13-1230-cv
Raymond Smith v. County of Suffolk

                                                   UNITED STATES COURT OF APPEALS
                                                      FOR THE SECOND CIRCUIT

                                                                         Term, 2013

                                (Submitted: January 17, 2014                          Decided: January 14, 2015)

                           Docket No. 13-1230-cv
________________________________________________________________________

                                                                      RAYMOND SMITH,

                                                                                      Plaintiff-Appellant,

                                                                             - v. -

    COUNTY OF SUFFOLK, RICHARD DORMER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
                     AS SUFFOLK COUNTY POLICE COMMISSIONER,

                                          Defendants-Appellees.
________________________________________________________________________

Before (On Submission):
             HALL, LIVINGSTON, Circuit Judges, and BRODIE, District Judge.*

       Appeal from the February 27, 2013 judgment of the United States District Court for
the Eastern District of New York (Lindsay, M.J.), dismissing the case on summary judgment,
holding that plaintiff-appellant failed to produce facts demonstrating a causal connection
between his protected speech and the adverse employment actions taken against him.
Because the evidence of record, if credited by a jury, demonstrates a causal connection
between the protected speech and the adverse employment action, and because the evidence
viewed in the light most favorable to the plaintiff is insufficient to demonstrate that
defendants-appellees would have transferred and suspended plaintiff had he not engaged in
protected speech, defendants are not entitled to summary judgment. We therefore VACATE
the judgment of the district court and REMAND this case for further proceedings.

                VACATED and REMANDED.

                                                                     Steven A. Morelli,
                                                                            Law Office of Stephen A. Morelli, P.C., Garden
                                                                            City, NY, for Plaintiff-Appellant Raymond Smith.
																																																																		
*        The Honorable Margo K. Brodie, of the United States District Court for the Eastern District of New
York, sitting by designation.
                                     Rudolph M. Baptiste,
                                           Assistant County Attorney, for Dennis M. Brown,
                                           Suffolk County Attorney, County of Suffolk,
                                           Hauppague, NY, for Defendants-Appellees County of
                                           Suffolk, Richard Dormer, individually and in his capacity
                                           as Suffolk County Police Commissioner.
PER CURIAM:

       Plaintiff-appellant Raymond Smith (“Smith”) appeals the district court’s grant of

summary judgment and dismissal of his First Amendment employment retaliation case. The

district court held that the record failed to demonstrate a causal connection between Smith’s

protected speech and the Suffolk County Police Department’s (“Department”) adverse

employment actions. On appeal, Smith argues (1) that the record contains evidence

connecting Smith’s protected speech to the adverse employment actions sufficient to give

rise to genuine questions of material fact, and (2) that the defendants-appellees fail to proffer

evidence warranting summary judgment on the basis that those adverse actions would have

occurred absent Smith’s protected speech. We conclude that because Smith is correct on

both points, the district court erred in granting summary judgment. We therefore VACATE

the district court’s judgment and REMAND this case for further proceedings.

                            I.     FACTUAL BACKGROUND

       Smith worked for the Department from 1981 until his retirement in 2008. Smith rose

to the rank of lieutenant, where his duties included supervising a squad of officers, planning

community events, responding to complaints, coordinating with other squads and precincts,

preparing computerized crime reports, and conducting motor patrols.




	                                               2
	
                Smith was investigated, warned, or otherwise disciplined for misconduct related to

the use of his Department-owned computer1 on several occasions leading up to the incidents

at issue. In 1997, after it was discovered that Smith had installed a modem on a computer

without authorization, he was warned not to install, reconfigure, or tamper with Department

programs or computers. In 2000, after investigating an incident of computer tampering that

had prevented other users from accessing his computer, the Department reprimanded Smith

for computer misuse. Smith was issued a written directive to read and familiarize himself

with the Department’s computer policy. The directive included the explicit policy statements

that “Department computers are for official use only,” use of “any Department information

or equipment for personal use or gain is strictly prohibited,” and “Internet access that is

made available is for Department use only.” J.A. 32728. Six years later, in 2006, it was

discovered that Smith had used a computer to make flyers for a Fantasy Baseball League.

Although the Department found this to be a minor indiscretion and did not take formal

disciplinary action, it was recommended that Smith receive guidance regarding the use and

misuse of Department equipment.

