    17-212-cv
    Kiernan v. Town of Southampton

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 17th day of May, two thousand eighteen.

    PRESENT: JOHN M. WALKER, JR.,
             DENNIS JACOBS,
                              Circuit Judges,
             MICHAEL P. SHEA,*


                                     District Judge.

    - - - - - - - - - - - - - - - - - - - -X
    JAMES KIERNAN,
               Plaintiff-Appellant,

                 -v.-                                          17-212-cv

    TOWN OF SOUTHAMPTON and WILLIAM WILSON,
    individually, and as former Police
    Chief of the Town of Southampton,

                 Defendants-Appellees,

    TOWN OF SOUTHAMPTON POLICE DEPARTMENT,
               Defendant.

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    * Judge Michael P. Shea of the United States District Court
    for the District of Connecticut, sitting by designation.
                                              1
FOR APPELLANT:             Jason L. Abelove, Esq., Garden
                           City, N.Y.

FOR APPELLEES:             Brian S. Sokoloff, Leo Dorfman,
                           Sokoloff Stern LLP for
                           Defendant-Appellee William
                           Wilson, Carle Place, N.Y.

                           Cynthia Ann Augello, Cullen and
                           Dykman LLP for Defendant-
                           Appellee Town of Southampton,
                           Garden City, N.Y.

     Appeal from the judgment of the United States District
Court for the Eastern District of New York (Feuerstein,
J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court is
AFFIRMED IN PART, and in part VACATED AND REMANDED.

     James Kiernan appeals the judgment of the United States
District Court for the Eastern District of New York
dismissing on summary judgment his First Amendment
retaliation claim against the Town of Southampton (the
“Town”) and its former Chief of Police, William Wilson.
Kiernan alleges that Wilson mounted a campaign to damage
his career as retaliation for Kiernan’s refusal to advance
Wilson’s political and policy agenda at the Southampton
Town Police Department (the “Department”). We assume the
parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     Kiernan is a police lieutenant with the Department and
an active member of Southampton’s Republican Party who
recently served several terms as Party Committeeman. He
was approached in 2011 by Wilson to discuss Wilson’s
candidacy for Chief of Police. Kiernan declined to offer
support, expressing preference for promotion from within
the department. After his appointment as Chief of Police
in May 2011, Wilson solicited Kiernan’s assistance in his
efforts to reform the Department and influence the Board’s
hiring and promotion decisions. App’x at 517-18.
Specifically, it is proffered that between May 2011 and
                             2
February 2012, Wilson pressured Kiernan to sway reluctant
Republicans on the Town Board, and warned of “consequences”
if Kiernan refused. App’x at 518-19, 521, 657. Kiernan
also suggests that Wilson conditioned Kiernan’s promotion
to lieutenant (and implicitly his retention of the rank
beyond the six-month probationary period) on progress
toward Wilson’s reorganization plan. App’x at 519.

     Between December 2011 and February 2012, Wilson
initiated investigations into Kiernan’s job performance,
specifically Wilson’s stated concerns about Kiernan’s
supervision of the Street Crimes Unit (“SCU”) and the
purported mishandling of a situation involving an officer
suffering from substance abuse. In Kiernan’s view, these
investigations were prompted by Wilson’s disappointment in
a February 2012 promotion decision made by the Town Board,
which Wilson attributed to a personal betrayal.2 These
investigations led to 32 departmental charges lodged by
Wilson against Kiernan. Wilson also drafted three felony
complaints and a Misdemeanor Information against Kiernan
for theft of time from the Department, although the arrest
papers were never served.

     In the spring of 2012, Wilson wrote letters to the Town
Board recommending it demote Kiernan to sergeant. On May
4, 2012, in response to impending disciplinary charges
against Kiernan, the Town Board voted to suspend him
without pay. He remained suspended for six months.
Kiernan ultimately accepted responsibility for four of the
disciplinary charges related to personnel management at the
SCU; the remaining 28 were dropped. Kiernan was permitted
to return to work at the rank of lieutenant, but Wilson
curtailed his responsibilities and reduced his authority
within the Department, which another officer characterized
as a career “setback.” App’x at 685, 838. Wilson resigned
from the Department in November 2012.



