     10-5179-cv
     Wrobel v. County of Erie

 1                      UNITED STATES COURT OF APPEALS
 2
 3                              FOR THE SECOND CIRCUIT
 4
 5                                August Term, 2011
 6
 7
 8   (Submitted: February 15, 2012              Decided: August 1, 2012)
 9
10                              Docket No. 10-5179-cv
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   TIMOTHY M. WROBEL,
15
16                    Plaintiff-Appellant,
17
18              - v.-
19
20   COUNTY OF ERIE, DOUGLAS NAYLON, Individually and in his
21   official capacity as a County Employee, DANIEL RIDER,
22   Individually and in his official capacity as a County
23   Employee,
24
25                    Defendants-Appellees.
26
27   - - - - - - - - - - - - - - - - - - - -x
28

29        Before:           JACOBS, Chief Judge, CALABRESI and POOLER,
30                          Circuit Judges.
31
32        Timothy Wrobel appeals from a judgment entered in the

33   United States District Court for the Western District of New

34   York (Curtin, J.), dismissing on summary judgment his First

35   Amendment claims brought under 42 U.S.C. § 1983 against his

36   former employer, Erie County, and certain employees.

37   Because Wrobel failed to adduce evidence that his
1    mistreatment was caused by political association or by

2    speech about matters of public concern, we affirm.

3        Judge CALABRESI dissents in a separate opinion.

 4   Christen Archer Pierrot, Chiacchia & Fleming, LLP, Hamburg,
 5   N.Y. (Andrew P. Fleming, on brief), for Appellant.
 6
 7   David Sleight, Erie County Department of Law, Buffalo N.Y.,
 8   for Appellees County of Erie and Daniel Rider.
 9
10   Robert Louis Boreanaz, Lipsitz Green Scime Cambria LLP,
11   Buffalo, N.Y., for Appellee Douglas Naylon.
12
13
14   DENNIS JACOBS, Chief Judge:
15
16       Timothy Wrobel appeals from a judgment entered in the

17   United States District Court for the Western District of New

18   York (Curtin, J.), dismissing on summary judgment his First

19   Amendment claims brought under 42 U.S.C. § 1983 against his

20   former employer, Erie County, and certain employees.

21   Because Wrobel failed to adduce evidence that his

22   mistreatment was caused by political association or by

23   speech about matters of public concern, we affirm.

24       Wrobel was a longtime employee of Erie County's highway

25   division.   In 1999, a newly elected Republican county

26   executive appointed the defendants as Wrobel’s direct and

27   indirect supervisors.   Over the next eighteen months

28   Wrobel’s run-ins with them resulted in harassment of him and



                                   2
1    his transfer to a faraway workplace.   His direct supervisor,

2    defendant Douglas Naylon, repeatedly referred to employees

3    that predated his tenure as being part of the “old regime,”

4    and to the office under his supervision as the “new regime.”

5    Following his transfer, Wrobel made anonymous complaints to

6    public officials and a confidential report to the FBI, for

7    which he claims he was further persecuted.   Wrobel’s

8    complaint alleges retaliation in violation of his First

9    Amendment rights to free association and free speech.     The

10   thrust of the complaint is that Wrobel suffered

11   discrimination because he was apolitical, and not

12   politically aligned with the “new regime.”   Because we

13   conclude that no reasonable jury could find that Wrobel’s

14   mistreatment was caused by any political activity--or

15   inactivity--we affirm the district court’s grant of summary

16   judgment in favor of defendants.

17

18                             BACKGROUND

19       Timothy Wrobel worked as a blacksmith at a highway

20   maintenance facility of the Erie County highway department

21   called the Aurora barn.   In 1999, Republican Joel Giambra

22   succeeded Democrat Dennis Gorski as Erie County Executive.


                                   3
1    The new administration hired defendant Naylon as the senior

2    highway maintenance engineer at the Aurora barn, in charge

3    of day-to-day activities, including direct oversight of

4    Wrobel and the other employees; defendant Rider was hired to

5    run the entire highway department.

