12-4507-cv
Sacha v. Sedita

                           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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
27th day of November, two thousand thirteen.

Present:    ROBERT A. KATZMANN,
                        Chief Judge,
            PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
                        Circuit Judges.
_____________________________________________________

MARK SACHA,

                              Plaintiff-Appellant,

                        -v-                                                12-4507-cv

FRANK A. SEDITA, III, DISTRICT ATTORNEY OF ERIE COUNTY,
NEW YORK, ERIE COUNTY DISTRICT ATTORNEY’S OFFICE,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:      Matthew J. Fusco (Lucinda Odell Lapoff, on the brief),
                              Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP,
                              Rochester, N.Y.

Appearing for Appellees:      Adam W. Perry (Joseph S. Brown, of counsel, on the brief),
                              Hodgson Russ, LLP, Buffalo, N.Y.


       Appeal from the United States District Court for the Western District of New York
(Skretny, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Mark Sacha appeals from the judgment entered on October, 23, 2012, by the United
States District Court for the Western District of New York (Skretny, J.), granting defendant-
appellees Frank A. Sedita, III’s, and the Erie County District Attorney’s Office’s (hereinafter,
“Sedita”) motion for summary judgment. At issue is whether the district court erred in
concluding that Sacha’s speech was not protected under the First Amendment. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        “To survive a motion for summary judgment on a First Amendment retaliation claim in
the public employment context, the plaintiff must present evidence which shows . . . that the
speech at issue was protected,” among other requirements. Nagle v. Marron, 663 F.3d 100, 105
(2d Cir. 2011) (internal quotation marks omitted). To show that speech was protected, plaintiffs
must establish that they were speaking “as a citizen on a matter of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006). The government entity can still prevail if it “had an
adequate justification for treating the employee differently from any other member of the general
public.” Id. (citing Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, Will Cty., 391 U.S.
563, 568 (1968). To establish whether the government entity was justified in treating the
employee differently from any other member of the general public, and taking an adverse
employment action against the employee, a court must weigh “free speech concerns . . . against
efficient public service to ascertain to which the scale tips.” Melzer v. Bd. of Ed. of City Sch.
Dist. of the City of New York, 336 F.3d 185, 193 (2d Cir. 2003).

         We affirm the district court, but do so on alternate grounds and make no ruling as to the
correctness of the district court’s basis for dismissal. See, e.g., Adirondack Transit Lines, Inc. v.
United Transp. Union, 305 F.3d 82, 88 (2d Cir. 2002) (“[W]e are entitled to affirm the district
court on any ground for which there is support in the record, even if not adopted by the district
court.”). In this case Sedita has demonstrated that Sacha’s speech was sufficiently disruptive to
justify terminating his employment as an assistant district attorney. Though the public’s interest
in the subject of Sacha’s speech is significant, it is not significant enough to overcome the
systemic disruption to the Erie County District Attorney’s Office that First Amendment
protection for speech such as Sacha’s has the potential to cause.

       We have considered Sacha’s remaining arguments and find they are without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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