2 Because Kiernan failed to object to the Magistrate Judge’s
recommendation that his claim based on the investigation
and charges as adverse action be dismissed, the argument
has been waived for the purposes of this appeal. See Mario
v. P&C Food Mkts, Inc., 313 F.3d 758, 766 (2d Cir. 2002).
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     Kiernan brought a complaint against Wilson, the Town,
and the Department under 42 U.S.C. §§ 1983, 1985 and 1986,
alleging a deprivation of First and Fourteenth Amendment
rights on the theory that Wilson had campaigned to end
Kiernan’s career in reprisal for Kiernan’s non-support of
Wilson’s candidacy and agenda. A motion to dismiss was
granted in part. After discovery on the remaining Section
1983 claims against Wilson and the Town, summary judgment
was granted dismissing all remaining claims on the basis
that Kiernan suffered no cognizable adverse outcome from
the attempted demotion and arrest, and that in any event
there was no causal connection between the purported
adverse action and protected speech. The claims against
the Town were dismissed because Kiernan had shown no policy
or custom to support municipal liability.

     We review de novo the grant of summary judgment,
“resolv[ing] all ambiguities and draw[ing] all permissible
factual inferences in favor of the non-moving party.”
Wright v. N.Y. State Dep’t of Corr. & Cmty. Supervision,
831 F.3d 64, 71-72 (2d Cir. 2016) (internal quotation marks
and citation omitted). Summary judgment should be granted
“only if the moving party shows that there is no genuine
dispute as to any material fact.” Id. at 72 (citing Fed.
R. Civ. P. 56(a)). We review in turn Kiernan’s claims
against the Appellees Wilson and the Town.

     To establish a First Amendment retaliation claim, a
public employee must prove: (1) his speech or conduct was
protected by the First Amendment; (2) the defendant took an
adverse action against him; and (3) there was a causal
connection between this adverse action and the protected
speech. Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d
267, 272 (2d Cir. 2011).

First Amendment Speech

     “[A] public employee does not relinquish First
Amendment rights to comment on matters of public interest
by virtue of government employment.” Connick v. Myers, 461
U.S. 138, 140 (1983) (citation omitted). “A court conducts
a two-step inquiry to determine whether a public employee’s
speech is protected: The first requires determining whether
the employee spoke as a citizen on a matter of public
                             4
concern.” Matthews v. City of New York,    779 F.3d 167, 172
(2d Cir. 2015) (internal quotation marks   omitted). “This
step one inquiry in turn encompasses two   separate
subquestions: (1) whether the subject of   the employee’s
speech was a matter of public concern[;]   and (2) whether
the employee spoke ‘as a citizen’ rather   than solely as an
employee.” Id. (internal quotation mark    and citation
omitted).

     Speech on “any matter of political, social, or other
concern to the community” by a public employee may be
protected by the First Amendment. Connick, 461 U.S. at
146. In deciding if speech addresses a matter of public
concern, we consider “whether the speech was calculated to
redress personal grievances or whether it had a broader
public purpose.” Singer v. Ferro, 711 F.3d 334, 339 (2d
Cir. 2013) (citation omitted).

     The conduct at issue is Kiernan’s refusal to exercise
his supposed political influence and advocate Wilson’s
reorganization plan for the Department. “[T]he right of
freedom of thought protected by the First Amendment ...
includes both the right to speak freely and the right to
refrain from speaking at all.” Wooley v. Maynard, 430 U.S.
705, 714 (1977). Kiernan claims he acted on his views
concerning the Department’s operation and policies,
including those governing promotion, selection, and forced
retirement of senior officers, which are issues of
municipal law enforcement policy that generally rise to the
level of public concern. See Morris v. Lindau, 196 F.3d
102, 111 (2d Cir. 1999) (holding that comments by police
officers on department policy issues including “police
staffing, equipment shortages and related budgetary matters
quite plainly involve matters of public concern” and thus
“enjoy a constitutionally protected status”); Piesco v.
City of New York, Dep't of Pers., 933 F.2d 1149, 1157 (2d
Cir. 1991), abrogation on other grounds recognized by Cobb
v. Pozzi, 363 F.3d 89 (2d Cir. 2004).

     “[W]e ask two questions to determine whether a public
employee speaks as a citizen: (A) did the speech fall
outside of the employee’s ‘official responsibilities,’ and
(B) does a civilian analogue exist?” Matthews, 779 F.3d at


                             5
173 (citing Weintraub v. Bd. of Educ. of City Sch. Dist. of
City of. N.Y., 593 F.3d 196, 203-04 (2d Cir. 2010)).

     It is not argued that communicating with the Town Board
on policy issues was part of Kiernan’s job description as a
police sergeant or lieutenant. See Matthews, 779 F.3d at
174. Rather, Kiernan was solicited as a private citizen to
influence individuals in his political network. A civilian
analogue therefore exists for Kiernan’s protected act.
Jackler v. Byrne, 658 F.3d 225, 238, 241 (2d Cir. 2011).
Kiernan meets the prima facie requirement for protected
conduct under the First Amendment.