6        The record on summary judgment is extensive, but the

7    salient facts can be summarized.     Immediately after the

8    defendants were hired by the county, Wrobel and his

9    coworkers clashed with them.    In January 2001, Wrobel

10   confronted Naylon about what he perceived to be rudeness and

11   disrespect.   Naylon responded that the trouble with the

12   Aurora barn was Wrobel and other workers from what Naylon

13   labeled the “old regime,” and suggested that Wrobel should

14   transfer to another facility.

15       A few months later, Wrobel received written notice to

16   appear for a disciplinary hearing on six charges:

17   insubordination stemming from the January confrontation,

18   falsifying his daily reports, leaving the job-site without

19   permission, lateness, excessive breaks, and personal use of

20   his work phone.   The upshot of the disciplinary hearing was

21   that Rider transferred Wrobel to another maintenance

22   facility, the Tonawanda plant.      The transfer greatly



                                     4
1    lengthened Wrobel’s commute, and the stress of this ordeal

2    caused him to miss work for several weeks.

3        Although Wrobel admitted to some of the misconduct, he

4    grieved the discipline on the ground that it was actually

5    punishment for his friendship with Naylon’s predecessor (and

6    that Naylon’s work expectations were unrealistic).   An

7    arbitrator ruled for the county, finding that “[t]he

8    grievant seemed determined to function as an independent

9    contractor,” and that Wrobel justified his occasional

10   tardiness because “no one ever complained to him about it.”

11   (J.A. 272-73.)

12       Soon after Wrobel’s transfer, his wife joined with some

13   of his former colleagues to expose Naylon and Rider’s

14   mistreatment of county workers, as well as other improper

15   behavior they believed to be taking place in the highway

16   department, such as misusing public funds and operating

17   county equipment while intoxicated.   In May 2001, the group

18   sent letters about the Aurora barn--signed only by

19   “Concerned Erie County Employees”--to the state Democratic

20   chairman and the New York State attorney general complaining

21   about the state of affairs at the Aurora barn.   (Wrobel’s

22   wife also followed Naylon with a camera to catch him



                                  5
1    misusing county equipment.)   In August 2001, Wrobel and

2    others met with an FBI agent to float similar allegations

3    about Naylon.

4        Wrobel alleges that Naylon and Rider punished him for

5    speaking out against them.    Specifically, Naylon harassed

6    him, told him to tell his wife to stay away from all County

7    buildings, and accused him of being in contact with a former

8    Aurora barn employee.   Shortly after his transfer to the

9    Tonawanda plant, an Erie County sheriff questioned Wrobel

10   about a theft of wood from the Aurora barn, and Wrobel

11   alleges that the defendants inspired the inquiry.

12       During his tenure at the highway department, Naylon was

13   overt in his dislike for those who had preceded him in the

14   Aurora barn and his desire to purge the facility’s

15   hold-overs.   Early on, Naylon asked Wrobel, as a 22-year

16   veteran of the Highway department, to advise as to who were

17   the “good guys” and “bad guys,” who were the employees that

18   “do their jobs” and who are the “goof offs.”   Wrobel

19   demurred and told Naylon that he would soon figure it out

20   himself.   A few months later, Naylon ordered Wrobel to tell

21   a retired employee, Gary Kane, to stop coming by the Aurora

22   barn.   Naylon told Wrobel that “it doesn’t look good for me



                                    6
1    and Joel Giambra and the new administration.    He’s retired

2    from the Gorski administration, tell him to be on his merry

3    way and enjoy himself.”   (J.A. 696.)    Naylon referred to

4    Kane as part of an “old regime.”

5        Two former employees of the Aurora barn similarly

6    suffered under Naylon’s management.     Anthony Marchitte was

7    transferred from the Aurora barn to the Angola barn against

8    his will, after being told the transfer was “in his best

9    interests.”    Naylon gloated “the fat cat has just begun to

10   sing . . . all you guys are going to be gone . . . things

11   are really going to change around here.”    (J.A. 1003.)

12   Wrobel’s friend Timothy Elliot was also transferred from the

13   Aurora barn in early 2001.    Before his transfer, Naylon

14   called him into his office and told him that “everything has

15   to go through us,” “that was the old regime, this is the new

16   regime,” and “if you're not with us, you’re against us.”

