Wrobel v. Cnty. of Erie

Citation34 IER Cases 220,692 F.3d 22
Decision Date01 August 2012
Docket NumberDocket No. 10–5179–CV.
PartiesTimothy 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

OPINION TEXT STARTS HERE

Christen Archer Pierrot, Chiacchia & Fleming, LLP, Hamburg, NY (Andrew P. Fleming, on brief), for Appellant.

David Sleight, Erie County Department of Law, Buffalo NY, for Appellees County of Erie and Daniel Rider.

Robert Louis Boreanaz, Lipsitz Green Scime Cambria LLP, Buffalo, NY, for Appellee Douglas Naylon.

Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.

Judge CALABRESI dissents in a separate opinion.

DENNIS JACOBS, Chief Judge:

Timothy Wrobel appeals from a judgment entered in the United States District Court for the Western District of New York (Curtin, J.), dismissing on summary judgment his First Amendment claims brought under 42 U.S.C. § 1983 against his former employer, Erie County, and certain employees. Because Wrobel failed to adduce evidence that his mistreatment was caused by political association or by speech about matters of public concern, we affirm.

Wrobel was a longtime employee of Erie County's highway division. In 1999, a newly elected Republican county executive appointed the defendants as Wrobel's direct and indirect supervisors. Over the next eighteen months Wrobel's run-ins with them resulted in harassment of him and his transfer to a faraway workplace. His direct supervisor, defendant Douglas 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 alleges retaliation in violation of his First Amendment rights to free association and free speech. The thrust of the complaint is that Wrobel suffered discrimination because he was apolitical, and not politically aligned with the “new regime.” Because we conclude that no reasonable jury could find that Wrobel's mistreatment was caused by any political activity-or inactivity—we affirm the district court's grant of summary judgment in favor of defendants.

BACKGROUND

Timothy Wrobel worked as a blacksmith at a highway maintenance facility of the Erie County highway department called the Aurora barn. In 1999, Republican Joel Giambra succeeded Democrat Dennis Gorski as Erie County Executive. The new administration hired defendant Naylon as the senior highway maintenance engineer at the Aurora barn, in charge of day-to-day activities, including direct oversight of Wrobel and the other employees; defendant Rider was hired to run the entire highway department.

The record on summary judgment is extensive, but the salient facts can be summarized. Immediately after the defendants were hired by the county, Wrobel and his coworkers clashed with them. In January 2001, Wrobel confronted Naylon about what he perceived to be rudeness and disrespect. Naylon responded that the trouble with the Aurora barn was Wrobel and other workers from what Naylon labeled the “old regime,” and suggested that Wrobel should transfer to another facility.

A few months later, Wrobel received written notice to appear for a disciplinary hearing on six charges: insubordination stemming from the January confrontation, falsifying his daily reports, leaving the job-site without permission, lateness, excessive breaks, and personal use of his work phone. The upshot of the disciplinary hearing was that Rider transferred Wrobel to another maintenance facility, the Tonawanda plant. The transfer greatly lengthened Wrobel's commute, and the stress of this ordeal caused him to miss work for several weeks.

Although Wrobel admitted to some of the misconduct, he grieved the discipline on the ground that it was actually punishment for his friendship with Naylon's predecessor (and that Naylon's work expectations were unrealistic). An arbitrator ruled for the county, finding that [t]he grievant seemed determined to function as an independent contractor,” and that Wrobel justified his occasional tardiness because “no one ever complained to him about it.” (J.A. 272–73.)

Soon after Wrobel's transfer, his wife joined with some of his former colleagues to expose Naylon and Rider's mistreatment of county workers, as well as other improper behavior they believed to be taking place in the highway department, such as misusing public funds and operating county equipment while intoxicated. In May 2001, the group sent letters about the Aurora barn—signed only by “Concerned Erie County Employees”—to the state Democratic chairman and the New York State attorney general complaining about the state of affairs at the Aurora barn. (Wrobel's wife also followed Naylon with a camera to catch him misusing county equipment.) In August 2001, Wrobel and others met with an FBI agent to float similar allegations about Naylon.

