Montero v. City of N.Y.

• Decision Date: 16 May 2018
• Docket Number: August Term, 2017,Docket No. 17-76-cv
• Citation: 890 F.3d 386
• Parties: Raymond MONTERO, Plaintiff-Appellant, v. CITY OF YONKERS, NEW YORK, Keith Olson, in his official and individual capacities, Brian Moran, in his official and individual capacities, John Mueller, in his official and individual capacities, Defendants-Appellees, Police Association of the City of Yonkers, Inc., AKA Yonkers Police Benevolent Association, Edmund Hartnett, in his official and individual capacities, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

890 F.3d 386

Raymond MONTERO, Plaintiff-Appellant,

v. CITY OF YONKERS, NEW YORK, Keith Olson, in his official and individual capacities, Brian Moran, in his official and individual capacities, John Mueller, in his official and individual capacities, Defendants-Appellees,Police Association of the City of Yonkers, Inc., AKA Yonkers Police Benevolent Association, Edmund Hartnett, in his official and individual capacities, Defendants.

Docket No. 17-76-cv

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: September 08, 2017

Decided: May 16, 2018

CHRISTOPHER D. WATKINS, Sussman & Associates, Goshen, New York, for Plaintiff-Appellant.

ELIZA M. SCHEIBEL (Lalit K. Loomba, on the brief ), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, New York, for Defendants-Appellees City of Yonkers, New York, Brian Moran, and John Mueller.

ANDREW C. QUINN, The Quinn Law Firm, PLLC, White Plains, New York, for Defendant-Appellee Keith Olson.

Before: Katzmann, Chief Judge, Sack and Hall, Circuit Judges.

Sack, Circuit Judge:

Plaintiff-Appellant Raymond Montero, a Yonkers, New York police officer and former union official in the Police Association of the City of Yonkers, Inc., also known as the Yonkers Police Benevolent Association (the "Yonkers PBA"), appeals from an order of the United States District Court for the Southern District of New York (Kenneth M. Karas, Judge ) dismissing pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure his First Amendment employment retaliation claim against Defendants-Appellees the City of Yonkers, Keith Olson, Brian Moran, and John Mueller (the "City defendants"). Montero alleges that the City defendants violated his First Amendment right to freedom of speech by retaliating against him for criticizing management decisions by Yonkers police officials at two Yonkers PBA meetings. The district court held that because the speech at issue was not made in Montero's capacity as a private citizen, his union remarks were not protected by the First Amendment and he could therefore not state a claim for retaliation against the City defendants.

We conclude that because Montero's union remarks were not " ‘part-and-parcel of his concerns’ about his ability to ‘properly execute’ " his official job duties, Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir.) (quoting Williams v. Dallas Indep. Sch. Dist. , 480 F.3d 689, 694 (5th Cir. 2007) ), cert. denied , 562 U.S. 995, 131 S.Ct. 444, 178 L.Ed.2d 344 (2010), he spoke as a private citizen for purposes of his First Amendment right to free speech. We also conclude, however, that defendants Moran and Mueller are entitled to qualified immunity, and that Montero has not alleged a plausible claim for municipal liability against the City of Yonkers. Accordingly, we affirm the district court's dismissal of the plaintiff's First Amendment retaliation claim against defendants Moran, Mueller, and the City of Yonkers, vacate the district court's dismissal of the plaintiff's First Amendment retaliation claim against defendant Keith Olson, and remand the case for further proceedings.

BACKGROUND

As required in our review of a dismissal under Federal Rule of Civil Procedure 12(b)(6), "[w]e ... accept[ ] all factual allegations as true and draw[ ] all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2279, 198 L.Ed.2d 703 (2017).

Montero's Union Remarks

Montero has been a police officer in the City of Yonkers Police Department (the "YPD") for more than twenty-seven years. In January 2010, the Yonkers PBA, which serves as the official union for the YPD, held elections. Montero was elected vice president. Defendant Olson, a fellow Yonkers police officer, was elected president.

Montero testified that Olson had opposed Montero's candidacy, favoring another police officer, Michael Farina, for vice president instead. Following the election, tensions between Montero and Olson increased dramatically. In June 2010, during a Yonkers PBA meeting, Montero criticized Olson's close relationship with then Police Commissioner Edmund Hartnett. He said that Hartnett's decision to discontinue several police units—those "dedicated to investigating domestic violence and burglary" and the "community unit dedicated to supporting the Police Athletic League"—would adversely affect the YPD, the Yonkers PBA, and the surrounding community. Am. Compl. ¶¶ 15-17. Montero alleges that shortly thereafter, Mueller, then a lieutenant and at the time of the filing of the complaint, the acting Police Chief of the YPD, pulled him into his office, and told Montero to stop criticizing the YPD and Police Commissioner Hartnett, or Montero would be transferred to another division. Despite Mueller's warning, at a Yonkers PBA meeting in February 2011,¹ Montero called for a no-confidence vote with respect to Hartnett.