17   (J.A. 1008.)

18       Other employees provided similar accounts.     Paul

19   Rebrovich was asked by Naylon if he was appointed by Gorski,

20   and whether he was backed by the Gorski administration or

21   the current administration.   Rebrovich told him that nobody

22   in his position was appointed by an administration and that


                                    7
1    he had never been politically active.   Naylon also boasted

2    to him that, eventually, “we’re going to get our own people

3    in here” and “get rid of this old regime.”   (J.A. 946-47.)

4        Wrobel’s deposition recounts a single instance in which

5    political affiliation was discussed.    On Naylon’s first day

6    on the job, he asked Wrobel about his political affiliation,

7    and Wrobel told him that he was a Republican (as was

8    Naylon).   Elliot likewise reported a single instance: before

9    his transfer out of Aurora, Naylon said to him “we know you

10   guys are all democrats, hired by the other administration.”

11       Wrobel’s complaint alleged (relevant to this appeal)

12   that defendants violated his (1) First Amendment right to

13   freedom of association by harassing him because of his

14   political association with the previous county

15   administration and (2) First Amendment right to freedom of

16   speech by retaliating against him for speaking about matters

17   of public concern taking place within the Erie County

18   highway department.   An earlier panel of this Court found

19   that both claims were adequately pleaded.    See Wrobel v.

20   Cnty. of Erie, 211 F. App’x 71, 72-73 (2d Cir. 2007).    After

21   discovery closed, defendants successfully moved for summary

22   judgment on the ground that Wrobel had adduced insufficient

23   evidence to raise a question of fact on either claim.

                                   8
1                              DISCUSSION

2        We review de novo a grant of summary judgment, viewing

3    the evidence in the light most favorable to the non-moving

4    party and drawing all reasonable inferences in that party’s

5    favor.   See Costello v. City of Burlington, 632 F.3d 41, 45

6    (2d Cir. 2011).   Summary judgment is only appropriate when

7    the evidence is “so one-sided that one party must prevail as

8    a matter of law.”   Kulak v. City of New York, 88 F.3d 63, 70

9    (2d Cir. 1996) (internal quotation marks omitted).

10

11                                 I

12       “Public employees do not surrender their First

13   Amendment rights to comment on matters of public interest by

14   virtue of their acceptance of government employment.”     Cobb

15   v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2004) (citing Pickering

16   v. Bd. of Educ., 391 U.S. 563, 568 (1968)).   The First

17   Amendment right extends to associational conduct, including

18   the decision not to support or affiliate with a political

19   party or faction.   Id. at 102. “[C]onditioning public

20   employment on the provision of support for the favored

21   political party unquestionably inhibits protected belief and

22   association.”   Rutan v. Repulican Party of Illinois, 497

23   U.S. 62, 69 (1990) (internal quotation marks omitted).    To

                                   9
1    succeed on a First Amendment claim brought pursuant to

2    Section 1983, a plaintiff must be able to demonstrate that

3    (1) the conduct at issue was constitutionally protected, (2)

4    the alleged retaliatory action adversely affected his

5    constitutionally protected conduct, and (3) a causal

6    relationship existed between the constitutionally protected

7    conduct and the retaliatory action.   See Camacho v. Brandon,

8    317 F.3d 153, 160 (2d Cir. 2003).

9        The First Amendment is thus violated when state

10   officials engage in quintessential political patronage, as

11   when a newly-elected county sheriff sought to fire

12   Republican deputies to provide jobs to Democrats, see Elrod

13   v. Burns, 427 U.S. 347, 372-73 (1976) (plurality opinion);

14   when a public defender sought to dismiss Republican

15   assistants based on party affiliation, see Branti v. Finkel,

16   445 U.S. 507, 517 (1980); and when a Governor was giving

17   permission for the hiring, transferring, promotion, and

18   recalling of only state employees who were Democrats, see

19   Rutan, 497 U.S. at 69.

20       The protection of these cases has been extended to

21   politically neutral employees who are treated less favorably

22   than employees politically aligned with those in power, see

23   Welch v. Ciampa, 542 F.3d 927, 939 & n.3 (1st Cir. 2008);

                                  10
1    Gann v. Cline, 519 F.3d 1090, 1095 (10th Cir. 2008); Galli

2    v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 273 (3d Cir.