                The events giving rise to the case now on appeal were set in motion on July 27, 2007,

when Smith was required to appear and present certain documents at a New York State

Department of Motor Vehicles hearing (“DMV hearing”) related to an arrest that he

conducted. Smith failed to appear on time, and when the Department asked about his delay,

Smith claimed that while preparing for the hearing, he was forced to search for and review


																																																																		
1      Hereafter, all computers referenced in this opinion were property of the Suffolk County Police
Department.

	                                                                    3
	
his case notes on his computer because they were not in the usual file. The Department

conducted a forensic examination of Smith’s computer to verify his excuse.

       The examination revealed that Smith “had repeatedly, and without authorization,

communicated by email with a number of representatives of the information media, as well

as others, about matters pertaining to Departmental business.” J.A. 60. This communication

began in 2004 and continued throughout 2007, when Smith began corresponding with CNN

commentator Jeffrey Toobin about the high-profile case in which Martin Tankleff was

convicted for the murder of his parents, only to be exonerated in 2007 after serving

seventeen years in prison. In a “tip” emailed to Toobin, Smith contended that the homicide

detective may have helped plan the murder and orchestrated a cover-up, that the district

attorney appeared to have an ethical conflict and was protecting the actual murderers, and

that there was a history of documented abuses committed by the Suffolk County Police

Homicide Squad. The examination also revealed that in May 2007 Smith exchanged emails

with Newsday correspondent Christine Armario expressing concern that the Department’s

policy of arresting unlicensed drivers led to ethnic discrimination. In these instances and

others, Smith signed his emails in his official capacity as “Lieutenant Raymond F. Smith,

Sixth Precinct.”

       On January 2, 2008, the Department transferred Smith to an administrative, non-

supervisory position working in an office without a computer. The new position precluded

him from earning overtime or night shift pay, and he suffered a ten percent pay cut because

he was no longer permitted to work the more lucrative midnight shift.




	                                              4
	
       Following negotiations with Smith’s union representative, the Department served

Smith with two disciplinary charges on January 31, 2008, both related to his emails to

Armario. Charge Two was for conduct unbecoming an officer and alleged that Smith used

his Departmental computer and email to “improperly communicate with the media . . .

regarding Department policy in a manner tending to bring discredit to the Police

Department.” J.A. 537. The following day, Smith was suspended for thirty days without pay.

On February 7, 2008, Smith was served with notice of thirty-two additional disciplinary

charges for various violations of the Department’s rules and procedures, including: missing

the DMV hearing, expressing his personal opinion in a manner tending to discredit the

Department, sending e-mails discrediting the Department, using Departmental email to

conduct non-Departmental business, accessing non-work related websites, using profanity in

his emails, and failing to refer media inquiries to the Department’s Public Information

Section. Upon returning to work in early March 2008, Smith was transferred to a different

administrative position. He decided to retire voluntarily at the end of April 2008 rather than

face further disciplinary proceedings.

       In March 2010, Smith filed his complaint in this case alleging under 42 U.S.C. § 1983

that defendants Suffolk County and County Police Commissioner Richard Dormer

(“defendants”) retaliated against him for exercising his First Amendment right to freedom of

speech. Smith also brought a claim for violation of Article 1, Section 8 of the New York

State Constitution. The alleged retaliatory acts included investigation into his personal affairs,

serving him with disciplinary charges, reassigning him to a lower-paying administrative

position, suspending him without pay, and eventually forcing his retirement.


	                                               5
	
        II.     LEGAL FRAMEWORK GOVERNING FIRST AMENDMENT
                            RETALIATION CLAIMS

       To survive summary judgment on a First Amendment retaliation claim, a public

employee must establish a prima facie case by “bring[ing] forth evidence showing that [1] he

has engaged in protected First Amendment activity, [2] he suffered an adverse employment

action, and [3] there was a causal connection between the protected activity and the adverse

employment action.” Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007).

       As relevant here, the First Amendment protects speech uttered by an employee in his

or her capacity as a citizen regarding a matter of public concern. Lane v. Franks, 134 S. Ct.

2369, 2378 (2014). To demonstrate a causal connection “a plaintiff must show that the

protected speech was a substantial motivating factor in the adverse employment action.”

Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir. 2006) (internal

quotation marks omitted). A plaintiff may establish causation either directly through a

showing of retaliatory animus, or indirectly through a showing that the protected activity was

followed closely by the adverse action. Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (internal

citation omitted). Since a direct showing requires plaintiff to provide “tangible proof” of

retaliatory animus, “conclusory assertions of retaliatory motive” are insufficient. Id.

       Once the plaintiff “makes out a prima facie retaliation claim, a government defendant

may still receive summary judgment if it establishes its entitlement to a relevant defense.”

Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011). The Supreme Court

identified one such defense in Mount Healthy City School District Board of Education v. Doyle, 429

U.S. 274 (1977). “Because protected speech could not substantially cause an adverse action if

the employer would have taken that action in any event,” Nagle v. Marron, 663 F.3d 100, 111

	                                                 6
	
(2d Cir. 2011), once the employee has established a prima facie case, the employer may still

be entitled to summary judgment based on the Mount Healthy defense by demonstrating “by a

preponderance of the evidence that it would have taken the same adverse employment

action ‘even in the absence of the protected conduct.’” Morris v. Lindau, 196 F.3d 102, 110

(2d Cir. 1999) (quoting Mount Healthy, 429 U.S. at 287), abrogated on other grounds by Burlington

N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 67 (2006); see also Anemone, 629 F.3d at 114.

       A government employer may also challenge and, if successful, avoid liability under

the balancing test established in Pickering v. Board of Education, 391 U.S. 563 (1968), which

safeguards the government’s interest “as an employer, in promoting the efficiency of the

public services it performs through its employees,” Piscottano v. Murphy, 511 F.3d 247, 269 (2d

Cir. 2007) (quoting Pickering, 391 U.S. at 568). Under Pickering, defendants bear the burden of

demonstrating that “the plaintiff’s expression was likely to disrupt the government’s

activities and that the harm caused by the disruption outweighs the value of the plaintiff’s

expression.” Anemone, 629 F.3d at 115 (quoting Skehan v. Vill. of Mamaroneck, 465 F.3d 96,

106 (2d Cir. 2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir.

2008)). Defendants need not present evidence that such harm or disruption—which may

include “having the judgment and professionalism of the agency brought into serious

disrepute”—has in fact occurred, but only that it made a “reasonable determination that the

employer’s speech creates the potential for such harms.” Piscottano, 511 F.3d at 271.

                             III.    PROCEDURAL HISTORY

       Defendants moved for complete summary judgment, and Smith filed a cross-motion

for partial summary judgment on the issue of liability. In a written order resolving both


	                                                7
	
motions, the district court (Lindsay, M.J.) reviewed the elements of Smith’s prima facie case.

Smith v. Cnty. of Suffolk, 2013 WL 752635 (E.D.N.Y. Feb. 27, 2013). The court determined

that Smith’s communications to Newsday and CNN constituted speech made in his capacity

as a citizen on a matter of public concern, and as such were protected under the First

Amendment. The court also found that Smith suffered adverse employment actions

including the initiation of disciplinary proceedings, his reassignment and reduction in pay,

and the thirty-day suspension without pay. The court held, however, that Smith failed to

demonstrate a sufficient connection between his speech and the adverse actions he suffered.

       The court also stated in a footnote that although it need not reach the issue,

defendants would “likely” succeed on the Mount Healthy defense by showing that they would

have taken the same actions even if Smith had not sent the media emails. Id. at *17 n. 6. The

court outlined but did not apply the Pickering test, id. at *7, nor hint at defendants’ likelihood

of success on that defense.

       The court granted defendants’ motion as to Smith’s federal claim, dismissed the state

claim without prejudice to renewing it in state court, and denied Smith’s motion for partial

summary judgment.

                              IV.    SCOPE OF THE APPEAL

       Given the district court’s holdings, the arguments advanced on appeal, and the

evidence proffered to support those arguments, the issues before us are few and narrowly

drawn. The scope of this appeal is therefore most effectively captured by initially identifying

and declining to address the issues that fall outside its boundaries.




