11-4618
Garcia v. Hartford Police Dep’t
                                  UNITED STATES COURT OF APPEALS

                                       FOR THE SECOND CIRCUIT

                                          _______________

                                          August Term, 2012

                      (Argued: January 9, 2013          Decided: January 28, 2013)

                                         Docket No. 11-4618

                 ________________________________________________________

                                           EDWIN GARCIA,

                                                        Plaintiff-Appellant,

                                                 —v.—

                          HARTFORD POLICE DEPARTMENT, JOSEPH CROUGHWELL,
                           ROBERT CASATI, HPD, DEP. CHIEF, TIMOTHY HOGAN,
                                TIMOTHY PALMER, JAMES BLANCHETTE,

                                                        Defendants-Appellees.

                 ________________________________________________________

Before: KEARSE, KATZMANN, and LOHIER, Circuit Judges.

Plaintiff-Appellant Edwin Garcia appeals from the judgment of the United States District Court
for the District of Connecticut (Thompson, C.J.), granting summary judgment to Defendants-
Appellees on plaintiff’s employment discrimination and First Amendment retaliation claims,
which arise out of Garcia’s employment as a sergeant with the Hartford Police Department. The
district court concluded that Garcia had failed to introduce evidence suggesting that the reasons
given for defendants’ decision not to promote Garcia to lieutenant or for the internal
investigations into Garcia’s conduct were pretextual. The district court further concluded that
when Garcia spoke to the press to respond to Chief Croughwell’s comment that Garcia’s claims
of discrimination against Hispanics by Hartford police officers were overstated he was not
speaking on a matter of public concern, and thus did not fall within the ambit of First
Amendment protection from retaliation. With respect to Garcia’s discrimination claims, we hold
that he has failed to introduce factual evidence that the defendants’ nondiscriminatory reasons
for investigating Garcia and declining to promote him were pretextual or that Garcia’s race or
national origin was a motivating factor in their decisions. With respect to Garcia’s First
Amendment retaliation claim, we hold that the district court erred in concluding that Garcia’s
statements to the press were not on matters of public concern. Nevertheless, we agree with the
district court that defendant Croughwell is protected from suit on the basis of qualified
immunity. Accordingly, the judgment of the district court is AFFIRMED.
_______________

Counsel for Plaintiff-Appellant:               JURI E. TAALMAN (Timothy Brignole, on the brief),
                                               Brignole, Bush & Lewis, LLC, Hartford, CT.

Counsel for Defendants-Appellees:              HELEN APOSTOLIDIS, Storrs, CT.
_______________

PER CURIAM:

       In a matter involving employment discrimination and First Amendment retaliation

claims, Plaintiff-Appellant Edwin Garcia appeals from a September 27, 2011 final judgment of

the United States District Court for the District of Connecticut (Thompson, C.J.), granting

summary judgment to the Defendants-Appellees. Garcia, a former sergeant with the City of

Hartford Police Department (“Hartford PD”), seeks monetary damages under 42 U.S.C. §§ 1981,

1983, and the parallel Connecticut state employment law provisions, claiming that

defendants-appellees wrongfully failed to promote him to lieutenant and instigated several

internal affairs investigations into Garcia's conduct on the basis of his race or national origin.

Garcia also brings a First Amendment retaliation claim against defendant-appellee Joseph

Croughwell, Chief of the Hartford Police Department, claiming that Chief Croughwell retaliated

against Garcia because Garcia spoke to the press about an incident Garcia alleges involved

excessive force by Hartford police officers against a Hispanic citizen. On appeal, Garcia

contends that the district court erred in granting summary judgment to defendants-appellees on

his discrimination claims because the district court failed to take into account the report of Dr.

Leonard Territo, plaintiff's expert on police practices and procedures; failed to consider the


                                                 -2-
evidence in the light most favorable to the plaintiff; and failed to apply the burden-shifting

analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). Garcia also argues that the district court erred in granting summary judgment to

defendant-appellee Chief Croughwell on plaintiff's First Amendment retaliation claim because

the district court incorrectly concluded that, as a matter of law, plaintiff's press conference was

intended to defend his reputation only, and thus did not implicate a matter of public concern.