Adverse Employment Action

      “In the context of a First Amendment retaliation claim
... only retaliatory conduct that would deter a similarly
situated individual of ordinary firmness from exercising
his or her constitutional rights constitutes an adverse
action.” Zelnik v. Fashion Inst. of Tech., 464 F.3d 217,
225-26 (2d Cir. 2006) (internal quotations marks,
alterations and citations omitted). “Adverse employment
actions include discharge, refusal to hire, refusal to
promote, demotion, reduction in pay, and reprimand.”
Morris, 196 F.3d at 110 (citing Kaluczky v. City of White
Plains, 57 F.3d 202, 208 (2d Cir. 1995)). “[W]hether an
undesirable employment action qualifies as being ‘adverse’
is a heavily fact-specific, contextual determination.”
Hoyt v. Andreucci, 433 F.3d 320, 328 (2d Cir. 2006).

     The district court determined that Kiernan “did not
suffer an adverse action as a result of Wilson’s attempts
to have him demoted or arrested, as he was never, in fact,
demoted from the lieutenant position or arrested.” Kiernan
v. Town of Southampton, No. 14CV1831SJFAKT, 2017 WL
5495806, at *27 (E.D.N.Y. Jan. 9, 2017). However, there is
no “exhaustive” list of retaliatory conduct, and “[t]his
Court has never held that a public employee plaintiff
alleging retaliation in violation of the First Amendment
must demonstrate a material change in employment terms or
conditions.” Zelnik, 464 F.3d at 226-27.

     A plaintiff may suffer adverse employment action even
without “dismissal, reduction in pay, or demotion in rank.”
                             6
Morris, 196 F.3d at 110. “[L]esser actions may also be
considered adverse employment actions” such as a negative
job evaluation. Zelnik, 464 F.3d at 226; see Bernheim v.
Litt, 79 F.3d 318, 327 (2d Cir. 1996) (Jacobs, concurring);
Brown v. Office of State Comptroller, 211 F. Supp. 3d 455,
463-64 (D. Conn. 2016). Curtailment of job
responsibilities may also be adverse. See Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 70-71 (2006).

     Wilson’s alleged retaliatory conduct materially
surpassed empty threats, see Tepperwien v. Entergy Nuclear
Operations, Inc., 663 F.3d 556, 568, 571 (2d Cir. 2011);
Wilson followed through on those threats by drafting
criminal complaints against Kiernan and dispatching a
negative recommendation to the Town Board, actions which
may have resulted in substantial damage to Kiernan’s
career. A reasonable juror could find that the prospect of
the adverse consequences Kiernan experienced would deter an
individual of ordinary firmness from the exercise of
constitutional rights. Drawing all factual inferences in
favor of Kiernan, there are material factual disputes as to
whether the attempted demotion and arrest constitute
adverse action for the purposes of First Amendment
retaliation.

Causation

     “To demonstrate a causal connection a plaintiff must
show that the protected speech [or conduct] was a
substantial motivating factor in the adverse [] action.”
Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir.
2015) (internal quotation marks omitted). “Plaintiffs may
not rely on conclusory assertions of retaliatory motive,
but must offer instead some tangible proof to demonstrate
that their version of what occurred was not imaginary.”
Morris, 196 F.3d at 111. A causal connection may be
established either “indirectly by showing that the
protected activity was followed closely by discriminatory
treatment, or through other evidence such as disparate
treatment of fellow employees who engaged in similar
conduct, or directly through evidence of retaliatory animus
directed against a plaintiff by the defendant.” DeCintio
v. Westchester Cty Med. Ctr., 821 F.2d 111, 115 (2d Cir.
1987) (citations omitted) (emphasis in original). A
                             7
defendant can rebut a prima facie showing of causal
connection by demonstrating that the adverse action would
have been taken “even in the absence of the protected
conduct.” Mount Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977); DeCintio, 821 F.2d at 115.

     Kiernan argues that retaliation was a substantial
motivating factor in Wilson’s efforts to jeopardize
Kiernan’s career and freedom. The Appellees respond that
there is no direct evidence of retaliatory animus, and that
the alleged adverse acts followed too long after the
claimed protected speech to allow for an inference of a
causal nexus. Wilson also defends his attempts to demote
and arrest his subordinate as adherence to Department
procedures, and argues that the sole cause of any alleged
adverse consequence was Kiernan’s misconduct.

