U N I T E D STATES COURT OF APPEALS

F O R THE SECOND CIRCUIT

A u g u s t Term, 2004

(Argued: July 14, 2005 D e c i d e d : August 9, 2006)

D o c k e t No. 04-4627-cv

J O S E COTARELO,

P l a i n t i f f - Ap p e l l a n t ,

v. V I L L A G E OF SLEEPY HOLLOW POLICE DEPARTMENT, JIMMY WARREN, JR.,

P H I L L I P ZEGARELLI, MARIO DEFELICE, Village Trustee, ROBERT HIGLE,

R I C H A R D ZIEJACK, PATRICIA RODRIGUEZ, DANIEL STEVER, JAMES HART,

D W I G H T DOUGLAS, Village Administrator, all sued in their

i n d i v i d u a l capacities,

D e f e n d a n t s -A p p e l l e e s .

B e f o r e: WINTER, JACOBS, Circuit Judges, and GLEESON,*

D i s t r i c t Judge.

A p p e a l from an order granting summary judgment in the

S o u t h e r n District of New York (George A. Yanthis, Magistrate

J u d g e

p o l i t i c a l affiliation claims. We affirm.

C H R I S T O P H E R D. WATKINS

( S t e p h e n Bergstein on the brief),

T h o r n t o n , Bergstein & Ullrich LLP,

C h e s t e r , New York, for Plaintiff-

A p p e l l a n t.

*The Hon. John Gleeson, U.S. District Judge for the Eastern

D i s t r i c t of New York, sitting by designation.

J A M E S P. CLARK (Terence M. O'Neil, H o w a r d M. Miller on the brief), B o n d , Schoeneck & King, PLLC, G a r d e n City, New York, for D e f e n d a n t s -A p p e l l e e s .

W I N T E R , Circuit Judge: J o s e Cotarelo appeals Judge Yanthis' grant of summary j u d g m e n t and the resultant dismissal of his First Amendment claim b a s e d on an alleged employment retaliation for his protected a c t i v i t y and political affiliation. We affirm. Appellees d e m o n s t r a t ed as a matter of law that the same adverse employment a c t i o n would have been taken even in the absence of appellant's p r o t e c t e d speech and political affiliation.

BACKGROUND V i e w i n g the record in the light most favorable to appellant, t h e factual background is as follows. Appellant has been a p o l i c e officer with the Sleepy Hollow Police Department since 1986. After he was caught hunting on a preserve while on duty in D e c e m b e r 1991, he paid a fine and was disciplined by the Police D e p a r t m e n t , agreeing to work for ten days without pay.

I n December 1998, Cotarelo and another officer, Detective F r a n k Corona, wrote a letter to the Police Chief, Jimmy Warren, J r . , detailing their concern "about the growing trend in the [ P o l i c e Department] regarding bigotry and discrimination directed t o w a r d s the Spanish-speaking police officers." The letter listed t h e following as examples: (i) a statement by police officer J a m e s Reddy at a departmental meeting that he and most of the o t h e r officers "resent the Spanish-speaking officers speaking S p a n i s h in headquarters," (ii) other officers' refusal to buzz t h e plaintiff into headquarters, (iii) retired officer Manny C a x i e i r o telling Detective Corona that he should not speak S p a n i s h and using an ethnic slur for Ecuadorians, (iv) Officer R e d d y ' s threat to tell the Chief that another officer was s p e a k i n g Spanish on the telephone, and (v) the discrimination i n h e r e n t in using the officers' Spanish fluency for some purposes w h i l e forbidding them to speak Spanish in front of officers who w e r e n ' t Spanish-speaking. Officer Cotarelo and Detective Corona a s k e d the Chief to address these issues.

I n March 1999, Cotarelo filed a federal lawsuit alleging t h a t the work environment at the Police Department was hostile to H i s p a n i c s and that the hostile environment worsened after he v o i c e d his opposition to it. In March 2001, the case settled w i t h o u t the defendants admitting any liability.

A p p e l l a n t testified in his deposition that, after he brought t h e lawsuit, he deliberately decreased the frequency at which he i s s u e d tickets and summonses.1 This led to a decrease in his B E T A score, a method of evaluating a patrol officer's p r o d u c t i v i ty . Appellant also testified that ticket and summonses i s s u a n c e is a valid evaluator.