	                                               8
	
       First, we note with interest that defendants do not cross-appeal or otherwise

challenge the district court’s rulings that (1) by speaking on a matter of public concern in his

capacity as a citizen, rather than an employee, Smith had engaged in activity protected by the

First Amendment, and (2) Smith suffered adverse employment actions. Since the defendants

do not now contest these two elements of Smith’s prima facie case, we will not address the

district court’s conclusions with respect to them.

       The district court outlined the Pickering test. Because it held, however, that there was

no causal connection between Smith’s engaging in protected speech and the adverse

employment actions, and therefore no prima facie case of retaliation, it did not conduct a

Pickering analysis. On appeal, defendants only mention Pickering in passing. While the facts of

this case—including the charges filed against Smith and the Departmental policies upon

which they were based—appear to implicate a Pickering defense, without a decision below

with respect to that defense or an argument on appeal advancing that defense, we have no

basis on which to address that issue. The defendants’ burden in this regard is not ours to

meet, and the current posture of this case places any Pickering determination outside the

province of this court.

       The district court also touched upon qualified immunity in a footnote, suggesting that

it provided an additional ground for granting summary judgment in favor of defendants

because “[t]he record is simply devoid of any evidence supporting Smith’s claim that he was

disciplined for reasons other than violating departmental policy with respect to computer

usage.” Smith, 2013 WL 752635, at * 17 n.5. Defendants raise qualified immunity on appeal,

arguing that since there is no prima facie case there can be no constitutional violation.


	                                              9
	
Because we hold that Smith did in fact establish a prima facie case and because qualified

immunity was not dispositive below nor sufficiently briefed on appeal, a decision regarding

the applicability of qualified immunity by this court at this time is also inappropriate.

                We begin our analysis, therefore, at the third and final prima facie element: whether

there is a causal connection between what the district court identified as Smith’s protected

speech and the adverse actions he suffered. We will then address an ostensible Mount Healthy

defense since the district court suggested the “likely” outcome of its analysis of that issue

and because both parties raise and brief that issue on appeal.2

                                                                     V.   DISCUSSION

                Smith argues that the district court erred in ruling that the evidence did not

demonstrate a sufficient causal connection between his protected speech and the adverse

employment actions he suffered. Smith also challenges the court’s statement that the

defendants would likely succeed on their Mount Healthy defense. Defendants counter that

Smith failed to present evidence establishing a causal connection and that the court “aptly

noted” that even if Smith established a prima facie case, they would have been entitled to the

Mount Healthy defense.

                a. Standard of Review

                We review de novo orders granting summary judgment to determine whether, as the

movant contends, there was no genuine issue as to any material fact such that the movant

was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
																																																																		
2        Cf. Mount Healthy, 429 U.S. at 287 (since the plaintiff-respondent carried his burden at the prima facie
stage, “the District Court should have gone on to determine whether the Board had shown by a
preponderance of the evidence that it would have reached the same decision;” the Supreme Court vacated
and remanded the judgment because it “[could] not tell from the District Court’s opinion and conclusions . . .
what conclusion [it] would have reached had [it] applied this test”).

	                                                                           10
	
292, 300 (2d Cir. 2003). We “resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is sought.” Lederman v. New

York City Dep’t of Parks & Recreation, 731 F.3d 199, 202 (2d Cir. 2013) (internal quotation

marks and alterations omitted). Summary judgment is appropriate when “the record taken as

a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

                b. Causal Connection

                Smith challenges the district court’s decision on grounds that he presented both

direct evidence of retaliatory intent and indirect evidence of temporal proximity between his

protected speech and the adverse employment actions, and of disparate treatment.3 The

court did not address direct evidence of retaliatory intent beyond stating that Smith had not

offered any. Smith, 2013 WL 752635 at *13. We disagree. The plain language of several of the

disciplinary charges at the heart of the adverse actions directly implicates not only the fact

that Smith had engaged in protected speech, but also the content of that speech. Charge 2 of

the January 31, 2008 Notice of Charges, and Charges 1, 2, and 4 of the February 7, 2008

Notice of Charges are related to individual emails Smith sent to CNN and Newsday reporters.

Those charges state that Smith commented on Department policy “in a manner tending to

bring discredit to the Police Department.” J.A. 537, 53143. The Department thereby both

characterized the content of the speech and cited that characterization as the basis for

several disciplinary charges. Various internal Department memoranda reveal similar direct

evidence of a causal connection. For example, a March 2008 Internal Affairs Bureau (“IAB”)
																																																																		
3      Because we find Smith’s direct evidence of retaliatory intent sufficient to survive summary judgment,
we do not pass upon the sufficiency of his indirect evidence.

