12-3815-cv
Puglisi v. Town of Hempstead


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 18th day of October, two thousand thirteen.

PRESENT: REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 JOHN F. KEENAN,
                                 District Judge.*
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JOHN PUGLISI,
                                 Plaintiff-Appellant,

                               v.                                        No. 12-3815-cv

TOWN OF HEMPSTEAD, DEPARTMENT OF
SANITATION, SANITARY DISTRICT NO. 2,
SANITARY DISTRICT NO. 2 BOARD OF
COMMISSIONERS, GERARD W. BROWN, JOHN
COOLS, DENNIS J. MEEKINS, BRIAN F. O’CONNOR,
LEROY W. ROBERTS, ROBERT NOBLE, MICHAEL
McDERMOTT,
                                 Defendants-Appellees.
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* The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
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APPEARING FOR APPELLANT:                  STEPHEN BERGSTEIN, Bergstein & Ullrich,
                                          LLP, Chester, New York.

APPEARING FOR APPELLEES:                  CARA O’SULLIVAN, Kaufman, Borgeest
                                          & Ryan LLP, New York, New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Joanna Seybert, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 20, 2012, is AFFIRMED.

       Plaintiff John Puglisi appeals from an award of summary judgment to defendants,

the Town of Hempstead Department of Sanitation’s Sanitary District No. 2 (the “District”),

the District’s Board of Commissioners (the “Board”), and various named individuals, on

Title VII, First Amendment, and state law claims of retaliation following Puglisi’s

protected activities related to the race discrimination claim of a fellow employee. See 42

U.S.C. §§ 1983, 2000e-3(a); N.Y. Exec. Law § 296(1)(e). We review an award of

summary judgment de novo, resolving all ambiguities and drawing all inferences in favor

of the non-movant, and we will affirm only if the record reveals no genuine dispute of

material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247–48 (1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011). We assume the

parties’ familiarity with the underlying facts and the record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.




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1.        Title VII and State Retaliation Claims

          Puglisi contends that, in awarding defendants summary judgment on his claims of

retaliatory demotion under Title VII and N.Y. Exec. Law § 296(1)(e),1 the district court

erred at the first and third steps of the familiar McDonnell Douglas burden-shifting

framework, which governs retaliation claims. See Desardouin v. City of Rochester, 708

F.3d 102, 106 (2d Cir. 2013). Even assuming arguendo that Puglisi can establish a prima

facie case of discrimination, we conclude, as the district court did, that he fails to carry his

burden at the third step of the analysis.

          Puglisi maintains that comments made by defendants Roberts and Meekins,

arguable policymakers for the District—that Puglisi had thrown the District “under the

bus” in testifying at an employee’s race discrimination hearing and had to “go,” Puglisi

Aff. ¶¶ 9, 11, J.A. 133—evidenced both direct discrimination and pretext. Although the

remarks were made over five months before Puglisi was demoted, when we draw all

reasonable inferences in Puglisi’s favor, we conclude that to the extent the remarks

expressly contemplate terminating Puglisi for his participation in a State Department of

Human Rights (“SDHR”) hearing, they bear some weight in demonstrating discriminatory

intent.

          But Puglisi’s burden requires him to show more than the possibility of retaliatory

animus; he was required to adduce sufficient evidence to permit a reasonable jury to find

1
  Because retaliation claims under N.Y. Exec. Law § 296(1)(e) are analyzed under the
same standard as Title VII retaliation claims, we review them together.

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that “but for” defendants’ retaliatory bias, he would not have been terminated. See

University of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) (“Title VII

retaliation claims require proof that the desire to retaliate was the but-for cause of the

challenged employment action.”). Insofar as Puglisi suggests that Gorzynski v. JetBlue

Airways Corp., 596 F.3d 93 (2d Cir. 2010), establishes a less-demanding standard, he is

mistaken. In applying McDonnell Douglas, Gorzynski concluded that plaintiff carried her

burden even under the more demanding standard of “but for” causation. See id. at 106.