A f t e r several failures, Cotarelo passed the Civil Service t e s t for promotion to sergeant in 2001 and was put on the list of c a n d i d a t e s for promotion for the first time. Later that year, O f f i c e r s Paul Hood, Robert Nevelus, and Cotarelo were interviewed b y the Police Committee of the Village Board for promotion to sergeant. Three members of the Village Board of Trustees made up t h e Police Committee, which was to interview candidates for p r o m o t i o n and recommend one to the Mayor. The recommended c a n d i d a t e ' s name was then to be submitted by the Mayor for a vote o f the full Village Board of Trustees.

T h e Police Chief submitted evaluations of all the candidates t o the Police Committee, recommending both Hood and Cotarelo, but r a n k i n g Hood first. He did not recommend Nevelus for promotion.

A l l three candidates were interviewed by the Village A d m i n i s t r a to r , Dwight Douglas, and the Police Committee, with C h i e f Warren and a police lieutenant present. After reviewing t h e applications and completing the interviews, the Police C o m m i t t e e unanimously recommended Officer Hood for promotion to sergeant. Mayor Zegarelli submitted Officer Hood's name for a v o t e of the Board of Trustees, which then approved the promotion.

A l t h o u g h other officers were promoted to detective rank, one i n 2001 and one in 2003, Cotarelo was not considered for those p r o m o t i o n s by the Chief. Chief Warren had met with Cotarelo in 2 0 0 2 , shortly after the Hood promotion, and advised Cotarelo to i m p r o v e his BETA scores in order to be considered for future promotions. In the previous two years, Cotarelo had BETA scores t h a t were next to last among the patrol officers. As noted a b o v e , appellant conceded that these low scores were the result o f his deliberate inactivity. In 2002, after the advice from C h i e f Warren, Cotarelo's BETA score ranked last out of the f i f t e e n patrol officers. Moreover, Cotarelo had heard a ( m i s t a k e n ) rumor that Chief Warren had not recommended Cotarelo f o r promotion to sergeant and, as a result, had ceased to speak t o Chief Warren except when professionally necessary.2 Chief W a r r e n pointed to this behavior as the reason for not considering C o t a r e l o for promotion to detective.

C o t a r e l o had supported the political campaigns of two of M a y o r Zegarelli's past opponents: Janet Gandolfo and Sean T r e a c e y , both Democrats. Mayor Zegarelli, a Republican, had told C h i e f Warren he had seen what he thought was Cotarelo's patrol c a r parked outside of Ms. Gandolfo's home while Cotarelo was on d u t y , but Cotarelo denied that it was his car. In noting C o t a r e l o ' s affiliation with the Democratic Party, the Mayor also l e f t Chief Warren with the impression that he preferred not to p r o m o t e a Democrat.

I n May 2002, Cotarelo filed the present action, alleging t h a t he was not promoted to sergeant by the defendants in N o v e m b e r 2001 because of his national origin, his letter to Chief W a r r e n in 1998, and his 1999 lawsuit. He amended the complaint i n January 2003 to include an allegation that he was not promoted t o detective because of the letter, his past lawsuit, and the i n s t a n t lawsuit, and again in November 2003 to allege that he was n o t promoted because he was associated with the Democratic Party.

I n August 2004, the district court granted the defendants' motion f o r summary judgment on all of Cotarelo's claims. Cotarelo a p p e a l s only from the grant of summary judgment on his First A m e n d m e n t claim.

DISCUSSION A. Standard of Review W e review a district court's grant of summary judgment de n o v o , viewing the evidence in the light most favorable to the n o n - m o v i n g party. Phaneuf v. Fraikin, 448 F.3d 591, 595 (2d Cir. 2006). Summary judgment is only appropriate when there are no g e n u i n e material issues of fact and the moving party is entitled t o judgment as a matter of law. Celotex Corp. v. Catrett, 477 U . S . 317, 322-23 (1986).

B. First Amendment Retaliation Claim T o survive a motion for summary judgment on a First A m e n d m e n t retaliation claim, the plaintiff must present evidence w h i c h shows "'[1] that the speech at issue was protected, [2] t h a t he suffered an adverse employment action, and [3] that there w a s a causal connection between the protected speech and the a d v e r s e employment action.'" Diesel v. Town of Lewisboro, 232 F . 3 d 92, 107 (2d Cir. 2000) (alterations in original) (quoting B l u m v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994)). Further, " t h e causal connection must be sufficient to warrant the i n f e r e n c e that the protected speech was a substantial motivating f a c t o r in the adverse employment action." Blum, 18 F.3d at 1010.

