     14-3698
     Delano v. City of Buffalo

                          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 17th day of December, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL
 8                GUIDO CALABRESI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DENNIS DELANO,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-3698
16
17       CITY OF BUFFALO, BUFFALO POLICE
18       DEPARTMENT, H. MCCARTHY GIPSON,
19       individually and in his former
20       capacity as police commissioner of the
21       City of Buffalo, DANIEL DERENDA,
22       individually and in his capacity as
23       deputy police commissioner of the City
24       of Buffalo and interim police
25       commissioner of the City of Buffalo,
26       DENNIS RICHARDS, individually and in
27       his capacity as chief of detectives of
28       the Buffalo Police Department, BYRON

                                                  1
 1   BROWN, individually and in his
 2   capacity as mayor of the City of
 3   Buffalo,
 4            Defendants-Appellees.
 5   - - - - - - - - - - - - - - - - - - - -X
 6
 7   FOR APPELLANT:             STEVEN M. COHEN (with Diane R.
 8                              Tiveron on the brief),
 9                              HoganWillig, PLLC, Amherst, New
10                              York.
11
12   FOR APPELLEES:             JOSEPH SCOTT BROWN (with Adam
13                              Walter Perry and Michael Brian
14                              Risman on the brief), Hodgson
15                              Russ LLP, Buffalo, New York, for
16                              Defendants-Appellees City of
17                              Buffalo, Buffalo Police
18                              Department, Daniel Derenda,
19                              Dennis Richards, and Byron
20                              Brown.
21
22                              PAUL A. WOODARD (with Terrence
23                              M. Connors and James W. Grable,
24                              Jr., on the brief), Connors &
25                              Vilardo, LLP, Buffalo, New York,
26                              for Defendant-Appellee H.
27                              McCarthy Gipson.
28
29        Appeal from a judgment of the United States District
30   Court for the Western District of New York (Skretny, J.).
31
32        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
33   AND DECREED that the judgment of the district court be
34   AFFIRMED.
35
36        Dennis Delano, a decorated Buffalo police officer,
37   appeals from the judgment of the United States District
38   Court for the Western District of New York (Skretny, J.),
39   dismissing his First Amendment retaliation complaint against
40   the City of Buffalo, the Buffalo Police Department, Police
41   Commissioner H. McCarthy Gipson, Mayor Byron Brown, and
42   others (collectively, “defendants”). We assume the parties’
43   familiarity with the underlying facts, the procedural
44   history, and the issues presented for review.
45


                                  2
 1        Delano contends that the district court improperly
 2   granted summary judgment on his First Amendment retaliation
 3   claim.1   We agree with the district court that Delano’s
 4   speech was protected because he was speaking as a citizen on
 5   a matter of public concern. See Sousa v. Roque, 578 F.3d
 6   164, 170 (2d Cir. 2009) (citing Garcetti v. Ceballos, 547
 7   U.S. 410, 418 (2006)). And there is no dispute that
 8   Delano’s 60-day suspension was an adverse action and that it
 9   was motivated at least in part by Delano’s protected speech.
10   See Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d
11   Cir. 2006). Since Delano does not appeal the dismissal of
12   claims against the other individual defendants (on the
13   ground they were not “personally involved”), and since
14   plaintiff has abandoned his claims against the City of
15   Buffalo and the Buffalo Police Department, Gipson is the
16   remaining defendant. So the decisive question is whether
17   Gipson had “an adequate justification for treating [Delano]
18   differently from any other member of the general public”
19   based on the government’s needs as an employer. See
20   Garcetti, 547 U.S. at 418.
21
22        The defendant has “the burden to show that the
23   employee’s activity is disruptive to the internal operations
24   of the governmental unit in question.” Melzer v. Bd. of
25   Educ. Of City Sch. Dist. Of City of N.Y., 336 F.3d 185, 197
26   (2d Cir. 2003). An adverse employment action will be upheld
27   if “(1) the employer's prediction of disruption is
28   reasonable; (2) the potential disruptiveness is enough to
29   outweigh the value of the speech; and (3) the employer took
30   action against the employee based on this disruption and not
31   in retaliation for the speech.” Locurto v. Giuliani, 447
32   F.3d 159, 172-73 (2d Cir. 2006). “The disruption must be
33   significant enough so that it ‘impairs discipline by
34   superiors or harmony among co-workers, has a detrimental
35   impact on close working relationships . . . or impedes the
36   performance of the speaker's duties or interferes with the
37   regular operation of the enterprise.’” Melzer, 336 F.3d at
38   197 (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987).
39   The balancing test is “a process that looks at all the
40   circumstances in a given situation and determines which
41   interest weighs more heavily.” Melzer, 336 F.3d at 197.
42


         1
              Delano does not appeal the district court’s ruling
     that defendants were entitled to summary judgment on his
     breach of contract claim.
                                  3
 1        Here we have little trouble deciding that it was
 2   reasonable for defendants to predict that Delano’s conduct
 3   would be disruptive. Delano violated direct orders from
 4   superiors and other rules and regulations. He was ordered
 5   not to speak to the media or to investigate the Girard case.
 6   Yet he continued to conduct an independent investigation
 7   outside his regularly assigned duties, and he spoke to the
 8   media, supplying departmental photographs and videos to the
 9   press in violation of regulations. As a result, defendants
10   were reasonable in concluding that the disruption had or
11   could have had “a detrimental impact on close working
12   relationships,” “imped[ed] the performance” of Delano’s
13   duties, or “interfere[d] with the regular operation of the”
14   police department. See Rankin, 483 U.S. at 388.
15
16        The value in Delano’s speech is admittedly strong. He
17   spoke out about what he believes is an injustice in the
18   investigation of what may have been the murder of a young
19   girl. But the defendant’s interest is stronger. Gipson had
20   his own duty to ensure that he maintained a “significant
21   degree of control over [his] employees’ words and actions;
22   without it, there would be little chance for the efficient
23   provision of public services.” Garcetti, 547 U.S. at 418;
24   see also Sacha v. Sedita, 543 F. App'x 115, 116 (2d Cir.
25   2013) (“Though the public's interest in the subject of
26   [plaintiff’s] speech is significant, it is not significant
27   enough to overcome the systemic disruption to the Erie
28   County District Attorney’s Office that First Amendment
29   protection for speech such as [plaintiff’s] has the
30   potential to cause.”). Accordingly, we affirm the district
31   court’s grant of summary judgment.
32
33        For the foregoing reasons, and finding no merit in
34   Delano’s other arguments, we hereby AFFIRM the judgment of
35   the district court.
36
37                              FOR THE COURT:
38                              CATHERINE O’HAGAN WOLFE, CLERK
39




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