17-82
Gusler v. City of Long Beach


                                    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 16th day of March, two thousand eighteen.

PRESENT:            JOSÉ A. CABRANES,
                    SUSAN L. CARNEY,
                                 Circuit Judges,
                    LAWRENCE J. VILARDO,
                                 District Judge.*



JAY GUSLER,

                               Plaintiff-Appellant,                 17-82

                               v.

THE CITY OF LONG BEACH, THE LONG BEACH
VOLUNTEER FIRE DEPARTMENT, THE LONG BEACH
POLICE DEPARTMENT, CHARLES THEOFAN, GARRET
ROONEY, LISA HIRSCH, COREY KLEIN, ROBERT

     *
    Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New
York, sitting by designation.

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AGOSTISI, MARCO PASSARO, JOHN GARGAN, SCOTT
KEMINS, STEPHEN FRASER, JOHN MCLAUGHLIN,
MICHAEL GELBERG, TIMOTHY RADIN,

                       Defendants-Appellees.



FOR PLAINTIFF-APPELLANT:                                   Stephen Bergstein, Bergstein & Ullrich,
                                                           LLP, New Paltz, NY.

FOR DEFENDANTS-APPELLEES:                                  Paul F. Millus, Meyer, Suozzi, English &
                                                           Klein, P.C., Garden City, NY.

       Appeal from a December 20, 2016 judgment of the United States District Court for the
Eastern District of New York (Ann M. Donnelly, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s judgment of December 20, 2016 be,
and it hereby is, AFFIRMED.

         Plaintiff-Appellant Jay Gusler (“Gusler”) appeals the District Court’s judgment for
Defendants-Appellees. Gusler brought this action under 42 U.S.C. § 1983, among other provisions
of federal law, and under New York state law. He alleged among other things that Defendants-
Appellees violated his First Amendment right to freedom of speech by retaliating against him for
making certain critical statements about the operation of the fire department in Long Beach, New
York. He also claimed breach of contract. The District Court granted Defendants-Appellees’ motion
for summary judgment in part. It concluded among other things that most of Gusler’s critical
statements were not protected speech and could therefore not form the basis of a First Amendment
retaliation claim; it also concluded that Gusler’s breach-of-contract claim was precluded by collateral
estoppel. The District Court denied the motion for summary judgment in part and reserved final
decision on the First Amendment retaliation claim so that it could determine whether several of
Gusler’s statements were speech protected by the First Amendment. To decide whether those
statements were protected, the District Court held an “evidentiary hearing,” Special App. 57, at
which it heard witness testimony about the effect of Gusler’s statements on the functioning of the
fire department. It found that Gusler’s speech had “had a negative effect on the effective and
efficient fulfillment” of the fire department’s duties. J.A. 1462. Applying the balancing test of
Pickering v. Board of Education, 391 U.S. 563 (1968), it concluded that the statements in question were
not protected under the First Amendment. The District Court then dismissed Gusler’s remaining
claims and entered judgment for Defendants-Appellees.



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        We assume the parties’ familiarity with the underlying facts and the rest of the procedural
history of the case. We discuss below the issues that Gusler raises on appeal.

    1. Whether the District Court Erred by Making Findings of Fact

         Gusler first argues that the District Court erred by making findings of fact concerning the
effect that several of his utterances had on the proper functioning of the Long Beach fire
department. He had requested trial by jury; the District Court was therefore not permitted, he
argues, to make findings of fact itself.

        The Seventh Amendment and Rule 38(a) of the Federal Rules of Civil Procedure guarantee
the right to a civil jury trial; however, a party waives the right by failing to demand jury trial in the
manner required by the Federal Rules. Fed. R. Civ. P. 38(d); see also Rosen v. Dick, 639 F.2d 82, 88 (2d
Cir. 1980). Furthermore, a party that has already demanded jury trial may still later waive the right by
his or her course of conduct. Royal American Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011, 1018
(2d Cir. 1989). Participation in a nonjury proceeding does not in and of itself constitute waiver by
course of conduct. Dell’Orfano v. Romano, 962 F.2d 199, 202 (2d Cir. 1992). But if the party that has
demanded jury trial is “on notice that the trial court [is] planning to adjudicate the dispositive issues
of fact” but still fails to register an objection to the nonjury proceeding until appeal, the right is
deemed to have been waived. Royal American Managers, Inc., 885 F.2d at 1018 (quoting United States v.
1966 Beechcraft Aircraft Model King Air A90, 777 F.2d 947, 951 (4th Cir. 1985)).

         We conclude that Gusler waived his right to jury fact finding concerning the effect of several
of his statements on the fire department. Gusler did demand jury trial in his complaint. But there is
no evidence in the record from below that he ever objected to the District Court’s fact finding. Even
if it was unclear at the outset of the “evidentiary hearing” whether the District Court intended to
make findings of fact, the District Court spoke several times about the credibility of witnesses; at the
end of the hearing the court also stated expressly that it was making a finding of fact, see J.A. 1462–
63 (“So based on all the evidence before me . . . I find that the defendants have proved by a
preponderance of the evidence that these instances of speech . . . had a negative effect on the
effective and efficient fulfillment of the municipality’s responsibility to the public.”). Over the
course of the hearing, Gusler received adequate notice that the District Court was making a finding
of fact in a nonjury proceeding, yet he still failed to raise an objection.1 He has therefore waived his
right to jury fact finding.