E v e n if the plaintiff demonstrates these factors, the defendant c a n still prevail on a motion for summary judgment if it can show t h a t it would have taken the same adverse employment action " ' e v e n in the absence of the protected conduct.'" Id. (quoting M o u n t Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

2 7 4 , 287 (1977)).

A government employee must show that his speech was on a m a t t e r of public concern in order for that speech to be protected u n d e r the First Amendment. Frank v. Relin, 1 F.3d 1317, 1328 (2d C i r . 1993). Generally, speech on "any matter of political, s o c i a l , or other concern to the community is protected by the F i r s t Amendment." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1 9 9 9 ) (finding that comments of police officers on crime rates, p o l i c e staffing, equipment shortages and budgetary matters were o f public concern) (quotation marks and citation omitted).

A l t h o u g h the district court found Cotarelo's letter and his two l a w s u i t s involved "personal grievances relating to plaintiff's o w n employment interests" rather than matters of public concern, [ S A 8] we have repeatedly held that discrimination in a g o v e r n m e n t workplace is a matter of public concern. Konits v. V a l l e y Stream Cent. High Sch. Dist., 394 F.3d 121, 125 (2d Cir. 2 0 0 5 ) ( c i t i ng Feingold v. New York, 366 F.3d 138, 160 (2d Cir. 2 0 0 4 ) , and Mandell v. County of Suffolk, 316 F.3d 368, 383 (2d C i r . 2003). Both the letter and the complaints in the lawsuits c o n c e r n discrimination problems generally and were not limited to i n s t a n c e s affecting only Cotarelo. Compare Ezekwo v. New York C i t y Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991) ( h o l d i n g that a physician's complaints were not a matter of p u b l i c concern and thus not protected by the First Amendment w h e r e her primary aim was to protect her own reputation, not the p u b l i c welfare). Cotarelo's letter and lawsuits were therefore p r o t e c t e d activity.

N e x t , the plaintiff must show that he suffered an adverse e m p l o y m e n t action taken because of his or her protected speech.

D i e s e l , 232 F.3d at 107. A failure to promote a qualified c a n d i d a t e may be such an adverse action. Treglia v. Town of M a n l i u s, 313 F.3d 713, 720 (2d Cir. 2002). Cotarelo contends t h a t he was not promoted to sergeant or to detective because of h i s letter and lawsuits. He relies upon four circumstances as p r o o f that he was not promoted as a result of his statements: ( i ) in 2001, Corona was not rehired as a sergeant after quitting b e c a u s e Mayor Zegarelli said "there were issues"; (ii) a c o n s u l t a n t hired to evaluate the Police Department's human r e s o u r c e s practices found there was a "strong sentiment that f a v o r e d officers (i.e., those with personal connections to the C h i e f or the Mayor or other members of Village government) are e s s e n t i a l l y impervious to disciplinary requirements or p r o c e s s e s " ; (iii) in 2002, Mayor Zegarelli asked Chief Warren why h e was talking to a person who had a legal action against the V i l l a g e at that time; and (iv) Chief Warren mentioned appellant's f i r s t lawsuit during appellant's interview with the Police Committee.

N o n e of the first three events related specifically to Cotarelo. The "issues" regarding Corona are entirely obscure and m a y have involved any number of events irrelevant to the present a c t i o n s ; the importance of "personal connections" is neither u n u s u a l nor necessarily evidence of political influence and was f o u n d to be a "sentiment" rather than a fact; and the lawsuit r e m a r k was not a reference to Cotarelo. As to Chief Warren's m e n t i o n of the lawsuit during appellant's interview, appellant h i m s e l f testified that it was in connection with the drop in his p r o d u c t i v i ty . See Footnote 1, supra.

E v e n if the evidence above were deemed sufficient to allow a t r i e r of fact to find that Cotarelo's speech was a factor in the d e n i a l of his promotion, appellees may still prevail on a motion f o r summary judgment if they can demonstrate as a matter of law t h a t they would have taken the same adverse employment action if t h e protected speech had not occurred. Blum, 18 F.3d at 1010.

