can be demonstrated either 13 indirectly by means of circumstantial evidence, including 14 that the protected speech was followed by adverse treatment, 15 or by direct evidence of animus. 16 Suffolk, 316 F.3d 368, 383 (2d Cir. 2003). 17 of such circumstantial evidence depends on the circumstances 18 of each case. 19 anonymously or confidentially, [i]t is only intuitive that 20 for protected conduct to be a substantial or motiving factor 21 in a decision, the decisionmakers must be aware of the 22 protected conduct. 23 488, 493 (3d Cir. 2002). See Mandell v. Cnty. of The sufficiency However, when (as here) the speech was made Ambrose v. Twp. of Robinson, 303 F.3d 23 1 Wrobel argues that a jury could infer that defendants 2 knew of his speech because they became aware in August 2001 3 that someone had anonymously submitted photographs of highway 4 department personnel using county equipment on private 5 property. 6 jury to find that defendants believed Wrobel was the person 7 responsible for these photographs. 8 inference on the basis that in April 2002 Rider called 9 Wrobel s wife a liar at an arbitration concerning his It would be wholly speculative, however, for a Wrobel argues for the 10 transfer to Tonawanda. The incident occurred eight months 11 later, and Rider s statement is vague and without context.3 12 reasonable jury could not find a causal connection between 13 Wrobel s confidential and anonymous statements, and the 14 conduct alleged to be retaliatory. A 15 16 17 18 CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. 3 Wrobel also argues that knowledge of Wrobel s speech can be inferred from Naylon s statement at the March 2001 disciplinary hearing that I don t give a f*** what legislator called me, it is not going to do you any good here. (J.A. 426.) Days earlier, Wrobel s wife had called to county legislators to complain of Naylon s mistreatment of his subordinates. However, her complaints did not touch on matters of public concern. See Connick, 461 U.S. at 147. 24 1 CALABRESI, J., dissenting: 2 I agree with the majority opinion in its description of the facts and history of this case, its 3 statements of the controlling law in Parts I and II, and its ruling that Wrobel failed to raise 4 questions of material fact warranting a trial on his First Amendment speech claim. I respectfully 5 dissent, however, because I believe that Wrobel has adduced sufficient evidence to permit a trial 6 on his First Amendment political association claim. 7 Undoubtedly, newly elected administrations are permitted to pursue reform. Such reform 8 might well include ridding a public agency of underperforming employees hired by preceding 9 administrations. And there is certainly evidence in the record that supports the defendants 10 claims that Wrobel and other employees hired by the preceding administrations were disobedient 11 and inefficient. Even if these claims were shown to be true, however, the record is also rife with 12 allegations of the defendants harassing their employees or otherwise treating them uncivilly. The 13 tactics allegedly adopted by the defendants remind us that reform may carry its own abuses. 14 But such abuses, as the majority rightly emphasizes, do not without more amount to a federal 1 1 claim. Specifically, for a First Amendment political association claim to be valid, there must be 2 evidence that the abuses were politically motivated. 3 Unlike the majority, I believe that the record before us contains evidence that would 4 permit a jury to conclude that an impermissible political agenda motivated the defendants 5 treatment of Wrobel. Considered on their own and without some indication of a political context, 6 Naylon s many references to replacing old regimes with new regimes and forming new 7 teams do not carry political valence. These terms could simply serve, in Naylon s manner of 8 talking, to draw non-political lines between previously hired workers and Giambra s newer, and 9 assertedly more effective, employees. In this I agree with the majority. Nevertheless, there is one 10 statement in the record acknowledged, but I think undervalued, by the majority that I think 11 would allow a jury to read political valences into all those otherwise neutral references. 12 Timothy Elliott stated in his affidavit of May 24, 2010: At one point during one of the 13 initial conversations I had with Naylon, he told me that, we know you guys are all democrats, 14 hired by the other administration . . . . As I read the record, a jury could find that Naylon s 15 remark about democrats was made in the same time frame as his other statements regarding 2 1 regimes and teams. And, if it did so find, a jury could conclude that, for Naylon, the old 2 regime was equivalent to democrats, i.e., Naylon s political antagonists. A jury could then 3 reasonably also find that Naylon s campaign to get rid of [the] old regime constituted a 4 politically motivated purge. 5 Of course, Wrobel had declared himself a Republican during an early meeting with 6 Naylon. But Wrobel has also alleged that notwithstanding this early declaration 7 Naylon later accused him of being part of the old regime and in the same boat as Elliott and 8 other pre-Giambra hires. In light of Wrobel s allegations and Elliott s testimony, it would be 9 entirely plausible for a jury to conclude (a) that Naylon considered Wrobel part of a faction 10 politically opposed to Giambra, and (b) that Naylon took adverse actions against him for this 11 reason. 12 The facts of this case render our disposition a close call. But, all things considered, I 13 would let a jury decide the validity of Wrobel s political association claim. For that reason, I 14 respectfully DISSENT. 3
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