         12-1127-cv
         Monz v. Rocky Point Fire District, et al.

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of March, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                CHRISTOPHER F. DRONEY,
 8                         Circuit Judges,
 9                VINCENT L. BRICCETTI,
10                         District Judge.*
11
12
13
14       KENNETH MONZ,
15
16                                     Plaintiff-Appellant,
17
18                      -v.-                                                        12-1127-cv
19
20       ROCKY POINT FIRE DISTRICT, ANTHONY GALLINO,
21       INDIVIDUALLY AND IN HIS CAPACITY AS CHAIRMAN
22       OF THE BOARD OF THE ROCKY POINT FIRE
23       DISTRICT BOARD OF FIRE COMMISSIONERS,
24       WILLIAM LATTMAN, DAVID BREWER, INDIVIDUALLY
25       AND IN THEIR OFFICIAL CAPACITIES AS MEMBERS
26       OF THE ROCKY POINT FIRE DISTRICT BOARD OF FIRE
27       COMMISSIONERS,
28
29                                     Defendants-Appellees,

                *
                The Honorable Vincent L. Briccetti, of the United States
         District Court for the Southern District of New York, sitting by
         designation.
 1   ROCKY POINT FIRE DEPARTMENT,
 2   ENGINE CO. #1, OF THE ROCKY POINT FIRE
 3   DEPARTMENT, ALFONSE TIZANO, ANN LOGAN,
 4
 5                     Defendants.
 6
 7
 8   FOR APPELLANT:    SCOTT J. KREPPEIN, Hagney, Quatela,
 9                     Hargraves & Mari PLLC, Hauppauge, NY.
10
11   FOR APPELLEES:    JAMES J. KEEFE, Mineola, NY.
12
13        Appeal from the United States District Court for the
14   Eastern District of New York (Seybert, J.).
15
16       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17   AND DECREED that the judgment of the United States District

18   Court for the Eastern District of New York is AFFIRMED.

19       Plaintiff-Appellant Kenneth Monz (“Monz”) appeals from

20   a February 15, 2012 Memorandum and Order of the United

21   States District Court for the Eastern District of New York

22   (Seybert, J.) granting Defendants-Appellees’ Rule 50(b)

23   motion for judgment as a matter of law.   The district court

24   entered judgment as a matter of law and dismissed Monz’s

25   First Amendment retaliation claim, brought under 42 U.S.C. §

26   1983, after a jury reached a verdict in favor of Monz and

27   awarded him $350,000 in compensatory damages.    We assume the

28   parties’ familiarity with the underlying facts, the

29   procedural history, and the issues presented for review.

30

                                     2
1        “We review de novo a district court’s decision to grant

2    a Rule 50 motion for judgment as a matter of law, applying

3    the same standard as the district court.”   Cash v. Cnty. of

4    Erie, 654 F.3d 324, 332-33 (2d Cir. 2011) (internal

5    citations omitted).   This standard is quite stringent;

6    judgment as a matter of law is appropriate “only when ‘a

7    party has been fully heard on an issue during a jury trial

8    and the court finds that a reasonable jury would not have a

9    legally sufficient evidentiary basis to find for the party

10   on that issue.’” Id. (quoting Fed. R. Civ. P. 50(a)(1)).     In

11   a case like this one, where the jury has already returned a

12   verdict in favor of the non-movant, the burden is

13   “particularly heavy,” and we should uphold the district

14   court’s decision only “if there exists such a complete

15   absence of evidence supporting the verdict that the jury’s

16   findings could only have been the result of sheer surmise

17   and conjecture, or the evidence in favor of the movant is so

18   overwhelming that reasonable and fair minded persons could

19   not arrive at a verdict against it.”   See id. (internal

20   quotation marks omitted).

21       To succeed on his First Amendment retaliation claim, a

22   plaintiff must present legally sufficient evidence for the

23   jury to find it more likely than not that “(1) his speech


                                   3
1    was constitutionally protected, (2) he suffered an adverse

2    employment decision, and (3) a causal connection exists

3    between his speech and the adverse employment determination

4    against him, so that it can be said that his speech was a

5    motivating factor in the determination.”2   Gorman-Bakos v.

6    Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545,

7    553 (2d Cir. 2001) (quoting Morris v. Lindau, 196 F.3d 102,

8    110 (2d Cir. 1999)).   Here, the only issue submitted to the

9    jury was causation, namely, whether Defendants-Appellees

10   retaliated against Monz on the basis of his protected

11   speech.