    1
     Gusler’s lawyer is recorded in the transcript as having made an “exception” at the end of the
proceeding. See J.A. 1463 (“MR. NOVINS: Judge, please note my exception.”). Nothing in the
record suggests to us that this remark was an objection to the District Court’s fact finding; nor does
Gusler claim that it was. Rather, that exception was to the facts that the District Court found.

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    2. Whether the District Court Erred in Applying the Pickering Test

       According to Gusler, the District Court also erred in applying the balancing test of Pickering,
391 U.S. 563.

         The Pickering test is applied to determine whether the government has established its
qualified immunity from a claim of First Amendment retaliation. A public employee states a valid
claim of First Amendment retaliation by alleging facts that establish: that the employee has spoken
in a manner protected by the First Amendment; that the employee “suffered an adverse employment
action”; and that “there was a causal connection between the protected activity and the adverse
employment action.” Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011) (internal
quotation marks omitted). After the public employee has alleged these facts, the government may
establish its entitlement to qualified immunity from the public employee’s claim, and thus judgment
in its favor, if it passes the Pickering test. See id.; see also Sheppard v. Beerman, 94 F.3d 823, 828 (2d Cir.
1996). To pass the test, the government must demonstrate by a preponderance of the evidence that
“that [the public employee’s] speech was likely to disrupt the government’s activities[ and that] the
likely disruption was ‘sufficient to outweigh the First Amendment value of [the public employee’s]
speech.’ ” Mandell v. County of Suffolk, 316 F.3d 368, 382–83 (2d Cir. 2003) (quoting Locurto v. Safir,
264 F.3d 154, 166 (2d Cir. 2001)).

         A district court’s application of the Pickering test is generally a matter of law and hence
reviewable de novo; however, in some cases the “question of the degree to which the employee’s
speech could reasonably have been deemed to impede the employer’s efficient operation [is]
properly regarded as a question of fact[] to be answered [by the fact finder before] application of the
Pickering balancing test.” Johnson v. Ganim, 342 F.3d 105, 114 (2d Cir. 2003) (quoting Gorman-Bakos v.
Cornell Co-op Extension of Schenectady Cty., 252 F.3d 545, 557 (2d Cir. 2001)). In this case, the District
Court applied the Pickering test and entered judgment for Defendants-Appellees only after finding, as
a matter of fact, that Gusler’s speech had had a “negative effect” on the Long Beach fire
department’s operations. J.A. 1462. We must therefore apply the standard of review for bench trials,
reviewing the District Court’s findings of fact for clear error and its conclusions of law de novo. See
White v. White Rose Food, 237 F.3d 174, 178 (2d Cir. 2001).

      Gusler supports his claim of erroneous application of the Pickering test with several
arguments.

        He argues first that the District Court should have treated some of his statements as being of
greater importance to the public than it did. In particular, he refers to his exposé of “the criminal
records of the last four volunteer Fire Chiefs,” which he asserts is of special significance because
“[t]he public has an interest in knowing that firefighters may have questionable backgrounds,” Br.
Pl.-Appellant 43–44; to a letter of August 4, 2010 “concern[ing] the Chief’s administrative failures,”
which he claims “could place the public in danger,” id. at 45; and to comments about the fire

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department’s “failure to properly utilize” a rescue device called the “Jaws of Life,” which he claims
“had potential to place the public at risk,” id. at 46. We conclude that the District Court placed
proper weight on these statements for substantially the same reasons as those that the District Court
gave in its Decision and Order at 3–4, Gusler v. City of Long Beach, No. 10 Civ. 2077 (AMD) (AKT)
(E.D.N.Y. Dec. 9, 2016), ECF No. 160.

        Gusler next argues that the District Court placed too much weight on the testimony of two
fire department officials, Corbett and Kemins, about the effect of his statements on fire department
operations. Gusler asserts that the officials’ testimony was “speculative” and did not prove that there
had been “specific examples of any departmental disruption resulting from [his] comments.” Br. Pl.-
Appellant 49–50. We again conclude that the District Court placed proper weight on these
statements for substantially the same reasons as those that the District Court gave in its Decision
and Order at 4–5, Gusler (E.D.N.Y. Dec. 9, 2016), ECF No. 160, and in its remarks on the record
during the evidentiary hearing, J.A. 1460–62.

         Gusler also argues that the District Court “misplaced reliance” on our decision in Janusaitis v.
Middlebury Volunteer Fire Dep’t, 607 F.2d 17 (2d Cir. 1979). In Janusaitis, we commented in dicta that
“[w]hen lives may be at stake in a fire, an [e]sprit de corps is essential to the success of the joint
endeavor. Carping criticism and abrasive conduct have no place in a small organization that depends
upon common loyalty ‘harmony among coworkers.’” Id. at 26 (quoting Pickering, 391 U.S. at 570). In
Gusler’s view, the District Court wrongly relied on these dicta and thus placed too much weight on
the fire department’s interest in “harmony.” We conclude that the District Court correctly
characterized the needs of a fire department and weighed those needs appropriately in its remarks
during the evidentiary hearing. See J.A. 1460.

