Smith v. Cnty. of Suffolk
| Decision Date | 14 January 2015 |
| Docket Number | Docket No. 13–1230–cv. |
| Citation | 776 F.3d 114 |
| Parties | Raymond SMITH, Plaintiff–Appellant, v. COUNTY OF SUFFOLK, Richard Dormer, Individually and in his Official Capacity as Suffolk County Police Commissioner, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Steven A. Morelli, Law Office of Steven A. Morelli, P.C., Garden City, NY, for Plaintiff–Appellant Raymond Smith.
Rudolph M. Baptiste, Assistant County Attorney, for Dennis M. Brown, Suffolk County Attorney, County of Suffolk, Hauppauge, NY, for Defendants–Appellees County of Suffolk, Richard Dormer, individually and in his capacity as Suffolk County Police Commissioner.
Before (On Submission) HALL, LIVINGSTON, Circuit Judges, and BRODIE, District Judge.*
Plaintiff-appellant Raymond Smith (“Smith”) appeals the district court's grant of summary judgment and dismissal of his First Amendment employment retaliation case. The district court held that the record failed to demonstrate a causal connection between Smith's protected speech and the Suffolk County Police Department's (“Department”) adverse employment actions. On appeal, Smith argues (1) that the record contains evidence connecting Smith's protected speech to the adverse employment actions sufficient to give rise to genuine questions of material fact, and (2) that the defendants-appellees fail to proffer evidence warranting summary judgment on the basis that those adverse actions would have occurred absent Smith's protected speech. We conclude that because Smith is correct on both points, the district court erred in granting summary judgment. We therefore VACATE the district court's judgment and REMAND this case for further proceedings.
Smith worked for the Department from 1981 until his retirement in 2008. Smith rose to the rank of lieutenant, where his duties included supervising a squad of officers, planning community events, responding to complaints, coordinating with other squads and precincts, preparing computerized crime reports, and conducting motor patrols.
Smith was investigated, warned, or otherwise disciplined for misconduct related to the use of his Department-owned computer 1 on several occasions leading up to the incidents at issue. In 1997, after it was discovered that Smith had installed a modem on a computer without authorization, he was warned not to install, reconfigure, or tamper with Department programs or computers. In 2000, after investigating an incident of computer tampering that had prevented other users from accessing his computer, the Department reprimanded Smith for computer misuse. Smith was issued a written directive to read and familiarize himself with the Department's computer policy. The directive included the explicit policy statements that “Department computers are for official use only,” use of “any Department information or equipment for personal use or gain is strictly prohibited,” and “Internet access that is made available is for Department use only.” J.A. 327–28. Six years later, in 2006, it was discovered that Smith had used a computer to make flyers for a Fantasy Baseball League. Although the Department found this to be a minor indiscretion and did not take formal disciplinary action, it was recommended that Smith receive guidance regarding the use and misuse of Department equipment.
The events giving rise to the case now on appeal were set in motion on July 27, 2007, when Smith was required to appear and present certain documents at a New York State Department of Motor Vehicles hearing (“DMV hearing”) related to an arrest that he conducted. Smith failed to appear on time, and when the Department asked about his delay, Smith claimed that while preparing for the hearing, he was forced to search for and review his case notes on his computer because they were not in the usual file. The Department conducted a forensic examination of Smith's computer to verify his excuse.
The examination revealed that Smith “had repeatedly, and without authorization, communicated by email with a number of representatives of the information media, as well as others, about matters pertaining to Departmental business.” J.A. 60. This communication began in 2004 and continued throughout 2007, when Smith began corresponding with CNN commentator Jeffrey Toobin about the high-profile case in which Martin Tankleff was convicted for the murder of his parents, only to be exonerated in 2007 after serving seventeen years in prison. In a “tip” emailed to Toobin, Smith contended that the homicide detective may have helped plan the murder and orchestrated a cover-up, that the district attorney appeared to have an ethical conflict and was protecting the actual murderers, and that there was a history of documented abuses committed by the Suffolk County Police Homicide Squad. The examination also revealed that in May 2007 Smith exchanged emails with Newsday correspondent Christine Armario expressing concern that the Department's policy of arresting unlicensed drivers led to ethnic discrimination. In these instances and others, Smith signed his emails in his official capacity as “Lieutenant Raymond F. Smith, Sixth Precinct.”
On January 2, 2008, the Department transferred Smith to an administrative, non-supervisory position working in an office without a computer. The new position precluded him from earning overtime or night shift pay, and he suffered a ten percent pay cut because he was no longer permitted to work the more lucrative midnight shift.
Following negotiations with Smith's union representative, the Department served Smith with two disciplinary charges on January 31, 2008, both related to his emails to Armario. Charge Two was for conduct unbecoming an officer and alleged that Smith used his Departmental computer and email to “improperly communicate with the media ... regarding Department policy in a manner tending to bring discredit to the Police Department.” J.A. 537. The following day, Smith was suspended for thirty days without pay. On February 7, 2008, Smith was served with notice of thirty-two additional disciplinary charges for various violations of the Department's rules and procedures, including: missing the DMV hearing, expressing his personal opinion in a manner tending to discredit the Department, sending e-mails discrediting the Department, using Departmental email to conduct non-Departmental business, accessing non-work related websites, using profanity in his emails, and failing to refer media inquiries to the Department's Public Information Section. Upon returning to work in early March 2008, Smith was transferred to a different administrative position. He decided to retire voluntarily at the end of April 2008 rather than face further disciplinary proceedings.
In March 2010, Smith filed his complaint in this case alleging under 42 U.S.C. § 1983 that defendants Suffolk County and County Police Commissioner Richard Dormer (“defendants”) retaliated against him for exercising his First Amendment right to freedom of speech. Smith also brought a claim for violation of Article 1, Section 8 of the New York State Constitution. The alleged retaliatory acts included investigation into his personal affairs, serving him with disciplinary charges, reassigning him to a lower-paying administrative position, suspending him without pay, and eventually forcing his retirement.
To survive summary judgment on a First Amendment retaliation claim, a public employee must establish a prima facie case by “bring[ing] forth evidence showing that [1] he has engaged in protected First Amendment activity, [2] he suffered an adverse employment action, and [3] there was a causal connection between the protected activity and the adverse employment action.” Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007).
As relevant here, the First Amendment protects speech uttered by an employee in his or her capacity as a citizen regarding a matter of public concern. Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2378, 189 L.Ed.2d 312 (2014). To demonstrate a causal connection “a plaintiff must show that the protected speech was a substantial motivating factor in the adverse employment action.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.2006) (internal quotation marks omitted). A plaintiff may establish causation either directly through a showing of retaliatory animus, or indirectly through a showing that the protected activity was followed closely by the adverse action. Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir.2004) (internal citation omitted). Since a direct showing requires plaintiff to provide “tangible proof” of retaliatoryanimus, “conclusory assertions of retaliatory motive” are insufficient. Id.
Once 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 Supreme Court identified one such defense in Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). “Because protected speech could not substantially cause an adverse action if the employer would have taken that action in any event,” Nagle v. Marron, 663 F.3d 100, 111 (2d Cir.2011), once the employee has established a prima facie case, the employer may still be entitled to summary judgment based on the Mount Healthy defense by demonstrating “by a preponderance of the evidence that it would have taken the same adverse employment action ‘even in the absence of the protected conduct.’ ” Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999) (quoting Mount Healthy, 429 U.S. at 287, 97 S.Ct. 568), abrogated on other grounds by Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); see...
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