3    2007), as well as to employees who suffer because of their

4    political support of a losing faction of the party in power,

5    see McCloud v. Testa, 97 F.3d 1536, 1551 (6th Cir. 1996).

6        However, not every association of a public employee can

7    support a Section 1983 claim.    “When employee expression

8    cannot be fairly considered as relating to any matter of

9    political, social, or other concern to the community,

10   government officials should enjoy wide latitude in managing

11   their offices, without intrusive oversight by the judiciary

12   in the name of the First Amendment.”   Connick v. Myers, 461

13   U.S. 138, 146 (1983).   Only if an employee’s speech or

14   associational conduct “touches on a matter of public

15   concern” can a First Amendment claim proceed.   Cobb, 363

16   F.3d at 102; accord Klug v. Chi. Sch. Reform Bd. of Trs.,

17   197 F.3d 853, 857 (7th Cir. 1999); Boals v. Gray, 775 F.2d

18   686, 692 (6th Cir. 1985).   Conduct that falls outside this

19   class of activity is beyond the scope of the First

20   Amendment’s protections for public employee speech.    See

21   Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 781

22   (2d Cir. 1991) (“[N]ot all speech by a public employee can

23   provide the basis for a constitutional cause of action.”).

                                     11
1    The public-concern requirement “reflects both the historical

2    evolvement of the rights of public employees, and the common

3    sense realization that government offices could not function

4    if every employment decision became a constitutional

5    matter.”   Connick, 461 U.S. at 143.   Whether association or

6    speech is on a matter of public concern is a fact-intensive

7    inquiry; nevertheless it is a question of law for the court

8    to decide.     See Lewis v. Cohen, 165 F.3d 154, 164 (2d Cir.

9    1999).

10       Wrobel characterizes his associational conduct as “not

11   pledg[ing] his support for the Giambra administration” and

12   “cho[osing] not to affiliate himself politically” with it.

13   (Appellant Br. 11.)    In Wrobel’s first appeal, we decided

14   that retaliation for such conduct, if adequately proven,

15   could give rise to Section 1983 liability.    Wrobel, 211 F.

16   App’x at 72.    Accordingly, we now consider only whether the

17   evidence submitted on summary judgment is sufficient to raise

18   a question of material fact, such that a jury could find that

19   Wrobel did in fact engage in associational conduct related to

20   a matter of public concern, and that defendants mistreated

21   him as a result of that conduct.

22

23

                                     12
1           The dispositive issue for Wrobel’s free association

2    claim is the causal relationship between the association

3    identified and his transfer.    To prove that his political

4    indifference was the reason Naylon and Rider mistreated him,

5    he relies principally on Naylon’s references to an “old

6    regime” and a “new regime.”    Assuming that this designation

7    does in fact distinguish between employees brought in by

8    Naylon and those already there when he arrived, there is no

9    evidence or available inference that this distinction is

10   political in the sense that it relates to any political,

11   social, or other community concern.    See Connick, 461 U.S. at

12   146.    Wrobel submitted evidence that Naylon questioned him

13   about his friends at work, ordered him to tell a friendly

14   former co-worker to stay away from the Aurora barn, and

15   blamed the “old regime” for difficulties at the Aurora barn.

16   Nothing in the record demonstrates that the dysfunction at

17   the Aurora barn was related to anyone’s political

18   association.    The record shows instead a toxic form of

19   “office politics” that, no matter how severe or how

20   reprehensible, does not violate the First Amendment.       See

21   Klug, 197 F.3d at 858.    Wrobel alleges no more than

22   generalized references to a heightened standard of

23   performance in the wake of a change of political regime.

                                     13
1    That is simply to be expected when the voters replace one set

2    of managers with another; the recently-elected call it

3    reform.    Naylon’s passing references to a “new regime” and an

4    “old regime”, without more, cannot transform incompetent and

5    heavy-handed management into a violation of the First

6    Amendment.

7        Wrobel points to one sentence of Timothy Elliot’s

8    affidavit, quoting Naylon as stating “we know you guys are

9    all democrats, hired by the other administration.”    (J.A.