       Having reviewed the record de novo, we affirm the judgment of the district court. First,

we conclude that Garcia can point to no factual evidence in the record that would allow a jury to

find that the defendants’ proffered nondiscriminatory reasons were pretextual. Second, with

respect to Garcia’s retaliation claim against Chief Croughwell, although we agree with Garcia

that his statement to the press implicated a matter of public concern, we affirm the judgment on

the district court’s alternate ground that Chief Croughwell is protected from liability by qualified

immunity.

I.     Background

       The following description is largely taken from the district court’s thorough recitation of

the factual record and is undisputed unless otherwise indicated. At the time of the alleged

discrimination in 1994, Edwin Garcia was a police officer for the Hartford PD. In November

1990, Garcia was promoted to sergeant, making him one of the first Hispanic officers to reach

the level of sergeant in the Hartford PD. In 1993, Garcia was also elected to the General

Assembly of the State of Connecticut.

       On April 23, 1994, Garcia was present at an incident at the El Coqui Café in Hartford,

Connecticut involving Hartford PD police officers and members of the Hispanic community.


                                                 -3-
Garcia, who was off-duty that evening, was at a restaurant in Hartford with friends, including

Jose Rodriguez. Cesar Cordero, the owner of the El Coqui Café, arrived at the restaurant and

asked Rodriguez to come to the Café to fix his computer. Garcia accompanied Cordero and

Rodriguez to the Café, and the three of them arrived at the Café at approximately 1:15AM. At

2:27AM, after Hartford’s 2AM mandated closing time, Officer Donald Rodrique observed

activity at the Café. He found that the doors to the Café were locked, but that people remained

inside. Rodrique later stated that he intended to give the owner a warning, close the Café, and

send everyone home.

       When Rodrique knocked on the door, Cordero ignored him, and Rodrique called for

backup. Sergeant Richard Kemmett, Officer Ezequiel Laureano, and Officer Feirravanti arrived.

After the officers again knocked on the door to the Café, someone let them inside and told them

that Cordero was in the basement. Laureano proceeded downstairs and found Cordero there with

plaintiff Garcia. Cordero went upstairs with the officers; Garcia stayed downstairs, but was able

to watch and listen to the interactions between Cordero and the officers through the bar’s

surveillance equipment.

       Cordero was placed under arrest for allegedly hindering the officers’ investigation by

dimming the lights to the Café. When Kemmett attempted to place Cordero under arrest,

Cordero struggled with Kemmett and ran towards the basement stairs. When Kemmett gave

chase, Kemmett pushed Cordero down the stairs and the two of them became embroiled in a

scuffle. Rodrique attempted to help Kemmett arrest Cordero, while Laureano kept an unknown

individual from interfering. Garcia did not intervene, and instead placed a call to Chief




                                                -4-
Croughwell, Mayor Michael Peters, and Deputy Mayor Eugenio Caro as he watched the arrest

unfold. According to Garcia, Kemmett was “pummeling” and “pounding” Cordero.

        After the incident, Garcia met with Croughwell, Peters, and Caro, and explained that he

thought that Kemmett used excessive force against Cordero. When the meeting was over,

plaintiff and Chief Croughwell agreed that no information would be given to the press because

the police department would investigate the incident. Someone, however, leaked the incident to

the press, and the local media began running articles about it. One article reported Chief

Croughwell dismissing Garcia’s complaint as “overstated.” On May 4, 1994, Garcia held a press

conference responding to what he deemed to be Chief Croughwell’s attempt to assail his

reputation. An article published shortly thereafter discussed plaintiff’s press conference and how

he accused fellow officers of bias in targeting a Hispanic bar.

        Defendant Blanchette, an investigator with the Internal Affairs Division of the Hartford

PD (“IAD”), investigated the El Coqui incident to determine whether the arrest of Cordero was

lawful, whether Kemmett used excessive force, and whether Garcia acted properly. After the

investigation, Garcia was charged with two violations: (1) undermining the good order,

efficiency and discipline of the department; and (2) failure to take appropriate action concerning

illegal activity, which was communicated to him by letter sent by Chief Croughwell on May 27,

1994.