     The record reveals some direct evidence of retaliatory
animus. Deposition testimony from Kiernan and other
members of the Southampton Police Department and Town Board
suggests Wilson’s conduct may have exceeded his mandate and
was influenced by improper motivation. App’x at 518-19
(Kiernan’s affidavit describing statements by Wilson); 645-
47 (testimony of Board Member Christopher Nuzzi), 657
(statement of John Sideratos), 665, 690 (testimony of
Officer Robert Pearce, including that Wilson’s actions were
“out of bounds”). The evidence of the attempted arrest
also suggests disparate treatment compared to other police
officers who violated the Department’s timekeeping
practices. Felony charges were contemplated (and drafted)
to discipline conduct that multiple witnesses have
acknowledged was widespread and never seriously penalized.
See DeCintio, 821 F.2d at 115; Sumner v. U.S. Postal Serv.,
899 F.2d 203, 209-11 (2d Cir. 1998) (finding constitutional
deprivation when an employee was fired for a common
infraction that had never before resulted in a firing or
threat of firing).

     We need not decide whether this direct evidence of
retaliatory motive would alone suffice. Here, the
proximity in time between the protected speech and the
adverse action supports an inference of causation. See
Smith, 776 F.3d at 118 (“A plaintiff may establish
causation ... indirectly through a showing that the
                             8
protected activity was followed closely by the adverse
action.”); DeCintio, 821 F.2d at 115; see also Taitt v.
Chemical Bank, 849 F.2d 775, 777-78 (2d Cir. 1988) (no
“smoking gun” direct evidence of animus required at summary
judgment stage). “No bright line defines the outer limits
beyond which a temporal relationship is too attenuated to
establish a causal relationship,” but a causal inference
may be drawn when the speech and adverse action occur
within a five-month period. Cioffi v. Averill Park Cent.
Sch. Dist. Bd. of Educ., 444 F.3d 158, 168 (2d Cir. 2006)
(internal quotation marks and citation omitted) (holding
that a three-month period is not “too long for any
inference of retaliatory motive and causation to be
drawn”).

     In gauging proximity, the district court focused on
Wilson and Kiernan’s interactions prior to Wilson’s
appointment as Chief of Police. Appellees likewise posit
that Kiernan’s protected acts “could only ha[ve] taken
place before or at the time Wilson was appointed Chief in
early May 2011,” Brief of Appellee William Wilson (“Wilson
Br.”) at 41. But Kiernan’s refusal to speak on Wilson’s
behalf was arguably continuous through the fall of 2011.
The chronology between Kiernan’s latest acts of protected
speech and his attempted arrest and demotion is not
entirely clear; but drawing all reasonable inferences in
Kiernan’s favor (which requires crediting his accounting of
his interactions with Wilson), the protected speech
occurred at least as recently as November 2011--within
several months of the onset of adverse employment
consequences. See App’x at 516-21 (offering evidence of
speech activity after Kiernan’s October 2011 promotion),
657. From this timeline, a jury could infer a causal
connection between Kiernan’s protected activity and the
adverse action. See DeCintio, 821 F.2d at 115; see, e.g.,
Gorman-Bakos v. Cornell Co-op Extension of Schenectady
Cty., 252 F.3d 545, 555 (2d Cir. 2001) (“[w]e are
particularly confident that five months is not too long to
support” an allegation of First Amendment retaliation);
Thermidor v. Beth Israel Med. Ctr., 683 F. Supp. 403, 411
(S.D.N.Y. 1988) (proof of causal connection “has been made
inasmuch as plaintiff’s discharge occurred five months
after his” protected activity).


                             9
     Viewing the entire record in the light most favorable
to Kiernan, “it is sufficient to establish a prima facie
case of retaliation.” Taitt, 849 F.2d at 777-78 (“We do
not suggest that [the plaintiff’s] evidence of retaliatory
treatment is strong or uncontradicted. Nevertheless, we
cannot agree ... that the evidence is so weak that a
reasonable jury could not return a verdict in [Plaintiff’s]
favor.”).

     Appellees argue that any inference of causation is
foreclosed by the existence of legitimate grounds for the
alleged adverse action. Although Kiernan accepted
responsibility for four of the 32 disciplinary charges, a
possible alternative justification for adverse action is
not a complete defense to a charge of retaliation; the
relevant question is whether Wilson would have visited the
same adverse action upon Kiernan absent retaliatory animus.
Mt. Healthy, 429 U.S. at 287. It is not at all clear that
Kiernan’s disciplinary infractions related to the Sickles
investigation were the sole reason, or even a reason, for
Wilson’s hostility towards his lieutenant. That Wilson had
the power or duty to investigate Department affairs does
not insulate him from constitutional charge. Wilson now
attributes the attempted demotion and arrest to his
concerns about Kiernan’s timekeeping and personnel
management; but there are reasonable grounds for
skepticism. The mix of testimony raises fair questions as
to Wilson’s motives and the degree to which his stated
rationales were pretextual. E.g., App’x at 647, 657, 673-
76, 726-27; Appellant’s Br. at 12-17.

