16-1059-cv
Crown v. Danby Fire Dist.


                             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 24th day of January, two thousand seventeen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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ADAM CROWN,
                                 Plaintiff-Appellant,

                            v.                                       No. 16-1059-cv

DANBY FIRE DISTRICT, DANBY VOLUNTEER FIRE
COMPANY, PAT CAVENEY, RICHARD OLTZ,
RALPH BOWLES, WAYNE HOLDEN, MATT
COOPER, JOHN GADEN,
                    Defendants-Appellees,

MARK C. BUTLER,
                                 Defendant.
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APPEARING FOR APPELLANT:                          ROBERT N. ISSEKS, Esq., Middletown,
                                                  New York.

APPEARING FOR APPELLEE:                          STEVEN C. SHAHAN, Taddeo & Shahan,
                                                 LLP, Syracuse, New York.



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       Appeal from a judgment of the United States District Court for the Northern

District of New York (Frederick J. Scullin, Jr., Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on March 31, 2016 is AFFIRMED in part

and VACATED in part, and this matter is REMANDED for further proceedings.

       Plaintiff Adam Crown appeals from an award of summary judgment in favor of

defendants on his claim of constructive discharge in retaliation for the exercise of First

Amendment rights.      Crown argues that the district court erred in (1) denying him

summary judgment on liability based on a prior favorable state administrative decision,

and (2) granting summary judgment (a) to individual defendants based on qualified

immunity, and (b) to municipal defendants in light of Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978). We review de novo the district

court’s adverse collateral-estoppel conclusion, see Matusick v. Erie Cty. Water Auth., 757

F.3d 31, 45 (2d Cir. 2014), and its summary judgment award, “construing the evidence in

the light most favorable to the non-moving party and drawing all reasonable inferences in

its favor,” Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016) (internal

quotation marks omitted). We assume the parties’ familiarity with the facts and record

of prior proceedings, which we reference only as necessary to explain our decision to

affirm in part, vacate in part, and remand.

1.     Collateral Estoppel

       Crown argues that the district court erred in failing to give collateral-estoppel

effect to the New York State Industrial Board of Appeals’s (“IBA’s”) decision that the

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Danby Fire District’s professed reason for preparing disciplinary charges against

Crown—his use of a copy of the Fire Chief’s signature as authorization to enroll in a

training course—was pretextual. Defendants argue that the IBA proceeding did not, in

fact, decide the First Amendment retaliation issue presented here, and in any event, that

they were not in privity with a party to that proceeding.          Agreeing with the latter

contention, we need not reach the former.

       The preclusive effect in federal court of a state agency decision is a question of

state law. See Matusick v. Erie Cty. Water Auth., 757 F.3d at 45. Under New York

law, collateral estoppel—also known as issue preclusion—precludes relitigation of an

identical issue decided against a party in a prior adjudication, see ABN AMRO Bank, N.V. v.

MBIA Inc., 17 N.Y.3d 208, 226, 928 N.Y.S.2d 647, 657 (2011), or against someone in

privity with that party, see Buechel v. Bain, 97 N.Y.2d 295, 304–05, 740 N.Y.S.2d 252,

257 (2001) (defining “privity” to include “successors to a property interest, those who

control an action although not formal parties to it, those whose interests are represented by

a party to the action, and . . . coparties to a prior action,” although all “[d]oubts should be

resolved against imposing preclusion to ensure that the party to be bound can be considered

to have had a full and fair opportunity to litigate” (internal quotation marks omitted)).

Where privity is established, collateral estoppel applies when the issue raised in the

subsequent litigation is “[1] identical to a material issue that was [2] necessarily decided by

the [prior] administrative tribunal and [3] where there was a full and fair opportunity to

litigate before that tribunal.” Auqui v. Seven Thirty One Ltd. P’ship, 22 N.Y.3d 246, 255,

980 N.Y.S.2d 345, 348 (2013).

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      We need not decide whether Crown’s First Amendment claim here presents the

same issue as that before the IBA because that proceeding constituted an appeal from a

New York Department of Labor (“DOL”) decision summarily dismissing Crown’s

administrative complaint, see N.Y. Labor Law § 27-a(10), which proceeding Crown

litigated solely against the Commissioner of Labor, not defendants, see id. § 101(1),

§ 102(2) (establishing IBA review of DOL orders in action against DOL). Defendants

were not in “privity” with DOL for purposes of that proceeding because they shared no

property interest with DOL, in no way controlled the action, and were not otherwise

adequately represented. See Buechel v. Bain, 97 N.Y.2d at 304, 740 N.Y.S.2d at 257–58.

But cf. Newsday, Inc. v. Ross, 80 A.D.2d 1, 7–8, 437 N.Y.S.2d 376, 381 (2d Dep’t 1981)

(finding privity between private actor and Industrial Commissioner where Commissioner

was assignor of plaintiff’s wage-supplement claim). Rather, defendants appeared in that

proceeding only as witnesses, and while defendants’ prior attorney was in attendance, the

record does not demonstrate that he was permitted to advance argument, call witnesses, or

present a defense. Thus, in the absence of an apparent privity relationship or defendants’

full and fair opportunity to litigate before the IBA, see Auqui v. Seven Third One Ltd.

P’ship, 22 N.Y.3d at 255, 980 N.Y.S.2d at 348, and resolving all doubts against imposing

preclusion, see Buechel v. Bain, 97 N.Y.2d at 305, 740 N.Y.S.2d at 258, we here conclude

that the IBA’s pretext determination does not foreclose defendants from challenging

Crown’s First Amendment claim.

      Accordingly, we affirm the denial of plaintiff’s motion for partial summary

judgment.