The Alleged Retaliation Against Montero

Based on his comments at the June 2010 and February 2011 union meetings (the "union speech" or "union remarks"), Montero alleges that Olson, acting with Olson's close associates Mueller and Detective Sergeant Moran, engaged in a campaign of retaliation against him.² The district court discussed Olson, Moran, and Mueller's actions in some detail. Montero v. City of Yonkers, 224 F.Supp.3d 257, 260-63 (S.D.N.Y. 2016). We rehearse those allegations only insofar as we think them relevant to this appeal.

In March 2011, a month after Montero's call for a no-confidence vote with respect to Police Commissioner Hartnett, Montero alleges, Olson, Mueller, and Moran conducted an unauthorized investigation focused on Montero's use of overtime slips. Because of this investigation, Montero asserts that the YPD wrongly denied him forty hours of compensatory pay and issued a disciplinary write-up of him. The next month, Montero alleges he was transferred from the Special Investigations Unit, which Montero describes as "highly desirable," to the (less desirable) Detective Division. Am. Compl. ¶ 27. While in the Detective Division, Montero was apparently assigned to desk duty, and became ineligible for overtime pay. According to Montero, a month later, Olson admitted to him that this transfer was directed by Moran and at Mueller's instruction, and was effected because of Montero's criticisms of Olson's leadership of the Yonkers PBA at the June 2010 union meeting and Hartnett's leadership of the YPD at the June 2010 and the February 2011 union meetings.

In September 2011, Montero alleges, Mueller conducted a second unauthorized investigation of Montero, this time for insubordination. That same month, Olson, after learning that Montero was planning to run against him for the Yonkers PBA presidency, allegedly confronted Montero, calling him a "fucking pussy" and threatening to "kick his ass" for refusing to debate him. Am. Compl. ¶ 29. Montero asserts that his office was vandalized shortly thereafter, with pictures of "The Cowardly Lion" posted throughout it. Although Montero alleges that he reported Olson's threats and the vandalism of his office to the YPD's Internal Affairs Department, the department apparently took no action in response to these reports.

In January 2012, Montero further alleges, Olson, Mueller, and Moran conducted a third unauthorized investigation of Montero, this time seeking to prove that Montero had been outside of his home while on sick leave. Although Montero contends that he had permission to leave his residence during this period, the YPD nevertheless docked him two days' salary.

In August 2012, Montero alleges, Olson told Montero's commanding officer, Detective Sergeant Michael Kivel, among other things, that "[Montero] better be fucking careful." Am. Compl. ¶ 43. These remarks apparently followed Montero's refusal to acknowledge Olson and Moran's presence while visiting a fellow officer receiving medical treatment in a hospital. Although Montero states that Kivel reported Olson's comments to Internal Affairs, the department apparently, once again, undertook no investigation.

In October 2013, Montero asserts, Olson sent a text message to Montero telling him that he wanted Montero to meet him "in another jurisdiction and preferably off duty," which the plaintiff understood to be a threat of violence. Am. Compl. ¶ 50. Also in September, Montero asserts, Olson "compelled" Internal Affairs to investigate Montero for his alleged communications with a reporter from the Yonkers Tribune , following an online article criticizing Olson's leadership of the Yonkers PBA. Am. Compl. ¶ 52. When Montero refused to tell Internal Affairs whether he was the source of the article, the YPD—allegedly at Olson's behest—threatened Montero with termination.

In January 2014, at a Yonkers PBA meeting, Olson formally called for Montero's expulsion from the union. When Montero attempted to leave the meeting, he was allegedly blocked from exiting by one of Olson's allies. According to Montero, at Olson's behest, police officers then seized videotapes of the meeting. Montero once more reported Olson's actions to Internal Affairs, but the department again allegedly refrained from confronting or disciplining Olson.

In February 2014, Montero asserts, Mueller urged Police Chief William Cave to remove Montero as the YPD's representative at county-wide intelligence meetings. After Cave agreed, Montero contends, he lost an additional twenty-four hours of pay per month. Later that year, Montero alleges, Olson started a petition about him containing false statements, after which Montero was formally expelled from the Yonkers PBA.

Finally, in July 2014, Montero alleges, his office was broken into and his shield stolen. Shortly thereafter, Moran returned Montero's shield, and wrote a report that he had received it from another person who had found it discarded on the street. Montero thinks Moran stole his shield with the intention that Montero...