	                                                                    11
	
memorandum stated that in the emails discovered through the forensic exam, Smith “had

nothing positive to say about the conduct of Department business; conversely, the nature of

many of these emails was such that they tended to bring discredit to the Department.” J.A.

60.

       Given the plain language of the charges against Smith and the internal memoranda, a

reasonable juror could conclude that the Department’s actions were motivated, at least in

part, by a retaliatory animus. Smith has presented direct evidence, which, if credited by a

jury, could prove a causal connection between his protected speech and the adverse

employment actions. The district court erred in determining otherwise.

       Smith having presented a prima facie case of First Amendment retaliation, we now

turn to whether defendants are nonetheless entitled to summary judgment in their favor by

showing “that [the Department] would have taken the same adverse action[s] in the absence

of the protected speech.” Anemone, 629 F.3d at 114 (quoting Heil v. Santoro, 147 F.3d 103,

109 (2d Cir. 1998)).

       c. Mount Healthy Defense

       Since the district court granted summary judgment based on the erroneous

conclusion that Smith failed to establish the necessary causal connection, it only had

occasion to address in passing whether the defendants would have taken the same adverse

actions absent Smith’s protected speech. It did so cursorily in a footnote stating:

           Although the Court need not reach this issue, even if plaintiff had satisfied
           his initial burden, Smith’s history of continued and extensive misuse of the
           Department’s computer for personal and non-police business would likely
           be sufficient to grant defendants’ motion for summary judgment on the
           ground that defendants would have initiated the disciplinary proceedings,


	                                              12
	
                        suspension and removal of Smith from a supervisory position even if he
                        had not sent the media e-mails.

Smith¸2013 WL 752635, at *18 n. 6. (citing Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d

Cir. 2000)).

                While the Mount Healthy defense was not determinative below, it takes on significant

import on appeal given our conclusion that Smith established a prima facie case. The

operative question is whether defendants have demonstrated that a reasonable jury would

have to find by a preponderance of the evidence that the Department would have

investigated, transferred, and suspended Smith absent his citizen-media speech.4 See Nagle,

663 F.3d at 112 (“Appellees are entitled to summary judgment if they can show that a

reasonable jury would have to find by a preponderance of the evidence that Appellees would

have dismissed [Appellant] even if they had not learned of her [protected] speech.”);

Anemone, 629 F.3d at 115; Diesel, 232 F.3d at 107. The unprotected conduct, standing alone,

must justify the adverse actions.

                We begin by summarizing Smith’s unprotected conduct as reflected in the various

disciplinary charges.5 On February 7, 2008, the Department served Smith with charges of

																																																																		
4        Like the district court, we reject any claim that the Department “eventually forc[ed] Smith into
retirement,” Smith, 2013 WL 752635, at * 13 n. 2. Nothing on the record supports such a conclusion, and
Smith admitted to filing his retirement papers voluntarily.
5        Several charges state that Smith emailed various unidentified persons and spoke in a way that
“tended to bring discredit to the Police Department.” These emails, as instances of speech, occupy a grey area
in our analysis. On the one hand, the district court specifically ruled that Smith’s emails to Newsday and CNN
are subject to First Amendment protection, and these emails were not sent to either of those recipients. On
the other hand, the charges resulting from those emails implicate the type of speech that is protected and
describe the content of that speech using the exact phrase, viewed in the light most favorable to Smith, that
would indicate a retaliatory animus: “tended to bring discredit to the Police Department.” In an abundance of
caution – and mindful of the fact that defendants bear the burden of proof both on the Mount Healthy
defense, Anemone, 629 F.3d at 115, and on summary judgment – we will not consider any charges related to
emails characterized as “tending to bring discredit,” regardless of their recipient. Similarly, we will not
consider any charges based on emails sent to a CNN or Newsday email addresses, regardless of whether those

	                                                                    13
	
misconduct that included sending emails to outsiders: “disclosing an arrestee’s Penal Law

and V&T charges,” (Charge 7, Specification #1); discussing/regarding “a prior Suffolk