        Approximately six months later, Garcia was involved in another incident that ultimately

led to disciplinary charges. On November 13, 1994, Karla Krengel, an editor with WFSB

Television, visited the Hartford PD station house. When she entered the building, she saw

Garcia and engaged him in conversation. Garcia asked Krengel about people who worked at the


                                                -5-
television station, and the topic of Brian Garnett, a reporter at WFSB, came up in their

conversation. Garcia said that he did not like Garnett because of a story Garnett wrote about

Garcia before his election. Garcia allegedly told Krengel that “you can tell Brian that if I ever

see him somewhere I’m gonna beat the - - - - out of him.” Krengel was shocked and told Garnett

about the conversation. Garnett filed a complaint against Garcia with IAD on December 23,

1994. The complaint reported the comments Garcia made to Krengel, and also stated that a

WFSB anchorman, Dennis House, told Garnett that Garcia had made a similar statement to

House when he saw Garcia in the apartment building where they both lived.

       One month prior to this incident, in October 1994, the Hartford PD posted a notice to all

sergeants that they had the opportunity to sit for an examination to be promoted to lieutenant.

The department indicated that there were eleven positions available. Garcia took the test, and,

on December 29, 1994, he was told that he had ranked third out of the forty-six sergeants who

took the examination. Garcia’s name was included on a list of thirteen people for Chief

Croughwell to interview and consider for the eleven available lieutenant positions.

       Chief Croughwell interviewed all the candidates, including Garcia, on December 30,

1994. Chief Croughwell did not promote Garcia, and informed him of his decision by letter

dated January 6, 1995. Chief Croughwell’s letter did not give Garcia a reason for denying him

the promotion. Chief Croughwell promoted candidates ranked 1–2 and 4–12 and did not

promote Garcia (who ranked 3rd) and the 13th ranked candidate. Ten out of the eleven

candidates promoted were white.

       On April 6, 1995, after a hearing for which Garcia was represented by counsel, the

hearing officer Garcia selected found him guilty of violating the Hartford PD Code of Conduct


                                                -6-
and recommended that Garcia be demoted from Sergeant to Police Officer. Specifically, the

hearing officer concluded that by not intervening in the arrest of Cordero, either to assist the

officers or to stop any police brutality, and thereby failing to take appropriate action concerning

illegal activity, Garcia violated Article V, Section 22 of the Hartford PD Code of Conduct.

Further, by making statements to the press that “discredit[ed]” the Hartford PD and its officers in

violation of the Hartford PD media policy, the hearing officer concluded that Garcia violated

Article 1, Section 1.00 of the Code of Conduct by undermining the good order, efficiency, and

discipline of the police department.

       On April 10, 1995, Chief Croughwell notified the plaintiff that he concurred with the

hearing officer’s findings, but not the recommended penalty, and instead suspended Garcia for

thirty working days. The Union filed a grievance challenging the suspension, and the penalty

was upheld for just cause by an arbitration panel from the Connecticut State Board of Mediation

and Arbitration. The Union then filed a motion with the Connecticut State Superior Court to

vacate the arbitration award on the grounds, inter alia, that it offended public policy by violating

the First Amendment. The Superior Court denied this motion. On April 24, 1995, Garcia was

additionally charged with “conduct unbecoming of an employee” and “using unnecessary,

violent, abusive or profane language to citizens while on duty” in connection with the comments

he made to Krengel about Garnett on November 13, 1994.

       In May 1995, while Garcia was suspended, the department held a second round of

lieutenant promotions, choosing from officers who had already taken the lieutenant’s exam.

Chief Croughwell neither interviewed Garcia nor notified Garcia that he was being considered




                                                 -7-
for promotion. On May 18, 1995, Chief Croughwell notified Garcia that he had not been

promoted to lieutenant.

        After another formal hearing, on November 28, 1995, Garcia was found guilty of the

violations arising out of the November 13 incident. On December 18, 1995, Chief Croughwell

followed the recommendation of the hearing officer and gave Garcia a written reprimand and

suspended him for forty-five days. The Union filed a grievance challenging the suspension; the

arbitration panel upheld the suspension for just cause. The Union then filed a motion with the

Connecticut State Superior Court to vacate the arbitration award; again, the Connecticut Superior

Court denied the motion. Garcia ultimately resigned from his position with the police

department effective January 3, 1997, after he entered nolo contendere pleas in state-court

prosecutions, for several counts of election law violations and witness tampering.

        Garcia originally commenced the instant action on February 14, 1995. He amended his

complaint on May 21, 1996, suing the Police Department, Chief Croughwell, Robert Casati,

Timothy Hogan, Timothy Palmer, and James Blanchette. The defendants-appellees answered

the amended complaint on September 29, 2010, and moved for summary judgment on October 5,

2010.