    3. Whether the District Court Erred by Failing to Conclude that There Was a Question
       of Material Fact Concerning Defendants-Appellees’ Motive

        Gusler argues that, even if the District Court applied the Pickering test correctly, there is still a
genuine question of material fact as to whether Defendants-Appellees’ motive for disciplining him
was to retaliate against him for his speech itself rather than to prevent disruption to the fire
department’s operations.

        Once the government has passed the Pickering test, a public employee will still receive
judgment in his or her favor if he or she demonstrates that the government’s motive for the adverse
employment action was in fact to retaliate for his or her speech rather than to prevent disruption to
government operations. See Mandell, 316 F.3d at 383. To do so, the employee must “show
‘particularized evidence of direct or circumstantial facts’ supporting his [or her] claim of
unconstitutional motive.” Sheppard, 94 F.3d at 828 (quoting Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir.
1995)).


                                                     5
         Gusler did not make this argument in the District Court,2 and he gives no reason for the
omission. We conclude that he has therefore forfeited his right to make the argument on appeal. See
In re Nortel Networks Corp. Secs. Litig., 539 F.3d 129, 132–33 (2d Cir. 2008) (“[I]t is a well-established
general rule that an appellate court will not consider an issue raised for the first time on appeal. . . .
Although we may exercise discretion to consider [forfeited] arguments where necessary to avoid a
manifest injustice, the circumstances normally do not militate in favor of an exercise of discretion to
address . . . new arguments on appeal where those arguments were available to the [parties] below
and they proffer no reason for their failure to raise the arguments below.” (first, fourth, and fifth
alterations in original) (internal quotation marks and citations omitted)).

    4. Whether the District Court Erred by Dismissing Gusler’s Breach-of-Contract Claim
       on the Ground of Collateral Estoppel

         Gusler’s last argument is that the District Court erred by holding that his claim for breach of
contract was precluded by collateral estoppel. Gusler’s complaint alleged that Defendants-Appellees
had breached an agreement that they had made with him to settle prior litigation arising out of some
of the facts of this case. That settlement agreement provided that Defendant-Appellee City of Long
Beach would expunge certain material from Gusler’s “personnel files or related records.” J.A. 79.
According to the complaint, the City of Long Beach instead “retain[ed] these records in clear
violation of this provision” and introduced them as evidence in a later arbitration proceeding. Id.
The arbitrator in that proceeding decided, however, that the City of Long Beach had not breached
the earlier settlement agreement by retaining the records. The District Court held that the
arbitrator’s decision precluded Gusler’s breach-of-contract claim in federal court. Gusler argues that
the District Court’s conclusion was erroneous because the arbitrator lacked competence to
determine whether he had jurisdiction over the breach-of-contract claim. Moreover, he argues that
the issue of breach of contract was in fact outside the arbitrator’s jurisdiction because it “was
collateral to the matter before the arbitrator.” Br. Pl.-Appellant 62. Defendants-Appellees argue in
response that Gusler has waived these arguments because he failed to make them in the District
Court.

        As we stated above, we have discretion to consider an argument that a party did not make
before appeal; however, we do not ordinarily exercise that discretion when the party could have
made the argument below and offers no reason for its failure to do so. See In re Nortel Networks Corp.

    2
     We have been able to find only one sentence in Gusler’s summary judgment brief that could
reasonably be construed as raising the issue of retaliatory motive: “His efforts to do so have been
evidenced herein and demonstrate that any allegations of disruption on the part of Gusler are
pretext of [sic] the retaliatory actions taken against him.” Pl.’s Mem. of Law in Opp’n to Defs.’ Mot.
for Summ. J. at 17, Gusler v. City of Long Beach, No. 13-CV-2077 (AMD)(AKT) (E.D.N.Y. Mar. 4,
2016), ECF No. 134. This comment is too desultory to preserve Gusler’s right to make an argument
about retaliatory motive on appeal. See Mota v. Castillo, 692 F.3d 108, 118 (2d Cir. 2012).

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Secs. Litig., 539 F.3d at 133. In this case, although Gusler argued the issue of breach of contract in
the District Court, he did not make these arguments about the arbitrator’s competence below. He
instead argued that Defendants-Appellees “have not demonstrated that the burden of proof of the
arbitration is the same that the parties are subject to in this Court.” Special App. 55. We see no
reason why Gusler could not have made his arguments about competence in the District Court, and
Gusler has not given us a reason for his omission. We therefore conclude that he has forfeited his
right to make these arguments on appeal.

                                          CONCLUSION

       We have reviewed all of the arguments raised by Gusler on appeal and find them to be
without merit. We therefore AFFIRM the District Court’s judgment of December 20, 2016.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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