C o t a r e l o cannot dispute that his record in the Department r e n d e r e d him an unlikely candidate for promotion to sergeant. He h a d been fined by the state and required to work for ten days w i t h o u t pay when he was caught hunting while on duty in 1991, as s o m e of the Village Trustees remembered when he was up for p r o m o t i o n in 2001. His productivity scores placed him sixteenth o u t of seventeen patrol officers in 2000 and twelfth out of t h i r t e e n in 2001. He conceded in his testimony, moreover, that t h e low productivity was deliberate. See Footnote 1, supra. His o n l y attempt to show that he was as qualified as, or better than, H o o d is an assertion in his brief that Hood's BETA scores in 2001 w e r e lower than Cotarelo's, not mentioning that Hood's scores w e r e compiled for only 2 months as a patrol officer while C o t a r e l o ' s were for 12 months.

W h e n Cotarelo was turned down for promotion to sergeant, e a c h trustee articulated legitimate reasons for choosing Officer H o o d over Cotarelo, namely that the other was more highly ranked b y the Chief, that Officer Hood interviewed better and had better s c o r e s , and so on.

L a t e r promotions of other officers to Detective, without c o n s i d e r i n g Cotarelo, occurred after Cotarelo's productivity had d e c l i n e d even further, a change to which he was largely i n d i f f e r e n t, and after he refused to speak to Chief Warren except w h e n professionally necessary because of a mistaken rumor. See F o o t n o t e 2, supra. Appellant's performance record is enough to d e m o n s t r a t e that he would not have been promoted even in the a b s e n c e of the letter and lawsuits.

C. First Amendment Political Affiliation Claim T a k i n g adverse employment action against a non-policymaking e m p l o y e e for political reasons is a violation of that employee's F i r s t Amendment rights. See Vezzetti v. Pellegrini, 22 F.3d 483, 4 8 6 - 8 7 (2d Cir. 1994) (involving a dismissal, not a failure to p r o m o t e an employee). The plaintiff must prove "(1) that he or s h e engaged in constitutionally protected conduct, and (2) that s u c h conduct was a substantial or motivating factor leading to" t h e adverse action. Id. at 487. Political party affiliation is p r o t e c t e d by the First Amendment. Camacho v. Brandon, 317 F.3d 1 5 3 , 161 (2d Cir. 2003). To prevail on a motion for summary j u d g m e n t on this issue, the defendants must show by a p r e p o n d e r a nc e of the evidence that Cotarelo would not have been p r o m o t e d even in the absence of the protected conduct. Vezzetti, 2 2 F.3d at 487.

C o t a r e l o argues, and we agree, that the evidence would allow t h e jury to infer that Mayor Zegarelli would favor his political s u p p o r t e r s in promotions. However, Cotarelo has offered scant e v i d e n c e that Mayor Zegarelli either made, or influenced, any e m p l o y m e n t decisions about Cotarelo for political reasons.

A l t h o u g h the Mayor did have a conversation with Chief Warren in w h i c h he mentioned Cotarelo's support of his Democratic rivals, t h e record as a whole does not show that Chief Warren was a n y t h i n g but sympathetic toward Cotarelo's aspirations. In fact, C h i e f Warren recommended him for promotion to sergeant, sought to a d v i s e Cotarelo to improve his productivity so that he could be p r o m o t e d in the future, and met with the Mayor to discuss ways C o t a r e l o might be promoted. It is undisputed that the Police C o m m i t t e e did not discuss Cotarelo's political leanings while c o n s i d e r i n g promoting him to sergeant.

W e need not determine whether this evidence was sufficient, however. As discussed above, Cotarelo would not have been p r o m o t e d anyway because of his deliberately low productivity s c o r e s , his disciplinary record, and his refusal to speak to W a r r e n save where professionally necessary. Under the standard a r t i c u l a t e d in Vezzetti, the defendants have demonstrated as a m a t t e r of law that Cotarelo would not have been promoted r e g a r d l e s s of his political affiliation. Vezzetti, 22 F.3d at 487.

CONCLUSION T h e r e f o r e , we affirm the district court's grant of summary j u d g m e n t to the defendants.

FOOTNOTES 1. Cotarelo testified at his deposition that, following his 1999 l a w s u i t , he "slowed it down a lot," meaning that he didn't write a s many tickets, because he "didn't want to start any trouble" by w r i t i n g tickets, which would force other officers to back him up, a d d i n g to their work. Cotarelo believed that he was able to get " b a c k in [the other officers'] good graces because [he] didn't w r i t e that many tickets." 2. At his deposition, Cotarelo testified that he "stopped talking t o Warren" because he believed that "Warren recommended Hood and n o t both of us" for promotion to sergeant. Cotarelo did, h o w e v e r , continue to communicate with Chief Warren " p r o f e s s i o na l l y and respectfully . . . regarding any police matters."