        The district court granted defendants-appellees’ motion for summary judgment in its

entirety, by order dated September 26, 2011. With respect to plaintiff’s discrimination claims,

the district court concluded that “there is no genuine issue of material fact as to whether the

plaintiff was discriminated against because of his race,” as “[t]he record demonstrates that

nondiscriminatory reasons existed for refusing to promote the plaintiff.” Specifically, the district

court noted that, at the time of the December 1994 promotions, (1) the plaintiff was awaiting a


                                                 -8-
hearing on the charges arising out of the April 23 incident, (2) the deputy chiefs had

recommended Garcia not be promoted, and (3) it would have been embarrassing to the

department if Garcia were promoted in the face of charges that could later be sustained. By the

time of the May 1995 promotions, Chief Croughwell averred that nothing had changed, other

than the fact that Garcia had been suspended, which the department argued rendered him

ineligible for promotion. With respect to the IAD investigations, the district court concluded that

there existed no evidence suggesting the investigations into Garcia’s conduct were instigated

because of his race or national origin.

       The district court also concluded there were no genuine disputes of material fact that

could sustain Garcia’s First Amendment retaliation claim. The court determined that because

Garcia spoke to the press only after Chief Croughwell had told the media Garcia had

“overstated” his complaint, and because Garcia stated he was attempting to “defend” himself,

“[t]he record demonstrates that the speech was to redress a personal grievance and was never a

matter of public concern,” thus falling outside the First Amendment protection against retaliation

accorded to Garcia as a public employee. In the alternative, the district court also concluded that

qualified immunity would protect Chief Croughwell from liability for the retaliation claim.

       Additionally, the district court granted defendants’ motion for summary judgment on

Garcia’s Monell claim against the City of Hartford and the Hartford PD; his claims of

discrimination pursuant to the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. §

46a-60; and his claim of intentional infliction of emotional distress. Garcia appeals, contending

that the district court erred in dismissing his employment discrimination claims and his First

Amendment retaliation claim.


                                                -9-
II.    Discussion

       “We review a district court’s grant of summary judgment de novo.” Lombard v.

Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir. 2002). In reviewing a summary

judgment decision, we apply “the same standards applied by the district court.” Tepperwien v.

Entergy Nuclear Operations, Inc., 663 F.3d 556, 566 (2d Cir. 2011). Under this standard,

“[s]ummary judgment may be granted only if ‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

In determining whether there is a genuine dispute as to a material fact, we must resolve all

ambiguities and draw all inferences against the moving party. See Donnelly v. Greenburgh Cent.

Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012).

       For a claim of employment discrimination under 42 U.S.C. §§ 1981 and 1983, we apply

the familiar burden-shifting framework set forth by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-03 (1973). Back v. Hastings on Hudson Union Free Sch.

Dist., 365 F.3d 107, 123 (2d Cir. 2004).

       [A] plaintiff must first establish a prima facie case of discrimination. The burden then
       shifts to the employer to articulate a legitimate, nondiscriminatory reason for its
       employment action. If the employer meets this burden, the presumption of intentional
       discrimination disappears, but the plaintiff can still prove disparate treatment by, for
       instance, offering evidence demonstrating that the employer’s explanation is pretextual.

Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003) (citation omitted). When the defendant

offers a legitimate, nondiscriminatory reason for the adverse employment action, the burden is

on the plaintiff to point to evidence that reasonably supports a finding of prohibited

discrimination; otherwise, the defendant is entitled to summary judgment. Farias v.

Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). “Of course, to defeat summary judgment


                                                -10-
. . . the plaintiff is not required to show that the employer’s proffered reasons were false or

played no role in the employment decision, but only that they were not the only reasons and that

the prohibited factor was at least one of the motivating factors.” Back, 365 F.3d at 123 (internal

quotation marks and brackets omitted).

       Garcia contends that defendants discriminated against him on account of his race or

national origin in two ways: (1) by refusing to promote him to lieutenant; and (2) by conducting

frivolous and retaliatory investigations into his conduct. We are not persuaded on either ground.