10   1008.)    This statement is not enough to create an issue of

11   material fact as to whether Wrobel was being retaliated

12   against for protected associational conduct: Naylon knew

13   Wrobel to be a Republican.    And the content of the Elliot

14   affidavit renders any inference in Wrobel’s favor even more

15   implausible.   Naylon also told Elliot that “we’re forming a

16   new team and I want to know if you’re going to be on my

17   team.”    (J.A. 1008.)   This invitation is incompatible with

18   the idea that Naylon was rejecting employees on the basis of

19   partisan favoritism.

20       The record does support Wrobel’s assertion that he did

21   not pledge support for or politically align himself with the

22   Giambra administration.    That association, however, is a non

23   sequitur in the context of this case.    Wrobel was never asked

                                     14
1    to donate to, volunteer for, or lend support to any political

2    candidate when Naylon was his supervisor.   Other than being a

3    registered Republican (the same as Naylon and Rider), he had

4    no political affiliation or alliance at the office, and never

5    discussed politics with anyone at the office.    True, an

6    employee can no more be discriminated against for being

7    apolitical than for being a member of the wrong political

8    party.   See Morin v. Tormey, 626 F.3d 40, 44 (2d Cir. 2010).

9    However, the record must still support the fact that such a

10   political association exists.    Wrobel cites no evidence

11   showing that any employee did politically align with or

12   pledge allegiance to the Giambra administration, how an

13   employee would do that, or how he would be rewarded for doing

14   so.

15         There is good reason to hold the plaintiff to his burden

16   of proof in a free association case such as this.   New

17   administrations and officials will often be brought into

18   office specifically because of dissatisfaction with the

19   status quo, and may be expected to implement reforms.     Old

20   employees, especially those in under-performing jobs or

21   facilities, will often be let go to make room for employees

22   who are more capable, trusted or enthusiastic.   There is

23   record evidence that Naylon and others believed the Aurora

                                     15
1    barn to be troubled.   It is to be expected that employees

2    affected by a new regime may resist reform measures

3    regardless of political loyalties.   Moreover, in a reform

4    context, it is to be expected that employees will be fired,

5    demoted, or transferred soon after the change in

6    administration, with the result that there is temporal

7    proximity between the change in “regime” and the adverse

8    employment action.

9        Absent evidence that the adverse employment action was

10   politically motivated, the First Amendment gives a court no

11   license to intervene in a public workplace whenever a new

12   administration redeploys its workforce.    Evidence of

13   political motivation can take different forms.     In cases of

14   patronage, the record will often reveal that the plaintiffs

15   were replaced by members or supporters of the ascendant

16   party, or treated less favorably.    See, e.g., Elrod, 427 U.S.

17   at 351.   This is so even if the associational conduct was the

18   decision not to politically associate.    See Welch, 542 F.3d

19   at 935 (plaintiff replaced by “vocal supporter” of prevailing

20   faction); Galli, 490 F.3d at 269 (plaintiff told by superior

21   that her office was “letting Republicans go,” that “some

22   Democrat [obviously] wants the spot,” and that one has to

23   “pay to play with this administration” (alterations in

                                   16
1    Galli)).   Evidence of political motivation may come in the

2    form of overt pressure to work in a campaign, or donate to

3    it, or vote a certain way.   But unless evidence is required

4    that an employee was adversely treated on account of a

5    political association or abstention, any mistreatment of an

6    apolitical public employee would go to a jury on a

7    constitutional claim.   See Galli, 490 F.3d at 277 (Baylson,

8    J., dissenting).

9        Wrobel has not sustained his burden at summary judgment

10   of creating a genuine issue of fact as to whether his

11   mistreatment was the result of his lack of political

12   allegiance to the new administration.   There is ample

13   evidence that the new administration viewed the Aurora barn

14   as in need of reform.   It is not enough for Wrobel to show

15   mistreatment coupled with political abstention--there must be

16   some evidence that the two are related, or an available

17   inference that it is so.   Naylon’s passing references to the

18   “old regime” adds little or nothing.    New appointees may

19   always be expected to avow an improvement in public services.