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2.     Qualified Immunity

       At the same time, we conclude that, on the record presented, defendants were not

entitled to summary judgment on qualified immunity grounds.

       “Qualified immunity shields law enforcement officers from § 1983 claims for

money damages provided that their conduct does not violate clearly established

constitutional rights of which a reasonable person would have been aware.” Zalaski v.

City of Hartford, 723 F.3d 382, 388 (2d Cir. 2013) (citing Ashcroft v. Al-Kidd, 563 U.S.

731, 735 (2011)). At the summary judgment phase, such a conclusion can be reached

only where the facts are undisputed or viewed in the light most favorable to the

nonmovant. See Ricciuti v. Gyzenis, 834 F.3d 162, 169 (2d Cir. 2016).

       Our precedent has long established that a firefighter’s criticisms of a fire

department for deficiencies in training, discipline, and morale, see Janusaitis v.

Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 25 (2d Cir. 1979), and for limitations on

access to public records, see Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d

54, 58 (2d Cir. 1987), are protected matters of public concern, at least insofar as the

criticisms relate to the department generally, rather than to plaintiff specifically, see

Janusaitis v. Middlebury Volunteer Fire Dep’t, 607 F.2d at 25–26 (identifying speech

falling within “general protection of the First Amendment,” but concluding that

plaintiff’s conduct evinced concern only with “proving himself right”); Mulcahey v.

Mulrenan, 328 F. App’x 8, 9 (2d Cir. 2009) (summary order) (identifying no matter of

public concern where firefighter complained that he lacked sufficient training to serve as

battalion chief).   Viewing the facts in the light most favorable to the nonmovant,

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Crown’s speech regarding the District’s training protocols and officer safety constituted

protected speech. See Ricciuti v. Gyzenis, 834 F.3d at 169.

       The district court nevertheless concluded that it was objectively reasonable for

defendants to think that, despite Crown’s protected speech, disciplinary charges were

warranted because he (1) used an unauthorized copy of the Fire Chief’s signature to

enroll in a professional course in violation of N.Y. Gen. Mun. Law § 72-g(1)(a) and

(2) was insubordinate in failing to attend a required meeting. Here again, however, the

conclusion depends on resolving disputed facts against Crown rather than in his favor.

Crown asserts that the Fire Chief authorized him both to take any firefighter classes he

desired and to make photocopies of his signature for that purpose, a contention further

supported by testimony from another firefighter that he was given substantially the same

instruction. Further, record evidence suggests that Crown attempted to reschedule the

meeting at issue, which, viewed most favorably to him, raises at least a question as to

whether defendants in good faith believed his absence to indicate insubordination.

      Defendants maintain nonetheless that Crown’s disciplinary charges cannot support

an inference of First Amendment retaliation because (1) defendants were not aware of

Crown’s DOL complaint until after Crown had already resigned, and (2) Crown’s prior

training and safety complaints were temporally remote. This court has “‘not drawn a

bright line to define the outer limits beyond which a temporal relationship is too

attenuated to establish a causal relationship between the exercise of a federal

constitutional right and an allegedly retaliatory action.’” Littlejohn v. City of New York,

795 F.3d 297, 319 (2d Cir. 2015) (quoting Gorman-Bakos v. Cornell Coop. Extension of

                                            6
Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001)). Where, as here, prior complaints

regarding officer training and safety were nevertheless relevant to Crown’s e-mail

requests made just one month before the meeting at issue, and only two months before

Crown’s resignation, we cannot conclude as a matter of law that no inference of

causation could arise.

       We, of course, express no view as to how disputed facts may be found at trial.

We conclude only that when disputed facts are viewed most favorably to Crown, the

record does not permit a court to conclude as a matter of law that the individual

defendants’ challenged actions are shielded by qualified immunity.

3.     Municipal Liability

       A municipality is liable under § 1983 if a violation of rights resulted from its

“policy or custom, whether made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy.” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir.

2011) (internal quotation marks omitted); see Monell v. Dep’t of Social Servs. of the City

of New York, 436 U.S. at 690. When “an official has final authority over significant

matters involving the exercise of discretion, the choices he makes represent government

policy.”      Nagle v. Marron, 663 F.3d at 116 (internal quotation marks omitted).

Accordingly, “municipal liability may be imposed for a single decision by municipal

policymakers,” and “whether an official had final policymaking authority is a question of

state law.”    Id. (alteration omitted).

       The district court granted summary judgment on the municipal-liability claims on

the ground that Crown proffered no “comparator” firefighters who were treated more

                                            7
favorably than he. Comparator evidence is not necessary where, as here, the conduct of

which the plaintiff complains is that of the municipal policymaker himself acting

pursuant to his official authority. See id. The record here indicates that at a March 23,

2010 board meeting, the Danby Fire District’s Board of Fire Commissioners approved

the commencement of a disciplinary proceeding against Crown; authorized an attorney,

acting as the Fire District’s counsel, to prepare a “Notice of Hearing” and “Charges for

Removal” against Crown; and later advised Crown that the Board would decline to

pursue disciplinary action against him only if he resigned. These actions were official

acts by a policymaker, the authority for which was provided by state law, see N.Y. Gen.

Mun. Law § 209-l (empowering “authorities having control of fire departments of . . .

villages and fire districts [to] make regulations governing the removal of volunteer

officers and volunteer members of such departments and the companies thereof”).

Accordingly, we vacate the grant of summary judgment to municipal defendants, the

Danby Fire District and Danby Volunteer Fire Company.

4.     Conclusion

       We have considered the parties’ remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED in part

and VACATED in part, and this matter is REMANDED for further proceedings before

the district court.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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