Thus, we conclude that Puglisi bears the but-for causation burden pronounced in Nassar,

and that comments attributed to Roberts and Meekins are insufficient to carry that weight

against overwhelming evidence supporting defendants’ nondiscriminatory reason for

demoting Puglisi, i.e., a Civil Service Commission decision instructing the District that

Puglisi could not supervise other supervisors in his civil service title.

       Here, the record shows that Puglisi himself triggered this ruling by repeated

inquiries as to whether his position of Assistant to the General Supervisor was properly

classified. Karl Kampe, the Executive Director of the Civil Service Commission, initially

advised Puglisi that “if there is no major difference in the functions that would elevate a

position to a higher or different classification, there is no need to notify the Civil Service

Commission” about an internal title such as Assistant to the General Supervisor. Nov. 9,

2007 Letter to Puglisi, J.A. 1822. Puglisi wrote again “to inform [Kampe] that there are

major differences in my job functions, duties and responsibilities as Assistant General


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Supervisor” from what Puglisi performed in his “former position as Sanitation

Supervisor.” Nov. 27, 2007 Letter to Kampe, J.A. 1824. Puglisi stated that he was “now

a salaried, non unit, confidential employee with the responsibilities of supervising six

Sanitation, Recycling and Mechanics Supervisors in the daily operations of the District.”

Id.   Kampe requested that Puglisi submit a Position Classification Questionnaire.

Puglisi’s response to that questionnaire prompted the Civil Service Commission to

conclude that Puglisi’s supervision of supervisors exceeded his civil service title, and it

directed the District to cease and desist from assigning him those duties. It was in these

circumstances that the Board reassigned Puglisi to his previous position of Sanitary

Supervisor, which required a reduction in the salary that he had received as an Assistant to

the General Supervisor.

       Although Puglisi contends that this demotion was unnecessary because defendants

had anticipated that, as Assistant to the General Supervisor, he would spend only 30% of

his time performing supervisory tasks, he makes no showing that the decision to eliminate

a position, at least a third of which he could no longer perform, was in any way a pretext for

retaliation. Indeed, that conclusion is reinforced by the lack of evidence that defendants in

any way sought to have the Civil Service Commission review Puglisi’s position. As

already noted, Puglisi alone sought that action. On this record, we are compelled to

conclude that no reasonable juror could find that defendants’ nondiscriminatory reason for

demoting Puglisi was a pretext for a retaliatory animus and that “but for” defendants’


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desire to retaliate, Puglisi would not have been demoted.

2.     First Amendment Retaliation

       Puglisi claims that defendants violated his First Amendment rights by retaliating

against him for testifying in support of another employee. “To state a First Amendment

retaliation claim, a plaintiff must establish that: (1) his speech or conduct was protected

by the First Amendment; (2) the defendant took an adverse action against him; and (3)

there was a causal connection between this adverse action and the protected speech.” Cox

v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011). “[E]ven if there is

evidence that the adverse employment action was motivated in part by protected speech,

the government can avoid liability if it can show that it would have taken the same adverse

action in the absence of the protected speech.” Anemone v. Metro. Transp. Auth., 629

F.3d 97, 114 (2d Cir. 2011) (internal quotation marks omitted). Here, for the reasons

discussed in the previous section, Puglisi’s demotion occurred as a result of his persistent

requests to have his position recognized by the Civil Service Commission. Further,

Puglisi puts forward no evidence demonstrating a triable issue of fact as to whether the

Board would have taken the same action in the absence of his testifying at the SDHR

hearing. Thus, Puglisi cannot carry his burden on causation.

       In sum, we conclude, as the district court did, that Puglisi failed to adduce a triable

question of fact on his claim of retaliatory demotion. We also conclude that Puglisi’s First

Amendment claim fails because he cannot demonstrate the requisite causal connection


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between his demotion and his speech. We have considered Puglisi’s remaining arguments

and conclude that they are without merit. The judgment of the district court is therefore

AFFIRMED.

                                  FOR THE COURT:
                                  CATHERINE O=HAGAN WOLFE, Clerk of Court




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