20   To survive a motion under Rule 56(c), Wrobel needed to create

21   more than a “metaphysical” possibility that his allegations

22   were correct; he needed to “come forward with specific facts

23   showing that there is a genuine issue for trial.”    Matsushita

                                   17
1    Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

2    586-87 (1986) (internal quotation marks omitted).    He has

3    not.

4

5                                   II

6           Wrobel’s second claim is that he suffered retaliation

7    for speaking out against Naylon and Rider’s treatment of

8    employees and misuse of county property.    The showing

9    required for a free speech claim is the same as for a free

10   association claim.    To prevail on a Section 1983 free speech

11   claim, a public employee must demonstrate (1) his speech

12   addressed a matter of public concern, (2) he suffered an

13   adverse employment action, and (3) a causal connection

14   between the speech and the adverse employment action.     Singh

15   v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008).       Even

16   assuming that Wrobel has identified speech that touches on a

17   matter of public concern, he has failed to show an adverse

18   employment action or a causal connection between the speech

19   and employment conditions that Wrobel deems adverse.

20

21                                   A

22          Wrobel cites four instances of speech touching on a

23   matter of public concern: (1) a May 1, 2001 letter to the

                                     18
1    state chairman of the Democratic party complaining of

2    Naylon’s management style, misuse of county property, and

3    corruption; (2) a similar letter sent to the New York State

4    attorney general on May 17, 2001; (3) a July 2001 phone call

5    by Wrobel’s wife to the New York attorney general’s office,

6    the content of which is unknown; and (4) an August 23, 2001

7    meeting in which the Wrobels and other county workers met

8    with an FBI agent to complain about Naylon’s management

9    style, misuse of county property, and corruption.

10       Not all of the communications can be attributed to

11   Wrobel, and not all address matters of public concern.    The

12   letters to public officials were anonymous.   There is no

13   evidence in the record of a July 2001 phone call allegedly

14   made by Wrobel’s wife and, in any event, there is nothing to

15   suggest that Wrobel participated in such a call.    The

16   grievances of the county employees related chiefly to the

17   internal workings of the highway department, such as Naylon’s

18   mistreatment of employees, and therefore were not of public

19   concern.   See Connick, 461 U.S. at 147.

20       Nevertheless, we can safely assume for purposes of this

21   appeal that Wrobel has proffered some evidence of speech on

22   matters of public concern.   Wrobel’s statements that Naylon

23   misused county equipment, falsified records, and directed

                                   19
1    county business to friends are arguably of public interest.

2    See Johnson v. Ganim, 342 F.3d 105, 112-13 (2d Cir. 2003).

3    “[M]atters of public concern do include speech aimed at

4    uncovering wrongdoing or breaches of the public trust.”

5    Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993).

6

7

8                                   B

9        “In the context of a First Amendment retaliation claim,

10   we have held that only retaliatory conduct that would deter a

11   similarly situated individual of ordinary firmness from

12   exercising his or her constitutional rights constitutes an

13   adverse action.”   Zelnik v. Fashion Inst. of Tech., 464 F.3d

14   217, 225 (2d Cir. 2006) (internal quotation marks and

15   alterations omitted); see also Burlington N. & Santa Fe Ry.

16   Co. v. White, 548 U.S. 53, 57 (2006) (holding that

17   antiretaliation provisions of Title VII apply where employers

18   actions “could well dissuade a reasonable worker from making

19   or supporting a charge of discrimination”).   The list of

20   adverse actions has included harsh measures, such as

21   discharge, refusal to hire, refusal to promote, reduction in

22   pay, and reprimand, as well as some lesser sanctions, such as

23   failure to process a teacher’s insurance form, demotion,

                                   20
1    reassignment to a place that aggravated physical

2    disabilities, and express accusations of lying.    Id.