We begin with Chief Croughwell’s decisions not to promote Garcia. Defendants’ proffered

nondiscriminatory reason for these actions is that because Garcia was awaiting a hearing on the

charges arising out of the April 23 incident at the El Coqui Café at the time of the first round of

lieutenant promotions in December 1994, and because Chief Croughwell concluded that it would

have been embarrassing to the department if Garcia was promoted in the face of charges that

could later be (and were) sustained, Chief Croughwell decided that it was unwise to promote

Garcia at that time. Later, by the time of the May 1995 promotions, Garcia had been suspended

due to the El Coqui incident, which, according to the defendants, rendered him ineligible for

promotion.

       Plaintiff points to the expert report of Dr. Leonard Territo, which he argues creates a

genuine dispute as to whether the defendants’ proffered reasons were pretextual, and which he

asserts that the district court wrongly overlooked. Dr. Territo, a professor of criminology and

former police officer, offered his opinions on both Garcia’s conduct and the conduct and

procedures of the defendants. A submission in opposition to (or in support of) summary

judgment need be considered only to the extent that it would have been admissible at trial. See,


                                                -11-
e.g., Fed. R. Civ. P. 56(e); see also Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d

736, 746 (2d Cir. 1998) (we review summary-judgment-related evidence rulings for “manifest

error”). We are skeptical of the admissibility of many of Territo’s conclusions, which frequently

appear to be speculative or conclusory, and would therefore be inappropriate for consideration on

summary judgment. See Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290,

311 (2d Cir. 2008). Given that Garcia placed such heavy reliance on Territo’s report in opposing

summary judgment, however, it would have been better for the district court to state its reasons

for concluding that this report did not impede summary judgment. Nevertheless, having

reviewed Dr. Territo’s report, we conclude that the report does not add any facts to the record

that create a genuine dispute as to any material fact. See Raskin v. Wyatt Co., 125 F.3d 55, 66

(2d Cir. 1997) (“[A]n expert’s report is not a talisman against summary judgment.”); Knight v.

City of New York, 303 F. Supp. 2d 485, 498 (S.D.N.Y. 2004) (holding that because a “report is

based largely on the expert’s interpretation of the factual record . . . even if admitted into

evidence, [it] would not alter the factual record sufficiently to enable a reasonable juror to find

[retaliation]”).

        Garcia argues that the district court erred in crediting Chief Croughwell’s testimony that

he could not promote Garcia in 1995 because Garcia was suspended at the time, which was

corroborated by the affidavit of Joyce Chin, the former Principal Personnel Analyst for the City

of Hartford Personnel Department. Territo’s report states that, to the contrary, “in a similarly

situated case, Chief Croughwell promoted Sgt. Cherniak to the rank of lieutenant even as he was

suspended and under investigation for forging Court documents.” However, Garcia’s argument

suffers from a serious flaw: Territo disavowed this recitation of the facts at his deposition.



                                                 -12-
Garcia does not acknowledge in his briefing that Territo retracted the conclusion upon which he

so heavily relies, coming dangerously close to misrepresenting the record to this panel. Neither

Territo’s opinion nor any other evidence in the record suggests that Chief Croughwell’s reasons

for not promoting Garcia were false or that Chief Croughwell based his decision in part on

Garcia’s race or national origin.1 To the contrary, as the district court pointed out, one of the

sergeants promoted to lieutenant over Garcia was also Hispanic.

       We next turn to the investigations conducted by the IAD into Garcia’s conduct. Here,

defendants submitted evidence showing that the IAD investigations were prompted by

allegations of misconduct against Garcia. Out of these complaints, Garcia was charged in

connection with two incidents: the El Coqui incident and the incident where he made threats

regarding Brian Garnett to Garnett’s colleague, Karla Krengel. Both charges against Garcia

were ultimately substantiated. They were fully litigated as to their merits through disciplinary

hearings, appeals to arbitration panels, and appeals to the Connecticut Superior Court.

       Territo’s conclusions about the propriety of the IAD investigations into Garcia’s conduct,

to the extent those conclusions are admissible or reducible to admissible evidence, do not alter

the factual record in any meaningful respect. His analysis of the investigation into the El Coqui

incident was based primarily on conclusory and speculative assertions in Garcia’s affidavit,

assertions that the district court correctly rejected as insufficient to create a genuine dispute as to

any material fact given the contrary evidence in the record. See Wyler v. United States, 725 F.2d


       1
         At oral argument, plaintiff’s counsel suggested that Garcia’s 30-day suspension, which
began April 17, 1995, had terminated the day before Chief Croughwell notified Garcia that he
was not being promoted on May 18, 1995. The 30-day suspension, however, was for 30 working
days, not calendar days and, as Garcia was notified, was to “continue to and through May 29,
1995.”