County Police Department investigation” (Charge 7, Specification #2; Charge 8); discussing

a real estate deal (Charges 20; 32); using profanity (Charges 21; 29); and “for personal

reasons” (Charges 23; 26; 28; 29; 30). J.A. 54151. Smith was also charged with failing to

refer a media inquiry to the proper departmental authorities (Charge 11), accessing numerous

non-work related internet websites while on duty for his own personal use and

entertainment on several occasions (Charges 13, 14, 15, 16), and accessing non-work related

websites to pay bills (Charge 17). He was also charged for failing to appear at the DMV

hearing (Charge 1, first notice). Defendants have thus presented considerable evidence of

extensive misconduct that is separate and distinct from the incidents of speech the district

court determined were subject to First Amendment protection.

                In their arguments to us on appeal, defendants merely point to this unprotected

conduct and summarily state that “[a]ny objective observer in view of the record evidence is

bound to [conclude] . . . that irrespective of [Smith’s] expression of his opinion to news

media and others, reasonable and adequate grounds supporting . . . charges for misconduct

for flagrant disregard of departmental computer and Internet use rules existed.” Appellee’s

Br. 37. The Mount Healthy defense, however, demands more than this type of general

conclusion, particularly on summary judgment. Much as plaintiffs are required at the prima

facie stage to demonstrate not only the existence of protected speech but a causal

connection between that speech and the adverse action, defendants asserting a Mount Healthy
																																																																																																																																																																																																																				
charges expressly mention or allude to the email content. We note our analysis in this regard is in no way
intended to limit what evidence may be considered by the finder of fact on remand.

	                                                                                                     14
	
defense may not rely solely on the occurrence of unprotected misconduct: they must also

articulate and substantiate a reasonable link between that misconduct and their specific adverse

actions. A general statement that the employer would have taken some adverse action will not

suffice. See Diesel, 232 F.3d at 107 (“If a plaintiff establishes [the] three elements [of a prima

facie case], a defendant may avoid liability by showing ‘by a preponderance of the evidence

that it would have reached the same decision as to the employment action even in the absence of the

protected conduct.’” (quoting Mount Healthy, 429 U.S. at 287 (internal brackets omitted and

emphasis added))); Greenwich Citizens Comm., Inc. v Counties of Warren & Washington Indus. Dev.

Agency, 77 F.3d 26, 32 (2d Cir. 1996) (describing the Mount Healthy defense as tantamount to

the “hypothetical question, ‘Would the defendant have taken the same adverse action even if the

impermissible reason had not existed?’.” (emphasis added)).

       Turning to the adverse actions, we first examine the investigation itself, which the

Department undertook based on Smith’s explanation for his failure to appear at the DMV

hearing. Thus, the investigation was prompted not by Smith’s citizen-media speech but by

separate misconduct. Practically speaking, the disciplinary wheels were in motion before the

Department ever learned about Smith’s protected speech. A constitutionally sound

investigation, however, does not insulate any resulting adverse actions from constitutional

scrutiny.

       Given Smith’s previous and continued computer-related transgressions, a jury might

conclude that the Department transferred Smith because the new position did not require

him to use a computer. This theory, however, is entirely speculative and draws all inferences

in favor of the defendants rather than Smith. A reasonable jury might just as easily infer that


	                                               15
	
because the Department did not transfer Smith following his similar misconduct in the past,

he was transferred because of his protected citizen-media speech, rather than in spite of it as

defendants argue. Defendants have thus failed to present any evidence that the Department

would have transferred Smith absent his citizen-media speech. They point to Smith’s

extensive unprotected conduct that violated the Department’s policies, but fail to show

affirmatively that that conduct alone would have resulted in a transfer.6

                We reach a similar conclusion regarding Smith’s thirty-day suspension without pay.

The record contains scant evidence on the details surrounding Smith’s suspension save that

it was imposed on February 1, 2008, upon the approval of Commissioner Dormer. While the

record does not identify the precise reason for the suspension, sufficient circumstantial

evidence exists from which a reasonable jury could infer it was primarily, if not entirely,

based on the protected citizen-media speech. Smith was suspended the day after the

Department issued its initial two charges. Those charges pertained solely to the protected

speech. Smith was not served with any charges related to his unprotected misconduct until a

week later. Given this timeline a jury could conclude that the thirty-day suspension was in

response to Smith’s citizen-media speech and unrelated to any of his unprotected conduct.