3        The main act of retaliation cited by Wrobel--his transfer

4    to Tonowanda--predates his speech on a matter of public

5    concern.   To fill that gap, Wrobel relies on three more acts

6    of retaliation that began soon after the anonymous letters

7    were sent: (1) a July 1, 2001 “interrogation,” undertaken by

8    Rider without the presence of a union representative, in

9    which he told Wrobel to tell his wife to “stay out of the

10   County buildings”; (2) Wrobel’s questioning by a county

11   sheriff about a theft at the Aurora barn; and (3) defendants’

12   (orchestrated) false testimony at Wrobel’s arbitration

13   hearing in 2002.1

14       As to (1) and (2), such de minimis slights and insults do

15   not amount to retaliation.   Id.   “It would trivialize the

16   First Amendment to hold that harassment for exercising the

17   right of free speech was always actionable no matter how

18   unlikely to deter a person of ordinary firmness from that




           1
             Wrobel’s brief also portrays as retaliatory conduct
      the fact that his name appeared on Giambra’s so-called “lay-
      off” list. However, Wrobel was not laid off as a result,
      and there is no suggestion that he suffered some other
      adverse employment change as a result of appearing on that
      list.
                                   21
1    exercise.”    Id. at 226 (internal quotation marks omitted).2

2    The evidence does not support an inference that the July 1

3    interaction between Rider and Wrobel was the type of conduct

4    that would “deter an individual of ordinary firmness from

5    exercising his or her constitutional rights.”    Zelnik, 464

6    F.3d at 225    The same is true of the sheriff deputy’s

7    questioning of Wrobel.    No competent evidence suggests that

8    defendants initiated the investigation or accused Wrobel of

9    theft, and the entire encounter consisted of a few polite

10   questions, after which Wrobel was left alone.

11       The incident involving the grievance hearing contesting

12   Wrobel’s transfer has no support in the record.    Wrobel’s

13   brief speculates, “on information and belief,” that

14   defendants “encouraged and bribed employees to testify

15   against Mr. Wrobel, offering at least one employee a

16   promotion in exchange for his negative testimony.”

17   (Appellant’s Br. 43.)    The only evidence cited is an email

18   from Rider to Naylon asking him to attend the hearing and

19   bring other employees who did “not want him back.”     The email


           2
              However, a critical mass of minor incidents may
      support a claim for retaliation. Zelnik, 464 F.3d at 225;
      Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (“Our
      precedent allows a combination of seemingly minor incidents
      to form the basis of a constitutional retaliation claim once
      they reach a critical mass.”).
                                     22
1    is evidence that defendants disliked Wrobel; but Rider’s

2    defense of his past decision to transfer Wrobel is not

3    retaliatory.

4

5                                    C

6        Even if Wrobel had produced evidence that defendants took

7    action sufficiently severe to constitute retaliation, Wrobel

8    would still be required to produce evidence of a causal

9    relationship between his speech--sending anonymous letters to

10   state officials, and speaking confidentially with the FBI--

11   and the retaliation.

12       A causal relationship can be demonstrated either

13   indirectly by means of circumstantial evidence, including

14   that the protected speech was followed by adverse treatment,

15   or by direct evidence of animus.    See Mandell v. Cnty. of

16   Suffolk, 316 F.3d 368, 383 (2d Cir. 2003).   The sufficiency

17   of such circumstantial evidence depends on the circumstances

18   of each case.   However, when (as here) the speech was made

19   anonymously or confidentially, “[i]t is only intuitive that

20   for protected conduct to be a substantial or motiving factor

21   in a decision, the decisionmakers must be aware of the

22   protected conduct.”    Ambrose v. Twp. of Robinson, 303 F.3d

23   488, 493 (3d Cir. 2002).

                                    23
1        Wrobel argues that a jury could infer that defendants

2    knew of his speech because they became aware in August 2001

3    that someone had anonymously submitted photographs of highway

4    department personnel using county equipment on private

5    property.   It would be wholly speculative, however, for a

6    jury to find that defendants believed Wrobel was the person

7    responsible for these photographs.     Wrobel argues for the

8    inference on the basis that in April 2002 Rider called

9    Wrobel’s wife a “liar” at an arbitration concerning his

10   transfer to Tonawanda.   The incident occurred eight months

11   later, and Rider’s statement is vague and without context.3    A

12   reasonable jury could not find a causal connection between

13   Wrobel’s confidential and anonymous statements, and the

14   conduct alleged to be retaliatory.