                                                 -13-
156, 160 (2d Cir. 1983). For example, Garcia stated in his affidavit and deposition that

defendant Blanchette was motivated by his “color or national origin” when he attempted to have

Garcia prosecuted for incidents where the investigations returned no proof. But, as the district

court noted, there was no evidence to support the contention that Blanchette attempted to

prosecute Garcia because of his race or national origin. To the contrary, the evidence shows

simply that Blanchette investigated complaints against Garcia that were referred to him. Indeed,

the record reflects that on at least one occasion, Blanchette found the allegation against Garcia to

be without substantive merit and recommended that the matter be closed.

       Additionally, some of Territo’s conclusions are directly contradicted by the record. For

example, in arguing that Garcia was unfairly punished for not intervening in the El Coqui

incident, Garcia contends that the district court ignored that Officer Laureano was also present

and, according to Territo, “did not feel the need to intervene and assist.” J. App’x 483. This is

an incorrect characterization of Laureano’s description of the incident. Laureano testified at

Garcia’s disciplinary hearing that he did not assist in the arrest because he was busy preventing

an unknown male from interfering, and that “it would have been helpful if there were more

officers present because Lieutenant Kemmett was having difficulty [effectuating the arrest].” J.

App’x 356.2

       Similarly, although Territo concludes that the evidence shows there was no investigation

into Kemmett’s use of excessive force (without citation to the record), the record reflects that

defendant Blanchette investigated the El Coqui incident in full, including whether Kemmett used

excessive force. These are not genuine disputes. Territo’s report adds no facts to the record that

suggest the defendants’ proffered reasons for investigating Garcia were false.

       2
           We note that Laureano’s version of the events was disputed by Garcia.

                                                -14-
        Even accepting arguendo that all of Garcia’s and Territo’s conclusory assertions were

credited, Garcia still fails to point to evidence suggesting that discriminatory animus was a

motivating factor behind the investigations. Indeed, Territo himself speculated that someone in

the IAD was out to “get” Garcia because he broke the police code of silence by speaking to the

press, not because of his race or national origin. This does not show “that discrimination was the

real reason” for the investigations, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993), nor

does it even show that discriminatory animus was at least one of the “motivating factors” behind

defendants’ actions, Back, 365 F.3d at 123 (internal quotation marks omitted). Without any

evidence that could allow a reasonable jury to find that defendants’ proffered explanations for

either the refusal to promote or the IAD investigations were pretextual, Garcia’s discrimination

claims fail.

        Turning to Garcia’s First Amendment retaliation claim against Chief Croughwell, we

agree with Garcia that his statements to the press were on a matter of “public concern” and thus

protected by the First Amendment. To prove that a public employer unlawfully retaliated

against an employee for their speech in violation of the First Amendment, the plaintiff must

show that (1) the speech at issue was “made as a citizen on matters of public concern rather than

as an employee on matters of personal interest,” Grillo v. N.Y.C. Transit Auth., 291 F. 3d 231,

235 (2d Cir. 2002) (per curiam); (2) he or she suffered an adverse employment action, Diesel v.

Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000); and (3) “the speech was at least a

substantial or motivating factor in the [adverse employment action],” Sheppard v. Beerman, 317

F.3d 351, 355 (2d Cir. 2003) (internal quotation marks omitted). “Whether an employee’s

speech addresses a matter of public concern is a question of law for the court to decide, taking


                                               -15-
into account the content, form, and context of a given statement as revealed by the whole

record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999).

       Viewing the facts in the light most favorable to Garcia, the record shows that: (1) Garcia

informed Chief Croughwell, the Mayor, and the Deputy Mayor that he thought Hartford police

officers were discriminating against Hispanics and that Kemmett used excessive force against

Cordero at the El Coqui Café; (2) Garcia and Chief Croughwell agreed that the matter should be

handled internally and not through the media; (3) someone leaked the allegedly discriminatory

incidents to the media; (4) Chief Croughwell subsequently criticized Garcia’s complaints of

discrimination as “overstated”; and (5) Garcia held a press conference to rebut Chief

Croughwell. The district court erred in concluding that because Garcia spoke to the press to

protect his reputation, his speech was not protected by the First Amendment. Whether or not

Garcia held the press conference solely out of a desire to protect his reputation, he spoke about a

matter of public concern, namely, whether the police department was discriminating against

Hispanics. See Connick v. Myers, 461 U.S. 138, 148 n.8 (1983) (noting that the “right to protest

racial discrimination [is] a matter inherently of public concern”).