     The causation inquiry boils down to a question of
Wilson’s motives--and which testimony the fact-finder
should credit. Courts are “reluctant” to dispose of
retaliation claims by summary judgment “where questions
concerning the employer’s state of mind predominate the
inquiry into whether an employee’s expression was a
substantial or motivating factor in the adverse employment
decision.” Cobb, 363 F.3d at 108; see Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994) (“A
trial court must be cautious about granting summary
judgment to an employer when, as here, its intent is at
issue.”); see also Peacock v. Duval, 694 F.2d 644, 646 (9th
Cir. 1982) (“[S]ummary judgment is inappropriate when
                             10
‘questions of motive predominate in the inquiry about how
big a role the protected behavior played in’ the employment
decision.”) (internal citation omitted).

     There are disputed issues of material fact as to
whether Kiernan would have suffered the same consequences
regardless of Wilson’s alleged retaliation. Even if
Wilson’s narrative is more persuasive, “the evidence of a
causal link is sufficient to go to the jury.” See Taitt,
849 F.2d at 778. We therefore vacate the judgment of the
district court dismissing the claims against Wilson and
remand for further proceedings.

Claims against the Town of Southampton

     Kiernan also appeals the dismissal of his claims
against the Town.

     There is no vicarious liability in a Section 1983
action. The Town’s liability therefore cannot be based on
a theory of respondeat superior stemming from Wilson’s
actions as Chief of Police. Goldberg v. Town of Rocky
Hill, 973 F.2d 70, 72 (2d Cir. 1992); Ayers v. Coughlin,
780 F.2d 205, 210 (2d Cir. 1985) (per curiam). Kiernan
must instead show that the deprivation of his First
Amendment rights resulted from a policy or custom of the
municipality. Monell v. City of N.Y. Dep’t of Soc. Servs.,
436 U.S. 658, 690 (1978).

     Kiernan has failed to produce sufficient evidence of
any such policy or custom. Id. at 694; Fed. R. Civ. P.
56(c). Kiernan advances three theories of municipal
liability: (1) the conduct of the Chief of Police, Wilson;
(2) his non-promotion to Captain; and (3) the passage of
the Police Ethics Reform Law (“PERL”).

     When a plaintiff seeks to hold a municipality liable
for the decisions of a municipal policymaker, the plaintiff
must show that the official had final policymaking power.
See City of St. Louis v. Praprotnik, 485 U.S. 112, 123
(1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 480
(1986). The evidence shows that the Town Board (not the
Chief of Police) held final policymaking power over hiring,
termination, and promotion decisions in the Department.
                             11
App’x at 668; see Anthony v. City of New York, 339 F.3d
129, 139 (2d Cir. 2003). Kiernan also alleges that the
failure to interview him for the Captain position reflects
a Town policy or custom. But the evidence shows other
candidates in the Department were more senior and received
higher scores on the civil service promotion test. Kiernan
cannot survive summary judgment on the conclusory assertion
that he was denied promotion primarily due to a violation
of his civil rights. In opposing summary judgment, a
plaintiff must offer “some hard evidence showing that its
version of the events is not wholly fanciful.” Miner v.
Clinton County, New York, 541 F.3d 464, 471 (2d Cir. 2008)
(citation omitted). Kiernan offers no hard evidence of a
discriminatory or retaliatory motive on the part of the
Town.

     Lastly, Kiernan argues that the Town passed the PERL,
which prohibited police officers in the Department from
serving as political party officials, in retaliation for
his exercise of protected speech. After the Town Board
enacted PERL, Kiernan was no longer permitted to be a
committee person for the Republican Party. Kiernan submits
that the Town must have been targeting him because he was
the only full-time police officer impacted by the law.

     Despite its outsized impact on Kiernan, there is no
evidence that the law was designed or applied unequally.
As the district court concluded, Kiernan’s speculation
about the Town’s motives fails to raise a triable issue of
fact. See Process Am., Inc. v. Cynergy Holdings, LLC, 839
F.3d 125, 141 (2d Cir. 2016). We therefore affirm the
dismissal of all claims against the Town.

     For the foregoing reasons, we hereby VACATE the
dismissal of the claims against Appellee Wilson, AFFIRM the
dismissal of claims against Appellee Town of Southampton,
and remand for further proceedings in a manner consistent
with this order.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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