15

16                             CONCLUSION

17       For the foregoing reasons, we affirm the judgment of the

18   district court.


           3
             Wrobel also argues that knowledge of Wrobel’s speech
      can be inferred from Naylon’s statement at the March 2001
      disciplinary hearing that “I don’t give a f*** what
      legislator called me, it is not going to do you any good
      here.” (J.A. 426.) Days earlier, Wrobel’s wife had called
      to county legislators to complain of Naylon’s mistreatment
      of his subordinates. However, her complaints did not touch
      on matters of public concern. See Connick, 461 U.S. at 147.

                                   24
 1    CALABRESI, J., dissenting:


 2           I agree with the majority opinion in its description of the facts and history of this case, its


 3    statements of the controlling law in Parts I and II, and its ruling that Wrobel failed to raise


 4    questions of material fact warranting a trial on his First Amendment speech claim. I respectfully


 5    dissent, however, because I believe that Wrobel has adduced sufficient evidence to permit a trial


 6    on his First Amendment political association claim.


 7           Undoubtedly, newly elected administrations are permitted to pursue reform. Such reform


 8    might well include ridding a public agency of underperforming employees hired by preceding


 9    administrations. And there is certainly evidence in the record that supports the defendants’


10    claims that Wrobel and other employees hired by the preceding administrations were disobedient


11    and inefficient. Even if these claims were shown to be true, however, the record is also rife with


12    allegations of the defendants harassing their employees or otherwise treating them uncivilly. The


13    tactics allegedly adopted by the defendants remind us that “reform” may carry its own abuses.


14    But such abuses, as the majority rightly emphasizes, do not without more amount to a federal




                                                                                                          1
 1    claim. Specifically, for a First Amendment political association claim to be valid, there must be


 2    evidence that the abuses were politically motivated.


 3           Unlike the majority, I believe that the record before us contains evidence that would


 4    permit a jury to conclude that an impermissible political agenda motivated the defendants’


 5    treatment of Wrobel. Considered on their own and without some indication of a political context,


 6    Naylon’s many references to replacing “old regimes” with “new regimes” and forming “new


 7    teams” do not carry political valence. These terms could simply serve, in Naylon’s manner of


 8    talking, to draw non-political lines between previously hired workers and Giambra’s newer, and


 9    assertedly more effective, employees. In this I agree with the majority. Nevertheless, there is one


10    statement in the record—acknowledged, but I think undervalued, by the majority—that I think


11    would allow a jury to read political valences into all those otherwise neutral references.


12           Timothy Elliott stated in his affidavit of May 24, 2010: “At one point during one of the


13    initial conversations I had with Naylon, he told me that, ‘we know you guys are all democrats,


14    hired by the other administration’. . . .” As I read the record, a jury could find that Naylon’s


15    remark about “democrats” was made in the same time frame as his other statements regarding



                                                                                                       2
 1    “regimes” and “teams.” And, if it did so find, a jury could conclude that, for Naylon, the “old


 2    regime” was equivalent to “democrats,” i.e., Naylon’s political antagonists. A jury could then


 3    reasonably also find that Naylon’s campaign to “get rid of [the] old regime” constituted a


 4    politically motivated purge.


 5              Of course, Wrobel had declared himself a Republican during an early meeting with


 6    Naylon. But Wrobel has also alleged that—notwithstanding this early declaration—


 7    Naylon later accused him of being part of the “old regime” and “in the same boat” as Elliott and


 8    other pre-Giambra hires. In light of Wrobel’s allegations and Elliott’s testimony, it would be


 9    entirely plausible for a jury to conclude (a) that Naylon considered Wrobel part of a faction


10    politically opposed to Giambra, and (b) that Naylon took adverse actions against him for this


11    reason.


12              The facts of this case render our disposition a close call. But, all things considered, I


13    would let a jury decide the validity of Wrobel’s political association claim. For that reason, I


14    respectfully DISSENT.




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