       Defendants attempt to analogize this case to our decision in Ezekwo v. N.Y.C. Health &

Hospitals Corp., 940 F.2d 775 (2d Cir. 1991). This case is far afield from Ezekwo. In Ezekwo,

we held that statements made by a medical resident airing her “personal dissatisfaction” with the

competency of her residency program director were not brought under the ambit of the First

Amendment by “the mere fact that one or two of [her] comments could be construed broadly to

implicate matters of public concern.” Id. at 777, 781. Here, by contrast, the core of Garcia’s

dissatisfaction was with the Department’s handling of allegations of discrimination against

Hispanics.

                                                -16-
        To hold that these statements were not a matter of public concern would unreasonably

allow public employers to innoculate themselves from First Amendment retaliation claims

simply by arguing that the employee spoke about an issue of public concern for “personal”

reasons. As a matter of law, Garcia’s speech “relat[es] to [a] matter of political, social, or other

concern to the community.” Connick, 461 U.S. at 146.

       Nevertheless, we affirm the judgment of the district court on the district court’s

alternative ground of qualified immunity. See Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir.

1990) (holding we are “free to affirm an appealed decision on any ground which finds support in

the record, regardless of the ground upon which the trial court relied”). We first note that Garcia

did not raise the issue of qualified immunity in his opening brief and has thus forfeited any

objection to the district court’s alternative ground. See JP Morgan Chase Bank v. Altos Hornos

de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made in an

appellant’s opening brief are waived even if the appellant pursued those arguments in the district

court or raised them in a reply brief.”). “Of course, we have discretion to excuse such an error if

manifest injustice would otherwise result.” Id.

       Here, there is no manifest injustice that would result in affirming the judgment. Garcia

argues that the record demonstrates that both Chief Croughwell’s decision not to promote him

and the IAD investigations were retaliation for Garcia’s decision to speak to the press, and that

he has therefore shown malice or reckless indifference to his federally protected rights sufficient

to overcome qualified immunity. See Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999).

We disagree, for substantially the same reasons discussed in our evaluation of Garcia’s

discrimination claims. The record is devoid of any factual evidence suggesting that either Chief


                                                -17-
Croughwell’s decision not to promote Garcia or the IAD investigations was retaliatory in nature.

To the contrary, defendants’ unrebutted evidence shows legitimate justifications for both.3

Accordingly, there is no need for us to entertain the forfeited argument in the interests of justice.

III.   Conclusion

       Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.




       3
          The hearing officer who conducted Garcia’s disciplinary hearing for the El Coqui
incident found that “Garcia’s statements to the press were totally inappropriate and violated the
media policy of the Hartford Police Department.” Chief Croughwell concurred with the findings
and imposed a 30-day suspension. This suspension (which was fully litigated as to just cause in
the Connecticut state courts) fails to show that Garcia’s comments to the press were a motivating
factor in Chief Croughwell’s decision not to promote Garcia. At the time he made that decision,
Chief Croughwell explicitly told Garcia that he was concerned about his various pending
disciplinary charges and investigations, including the pending charges relating to his failure to
intervene in the El Coqui incident and pending investigations into the threats made against
Garnett and potential violations of Connecticut election law, none of which involved an alleged
exercise of Garcia’s free speech rights. Specifically, Chief Croughwell noted that it would
“embarrass” the Hartford PD if Garcia was promoted and those disciplinary charges were
substantiated. Accordingly, there is nothing that suggests that it was not “objectively
reasonable” for Chief Croughwell to believe that he was acting lawfully by exercising his
discretion not to promote Garcia on these grounds. See Gubitosi v. Kapica, 154 F.3d 30, 33 (2d
Cir. 1998) (reversing denial of qualified immunity on summary judgment for police chief
accused of retaliation in violation of First Amendment where plaintiff failed to identify evidence
in the record suggesting police chief fired her for engaging in protected speech, as opposed to for
her disciplinary violations).

                                                 -18-
