Anemone v. Metro. Transp. Auth.

• Decision Date: 04 January 2011
• Docket Number: Docket No. 08-2646-cv
• Citation: 629 F.3d 97
• Parties: Louis R. ANEMONE, Plaintiff-Appellant, v. METROPOLITAN TRANSPORTATION AUTHORITY, Peter S. Kalikow, Katherine N. Lapp, Gary J. Dellaverson, and Matthew D. Sansverie, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

629 F.3d 97

Louis R. ANEMONE, Plaintiff-Appellant,

v.METROPOLITAN TRANSPORTATION AUTHORITY, Peter S. Kalikow, Katherine N. Lapp, Gary J. Dellaverson, and Matthew D. Sansverie, Defendants-Appellees.

Docket No. 08-2646-cv.

United States Court of Appeals, Second Circuit.

Argued: June 23, 2009.

Decided: Jan. 4, 2011.

Matthew D. Brinckerhoff, Emery Celli Brinckerhoff & Abady LLP, New York, N.Y. (O. Andrew F. Wilson and Elora Mukherjee, on the brief), for Plaintiff-Appellant.

Louis Pechman, Berke-Weiss & Pechman LLP, New York, NY, for Defendant-Appellee Matthew D. Sansverie.

Neil H. Abramson, Proskauer Rose LLP, New York, N.Y. (Joshua F. Alloy, on the brief), for Defendants-Appellees Metropolitan Transportation Authority, PeterS. Kalikow, Katherine N. Lapp, and Gary J. Dellaverson.

Before: MINER, LIVINGSTON, Circuit Judges, and TRAGER, District Judge.^*

LIVINGSTON, Circuit Judge:

Plaintiff-appellant Louis Anemone ("Anemone") was, until May 2003, the Director of Security and a Deputy Executive Director of the Metropolitan Transportation Authority ("MTA"). He alleges that his former employer and the individual MTA Defendants, Peter Kalikow, Katherine Lapp, Gary Dellaverson, and Matthew Sansverie (collectively, "Defendants"), took a series of adverse employment actions against him, culminating in his termination, as a result of his protected speech highlighting the MTA's perceived failure to address his corruption concerns. He claims that they thereby violated his free speech rights under the federal and New York State constitutions. Anemone also alleges that Defendants' conduct violated his due process rights under both the federal and state constitutions. He appeals from a May 2, 2008, grant of summary judgment in Defendants' favor entered in the Southern District of New York (Loretta A. Preska, Chief Judge ). Because we conclude (1) that any reasonable jury would have to find that Anemone would have been suspended and then terminated even absent any retaliatory intent on the Defendants' part engendered by his allegedly protected speech, such that Defendants are entitled, under Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), to a defense to all Anemone's First Amendment claims, and (2) that the district court correctly rejected the procedural due process claims, we affirm.

BACKGROUND

I. Factual Background¹

Anemone was hired on an at-will basis in December 2001 to serve as the first Director of Security and a Deputy Executive Director of the MTA. In this role, he had overall responsibility for the security of the MTA's infrastructure and the safety of its transportation system. The Chief of Police of the MTA Police Department ("MTA PD") and the security directors of the MTA's various operating agencies reported directly to him. Anemone supervised the day-to-day operations of the MTA PD, coordinated security operations of various groups connected with the MTA, and led task forces in assessing threats to the MTA; developing means of mitigating MTA security vulnerabilities; and seeking grants from the Federal Emergency Management Agency to address weaknesses in the MTA's infrastructure. Before taking this position, Anemone had served in the New York Police Department ("NYPD") for 35 years, becoming the Chief of Department before retiring in 1999. As Director of Security of the MTA, Anemone was expected to and did cooperate with various investigatory agencies, including the Manhattan and Queens District Attorneys' offices and the MTA's Office of the Inspector General ("OIG"). Although theparties dispute the extent to which press relations constituted a part of Anemone's responsibilities, Anemone contends that he spoke with the press only if directed by Katherine Lapp, the MTA's Executive Director, or Peter Kalikow, its Chairman.

Subsequent to Anemone's hiring, Nicholas Casale was hired as Deputy Director of Security for the MTA, reporting directly to Anemone. Casale had previously worked for Anemone in the NYPD and was recruited by him to join the MTA. While at the MTA, Casale and Anemone together created the Joint Infrastructure Task Force ("JITF"), a subdivision of Anemone's operations, to spearhead the MTA's efforts to secure its infrastructure from terrorist threats.