Wrobel alleges that Naylon and Rider punished him for speaking out against them. Specifically, Naylon harassed him, told him to tell his wife to stay away from all County buildings, and accused him of being in contact with a former Aurora barn employee. Shortly after his transfer to the Tonawanda plant, an Erie County sheriff questioned Wrobel about a theft of wood from the Aurora barn, and Wrobel alleges that the defendants inspired the inquiry.

During his tenure at the highway department, Naylon was overt in his dislike for those who had preceded him in the Aurora barn and his desire to purge the facility's hold-overs. Early on, Naylon asked Wrobel, as a 22–year veteran of the highway department, to advise as to who were the “good guys” and “bad guys,” who were the employees that “do their jobs” and who are the “goof offs.” Wrobel demurred and told Naylon that he would soon figure it out himself. A few months later, Naylon ordered Wrobel to tell a retired employee, Gary Kane, to stop coming by the Aurora barn. Naylon told Wrobel that “it doesn't look good for me and Joel Giambra and the new administration. He's retired from the Gorski administration, tell him to be on his merry way and enjoy himself.” (J.A. 696.) Naylon referred to Kane as part of an “old regime.”

Two former employees of the Aurora barn similarly suffered under Naylon's management. Anthony Marchitte was transferred from the Aurora barn to the Angola barn against his will, after being told the transfer was “in his best interests.” Naylon gloated “the fat cat has just begun to sing ... all you guys are going to be gone ... things are really going to change around here.” (J.A. 1003.) Wrobel's friend Timothy Elliott was also transferred from the Aurora barn in early 2001. Before his transfer, Naylon called him into his office and told him that “everything has to go through us,” “that was the old regime, this is the new regime,” and “if you're not with us, you're against us.” (J.A. 1008.)

Other employees provided similar accounts. Paul Rebrovich was asked by Naylon if he was appointed by Gorski, and whether he was backed by the Gorski administration or the current administration. Rebrovich told him that nobody in his position was appointed by an administrationand that he had never been politically active. Naylon also boasted to him that, eventually, we're going to get our own people in here” and “get rid of this old regime.” (J.A. 946–47.)

Wrobel's deposition recounts a single instance in which political affiliation was discussed. On Naylon's first day on the job, he asked Wrobel about his political affiliation, and Wrobel told him that he was a Republican (as was Naylon). Elliott likewise reported a single instance: before his transfer out of Aurora, Naylon said to him we know you guys are all democrats, hired by the other administration.”

Wrobel's complaint alleged (relevant to this appeal) that defendants violated his (1) First Amendment right to freedom of association by harassing him because of his political association with the previous county administration and (2) First Amendment right to freedom of speech by retaliating against him for speaking about matters of public concern taking place within the Erie County highway department. An earlier panel of this Court found that both claims were adequately pleaded. See Wrobel v. Cnty. of Erie, 211 Fed.Appx. 71, 72–73 (2d Cir.2007). After discovery closed, defendants successfully moved for summary judgment on the ground that Wrobel had adduced insufficient evidence to raise a question of fact on either claim.

DISCUSSION

We review de novo a grant of summary judgment, viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011). Summary judgment is only appropriate when the evidence is “so one-sided that one party must prevail as a matter of law.” Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir.1996) (internal quotation marks omitted).

I

“Public employees do not surrender their First Amendment rights to comment on matters of public interest by virtue of their acceptance of government employment.” Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir.2004) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). The First Amendment right extends to associational conduct, including the decision not to support or affiliate with a political party or faction. Id. at 102. [C]onditioning public employment on the provision of support for the favored political party unquestionably inhibits protected belief and association.” Rutan v. Republican Party of Illinois, 497 U.S. 62, 69, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (internal quotation marks...

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