12       Monz served as a volunteer firefighter in the Rocky

13   Point Fire District (the “District”) on-and-off for

14   approximately thirty years.   In or around 2001, Monz



         2
           The district court and the parties operated under the
     belief that the commissioners’ refusal to reinstate Monz as
     a volunteer firefighter qualified as an adverse employment
     action. Thus, the parties did not argue the issue below or
     brief the issue on appeal. We assume, without deciding,
     that a volunteer position is a government benefit for
     purposes of a First Amendment retaliation claim. See
     Gorman-Bakos v. Cornell Co-op Extension of Schenectady
     Cnty., 252 F.3d 545, 551 n.2 (2d Cir. 2001). But we note
     the existence of a recent decision from the New York Court
     of Appeals that may counsel otherwise. M.G.M. Insulation,
     Inc. v. Gardner, 2013 WL 598058 (N.Y. Feb. 19, 2013). In
     M.G.M., the New York Court determined that a volunteer fire
     corporation is not a specified public entity within the
     meaning of the prevailing wage requirement of Labor Law §
     220. Id.
                                   4
1    expressed his dismay with the extent of drinking occurring

2    in the firehouses in the District.    Monz successfully

3    lobbied for changes to the hours volunteer firefighters

4    could consume alcoholic beverages on site.    Not everyone in

5    the District supported the reduced hours, including

6    Defendant-Appellee William Lattman (“Lattman”) and non-party

7    Raymond “Hank” Strong (“Strong”).    As Chief of the fire

8    department however, Lattman did enforce the restricted

9    hours.

10       During the 2002-2003 election season within the

11   District, Monz ran for the position of third assistant chief

12   of the department and Lattman ran against Defendant Ann

13   Logan for one of five commissioner seats.    As the captain of

14   Company No. 1 within the fire department, Monz allowed both

15   candidates to put up campaign posters in his company’s

16   firehouse.   One night, two members of Company No. 2 (to

17   which both Lattman and Strong belonged) defaced Logan’s

18   poster.   Monz was angry about the incident and he argued

19   with then-Assistant Chief Strong to have the two

20   firefighters suspended from participating in the fire

21   department’s social events for six months.    No discipline

22   was meted out.   Monz subsequently lost the election for

23   third assistant chief.


                                   5
1        Shortly thereafter, Monz was unable to devote

2    sufficient time to his job as a volunteer firefighter

3    because his wife and son took ill.   Monz applied for a leave

4    of absence which was denied.   In November 2003, Monz

5    resigned.   Then-Chief Strong noted on Monz’s resignation

6    letter that Monz resigned in “bad standing” because his

7    percentage of participation in fire department events was

8    only 1.9% rather than the requisite 15%.   After observing

9    the one-year waiting period, Monz applied for reinstatement.

10   Although the volunteer firefighters collectively voted to

11   reinstate Monz, his application was denied by the

12   commissioners because the three Defendants-Appellees named

13   herein voted against him.

14       Monz brought this action under Section 1983 claiming

15   that Defendants-Appellees refused to reinstate him because

16   of his protected speech about limiting drinking in the

17   firehouses and the fire department’s general “frat boy”

18   image.   At trial, the jury heard evidence related to both

19   the drinking-hours incident and the campaign-poster

20   incident.   However, as the district court rightly

21   determined, only the former matter involved protected speech

22   by virtue of being on a topic of “public concern.”      See Ross

23   v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012).   Monz’s


                                    6
1    efforts to have the two members of Company No. 2 who defaced

2    the campaign poster disciplined were not constitutionally

3    protected because these expressions were made pursuant to

4    his “official duties” as captain of Company No. 1.     See

5    Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006).     Thus,

6    only the former episode could serve as an appropriate basis

7    for unlawful retaliation – a fact that the jury may not have

8    clearly understood.

9        We agree with the district court that the jury’s

10   verdict that Monz’s speech regarding the drinking hours was

11   a substantial or motivating factor in the commissioners’

12   refusal to reinstate him is not supported by legally

13   sufficient evidence.   While testifying about his decision to

14   push for a social suspension following the campaign-poster

15   incident, Monz explained that he was cautious because he had

16   thought about running for Chief in the future and he

17              knew that being Company 2, it was going
18              to be a problem. The drinking thing’s
19              forgotten about, we are all pals, hanging
20              out, going to Chief Bill [Lattman] and
21              Hank [Strong] invited me to chiefs
22              council meetings, to see what it’s about
23              being a chief, I loved it.
24
25   (JA 51.)

26       In conjunction with the absence of direct evidence that

27   Defendants-Appellees refused to reinstate Monz because of


                                    7
1    his speech regarding drinking in the firehouses, Monz’s low

2    percentage of participation prior to his resignation, and

3    the approximate four-year interlude between the drinking-

4    hours incident and the alleged retaliation, we find that

5    Monz did not present legally sufficient evidence for the

6    jury to find in his favor.

7        For the foregoing reasons, the judgment of the district

8    court is hereby AFFIRMED.

 9
10                                FOR THE COURT:
11                                Catherine O’Hagan Wolfe, Clerk
12
13




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