Before the events at issue here, both Anemone and Casale had been involved in conducting corruption investigations at the MTA.² The first such investigation arose when Anemone discovered that several MTA contractors were submitting "inflated and unreasonable bills" for their work for the MTA. With Casale, and in consultation with Gary Dellaverson, the MTA's Director of Labor Relations and a fellow Deputy Executive Director, Anemone began investigating these billing practices and discovered evidence of fraud on the part of the contractors Geller Alarms and I-Lite Electric. Anemone briefed his superior, Lapp, on his findings and on the potential involvement of at least two MTA employees. Together, they decided to refer the matter to the Manhattan District Attorney's office ("Manhattan DA's office"), which then opened its own investigation. Around the same time, Anemone also began an investigation of another contractor, Figliolia Plumbing, based on a tip from Dellaverson. The investigations ultimately resulted in guilty pleas by the MTA employees involved and the payment by I-Lite Electric and Figliolia Plumbing of substantial restitution to the MTA. See Anemone v. Metro. Transp. Auth., No. 05 Civ. 3170, 2008 WL 1956284, at *2 (S.D.N.Y. May 2, 2008).

Based in part, although certainly not exclusively, on his conduct during these corruption investigations, Anemone's deputy, Casale, engendered a series of complaints. These included a complaint to Lapp from an Assistant District Attorney in the Manhattan DA's office that during the I-Lite investigation Casale "was undertaking his own investigation, in direct contravention to what their [office's] investigation was." Lapp Dep. at 124. Lapp, who herself had extensive criminal justice experience prior to joining the MTA, indicated that this complaint raised "serious concerns" and she "did not have the [level] of comfort that [Anemone] was supervising [Casale] as closely as [she] might want." Id. at 170. Kalikow had also complained directly to Anemone that Casale was like "a bull in a china shop" and had requested that Anemone fire him, although Kalikow had been dissuaded from this position at that time. Anemone Dep. at 77-78. There had also been complaints from the MTA Police Benevolent Association and from an Assistant General Counsel for the MTA. Finally, Dellaverson asserted that a number of people had complained to him "that Anemone was in essence tolerating this seriously bullshit, gross, abusive behavior on Casale's part at virtually every turn." Dellaverson Dep. at 220. Anemone has acknowledged both that he receivedcomplaints from various sources and that Casale "was very rough around the edges." Anemone Dep. at 68. He has also admitted that he did not conduct any further inquiry into the complaints but instead defended his deputy, stating to Kalikow, for example, that Casale "wasn't hired to make friends." Id. at 77.

The instant controversy arose out of several conversations alleged to have taken place among Dellaverson, Anemone, and Casale regarding the outgoing president of the Long Island Rail Road ("LIRR"), Ken Bauer. According to Anemone, Dellaverson told Anemone and Casale that Bauer was a "bad guy" and that it was "surprising to him" that they had not come across any corruption involving Bauer. Id. at 103, 105. In one conversation, occurring in late 2002 or early 2003, Dellaverson mentioned a company called Plasser American ("Plasser"), which supplied special track maintenance railroad cars to the LIRR. At some point, "because Bauer had [also] been mentioned," Anemone understood Dellaverson to be "leading [Anemone and Casale] to Plasser," id. at 114, although he could not recall Dellaverson specifically attributing wrongdoing to Plasser or stating that there was any connection with Bauer. Dellaverson never asked for the information he provided to be kept confidential, although Anemone asserts that he and Casale understood this to be Dellaverson's desire.

Around the same time as the conversation in which Dellaverson allegedly suggested a relationship between Bauer and Plasser, in mid-January 2003, Anemone had a dispute with Lapp, his superior, regarding another investigation undertaken by Anemone and Casale into possible problems in the billing practices of John Wood, an outside attorney used by the MTA. Without Lapp's knowledge or approval, Casale had requested Wood's billing records. Lapp, angered by this request, told Anemone in response that "she would be the determining factor in any future investigations" by the JITF. She threatened "drastic action" if she was not able to "determine the avenues of investigation that would be pursued," id. at 46-47, and instructed Anemone to clear future investigative steps with her. Anemone, who was "insulted" by this conversation, prepared a letter of resignation but was ultimately talked out of submitting it by Dellaverson.

Meanwhile, as a result of his earlier conversation with Dellaverson, Anemone told Casale to "continue ... or begin nosing around" the Bauer-Plasser relationship. Id. at 149. This subsequent investigation led Casale to Joseph Trimarchi, Bauer's former driver, who had been subsequently assigned to Anemone's and Casale's task force. According to Anemone, Trimarchi told Casale that Plasser had "wined and dined" Bauer and that Trimarchi had driven Bauer to the airport for a flight to Austria for which Plasser paid and to the Waldorf-Astoria for another Plasser-related event. Casale formally commenced an investigation into the allegations regarding Bauer and Plasser on February 11, 2003. Anemone thereafter directed Casale to contact the Queens District Attorney's office ("Queens DA's...