The record, moreover, contains evidence that tends to support such a conclusion, including

																																																																		
6        In its analysis of causal connection, the district court stated with respect to Smith’s transfer that
“there is record evidence that Deputy Commissioner Shannon determined that Smith should be removed
from a supervisory position since the plaintiff had previous warnings concerning the misuse of the police
computer,” citing a declaration of defendants’ counsel. Smith, 2013 WL 752635, at *17. The portion of the
declaration the court states, inter alia, that “Deputy Commissioner Shannon noted that the plaintiff should not
be a supervisor since the plaintiff had previous warnings on the misuse of the computer, (Exhibit ‘O’ p.85
lines 11-24).” J.A. 720-21. The court notes, however, that “defendants refer to Exhibit O at page 85 lines 11-
24, but have not attached this page to the Declaration.” Smith, 2013 WL 752635, at n.4. We do not assign
significant weight to defense counsel’s interpretation of witness testimony when that testimony is not
included in the record. Defense counsel’s representation falls short of the type of evidence defendants must
proffer to meet their Mount Healthy burden.

	                                                                    16
	
Deputy Commissioner Shannon’s acknowledgement that use of computers for non-work

related matters is not uncommon and that he is unaware of any instances when an officer

has been disciplined—let alone suspended—for such behavior.

       On the record before us, the defendants have failed to demonstrate that a reasonable

jury must conclude by a preponderance of the evidence that the Department would have

taken these adverse actions absent Smith’s having engaged in protected citizen-media speech.

See Greenwich Citizens Comm., Inc., 77 F.3d at 32 (A defendant can “avoid liability by showing

that it would have taken the same action in the absence of the impermissible reason.”). We

do not dictate what might constitute sufficient evidence to clear that bar in this instance.

Perhaps, as Smith suggests in his disparate treatment argument, evidence showing that the

Department had previously suspended or transferred an officer for similar non-protected

misconduct would suffice. The record here, however, does not contain any documentation

regarding Smith’s transfer or suspension that provides insight into the Department’s

decision-making process or any stated reasons underlying those actions.

       Put simply, the evidence of record before us permits only inferences. Those

inferences may be drawn in either party’s favor, and we require more than inferences from

an employer seeking summary judgment based on the Mount Healthy defense.

       Given the language of the charges against Smith related to his media

communications, which the district court classified as protected speech, juxtaposed with the

Department’s computer use policy, a jury must determine whether defendants would have

transferred Smith to an administrative position or suspended him for thirty days

notwithstanding his protected speech. We express no view on that issue but merely conclude


	                                              17
	
that defendants have failed to produce evidence and advance arguments that vitiate

questions of material fact at the heart of the primary issue now before us: Why did the

Department discipline Smith in the manner in which it did? As we have previously held,

“[s]ummary judgment is precluded where questions regarding an employer’s motive

predominate in the inquiry regarding how important a role the protected speech played in

the adverse employment decision.” Morris, 196 F.3d at 110.

                                   VI.    CONCLUSION

       To summarize, because defendants do not challenge them on appeal, we do not

revisit the district court’s conclusions that Smith’s media communications enjoyed First

Amendment protection as citizen speech on a topic of public concern and that the

Department’s employment actions were adverse to Smith. We also express no opinion as to

whether, in the absence of the direct evidence offered by Smith, Smith would have been able

to prevail on the basis of his indirect evidence of retaliatory intent. We conclude that Smith

has proffered sufficient direct evidence of retaliatory intent from which a reasonable jury

could find a causal connection between his protected speech and the Department’s adverse

employment actions. Accordingly, Smith has established a prima facie case of First

Amendment retaliation.

       Because the defendants have not met their burden to establish at this stage of the

proceedings that the Department would have transferred Smith to an administrative position

or suspended him for thirty days without pay based solely on his unprotected conduct,

defendants are not entitled to summary judgment based on the Mount Healthy defense.




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       The record evidence raises several genuine questions of material fact such that an

award of summary judgment in the defendants’ favor is unjustified.

       We therefore VACATE the judgment and REMAND the case for further

proceedings not inconsistent with this opinion.




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