11-1271-cv
Wahl v. County of Suffolk

                            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
“SUMMARY 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
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 24th day of February, two thousand twelve.

Present: ROBERT A. KATZMANN,
         SUSAN L. CARNEY,
                     Circuit Judges,
         JANE A. RESTANI,
                     Judge.*
____________________________________________________________

RONALD WAHL,

                          Plaintiff-Appellant,

                          -v-                            No. 11-1271-cv

COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPARTMENT, RICHARD
DORMER, Commissioner, ROGER SHANNON, Deputy Police Commissioner, ROBERT
CASSAGNE, Inspector, DENNIS SULLIVAN, Lieutenant, STEPHEN HERNANDEZ,
Lieutenant, PAUL RYAN, Captain, EDWARD BRADY, Deputy Inspector, individually and in
their official capacities,

                          Defendants-Appellees.

____________________________________________________________



       *
         Judge Jane A. Restani, of the United States Court of International Trade, sitting by
designation.
For Plaintiff-Appellant:                  RICK OSTROVE, Leeds Morelli & Brown, P.C., Carle
                                          Place, N.Y.

For Defendants-Appellees:                 CHRISTOPHER P. TERMINI, Assistant County Attorney,
                                          for Christine Malafi, Suffolk County Attorney,
                                          Hauppauge, N.Y.

       Appeal from the United States District Court for the Eastern District of New York
(Feuerstein, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Ronald Wahl (“Wahl”) appeals from a final order and judgment

entered on March 17, 2011 by the United States District Court for the Eastern District of New

York (Feuerstein, J.), granting defendants-appellees’ motion for summary judgment and

dismissing Wahl’s complaint in its entirety. Wahl’s complaint alleged that he had been subject

to a discriminatory maternity leave policy that provided benefits to women but not to men in

violation of the equal protection clause of the Fourteenth Amendment, and to retaliation in

violation of the First Amendment and the Family and Medical Leave Act (“FMLA”) for

complaining about this policy. The district court dismissed all of Wahl’s claims, finding, inter

alia, that: (1) the defendants’ maternity leave policy complies with the equal protection clause;

and (2) Wahl’s retaliation claims under the First Amendment and the FMLA should be dismissed

because Wahl failed to allege a causal connection between his speech and the adverse

employment actions he experienced. Wahl appeals each of the district court’s holdings. We

assume the parties’ familiarity with the remaining facts and procedural history of the case.

       “We review a grant of summary judgment de novo to determine ‘whether genuine

disputes over material fact exist . . . which should properly be submitted to a jury or whether,


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where no issues of material fact are found, the moving party is entitled to judgment as a matter of

law.’” Nagle v. Marron, 663 F.3d 100, 104-05 (2d Cir. 2011) (quoting Byrnie v. Town of

Cromwell Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001)). “We resolve all ambiguities and draw

all inferences in favor of the non-moving party.” Id. at 105 (internal quotation marks omitted).

       We first consider Wahl’s argument that the district court erred in finding that the

defendants’ maternity leave policy does not violate the equal protection clause of the Fourteenth

Amendment. This argument lacks merit. “For a gender-based classification to withstand equal

protection scrutiny, it must be established at least that the [challenged] classification serves

important governmental objectives and that the discriminatory means employed are substantially

related to the achievement of those objectives.” Tuan Anh Nguyen v. INS, 533 U.S. 53, 60

(2001) (internal quotation marks omitted). Here, it is undisputed that protecting women in the

workplace is an important governmental objective. Wahl, however, contends that the Suffolk

County Police Department’s maternity leave policy is unconstitutional because it is not

substantially related to this legitimate goal. Specifically, Wahl argues that the policy, which

permits parents of both genders to take time off following the birth of a child, but allows only

women who have given birth to use accrued sick days before being taken off payroll, is “not

attributable to any different physical needs of men and women” because “a woman can take the

leave even if she is perfectly capable of working.” Pl. Br. 10. As the district court found, this

argument is unavailing because it overlooks the physical reality of childbirth, which entails “a

number of medical procedures and recovery time, [and] which require[s] repeated visits to

specialized doctors and time to address and investigate a variety of possible complications.”

App. 281. Thus, as the district court held, the contested policy is “narrowly tailored” to address


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the government’s valid interest.1

       We turn next to Wahl’s claim that the district court erred by dismissing his First

Amendment retaliation claim due to his failure to allege a causal connection between his

protected speech and the adverse employment actions he experienced. “A plaintiff can establish

a causal connection that suggests retaliation by showing that protected activity was close in time

to the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). Even if the plaintiff

demonstrates such a causal connection, the “defendant can still prevail . . . if it can show that it

would have taken the same adverse employment action even in the absence of the protected

conduct.” Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251-52 (2d Cir. 2006)

(internal quotation marks omitted). Wahl relies principally on temporal proximity to establish

causation. He emphasizes that in March 2007, just two days after he requested maternity leave

and asserted his view that the maternity leave policy was discriminatory, he was switched from a

steady night tour to rotating tours and, the following month, the defendants initiated an

investigation of his use of sick time. As the district court explained, the flaw in this argument is

that prior to his request for maternity leave in March 2007, Wahl had already been officially

advised three times that the defendants were concerned about his misuse of sick time. Moreover,

as the lower court noted, even if Wahl could demonstrate that his protected speech was a

motivating factor in the defendants’ decision making, the defendants offered ample unrebutted

evidence indicating that they would have taken the same steps to discipline Wahl even if he had

not complained about the maternity leave policy.


       1
         Because we find that the County’s maternity leave policy is constitutional, it is not
necessary to address Wahl’s argument that the Police Benevolent Association could not waive
his claim by consenting to the policy in the Police Benevolent Association Contract.

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       Finally, we consider and reject Wahl’s claim for FMLA retaliation. To state a prima

facie case of FMLA retaliation, a plaintiff must demonstrate, inter alia, that he “exercised rights

protected under the FMLA” and that he “suffered an adverse employment action” that “occurred

under circumstances giving rise to an inference of retaliatory intent.” Potenza v. City of New

York, 365 F.3d 165, 168 (2d Cir. 2004) (per curiam). The record here clearly shows that on

several occasions Wahl was counseled that he could take child care leave under the FMLA, but

he chose not to because he wanted to use his accrued sick time.

       We have considered Wahl’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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