Cotarelo v. Village of Sleepy Hollow Police Department

460 F.3d 247, 24 I.E.R. Cas. (BNA) 1656, 2006 U.S. App. LEXIS 20394, 88 Empl. Prac. Dec. (CCH) 42,484, 2006 WL 2277974
CourtCourt of Appeals for the Second Circuit
DecidedAugust 9, 2006
DocketDocket No. 04-4627-CV
StatusPublished
Cited by5 cases

This text of 460 F.3d 247 (Cotarelo v. Village of Sleepy Hollow Police Department) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotarelo v. Village of Sleepy Hollow Police Department, 460 F.3d 247, 24 I.E.R. Cas. (BNA) 1656, 2006 U.S. App. LEXIS 20394, 88 Empl. Prac. Dec. (CCH) 42,484, 2006 WL 2277974 (2d Cir. 2006).

Opinion

WINTER, Circuit Judge.

Jose Cotarelo appeals Judge Yanthis’ grant of summary judgment and the resultant dismissal of his First Amendment claim based on an alleged employment retaliation for his protected activity and political affiliation. We affirm. Appellees demonstrated as a matter of law that the same adverse employment action would have been taken even in the absence of appellant’s protected speech and political affiliation.

BACKGROUND.

Viewing the record in the light most favorable to appellant, the factual background is as follows. Appellant has been a police officer with the Sleepy Hollow Police Department since 1986. After he was caught hunting on a preserve while on duty in December 1991, he paid a fine and was disciplined by the Police Department, agreeing to work for ten days without pay.

[250]*250In December 1998, Cotarelo and another officer, Detective Frank Corona, wrote a letter to the Police Chief, Jimmy Warren, Jr., detailing their concern “about the growing trend in the [Police Department] regarding bigotry and discrimination directed towards the Spanish-speaking police officers.” The letter listed the following as examples: (i) a statement by police officer James Reddy at a departmental meeting that he and most of the other officers “resent the Spanish-speaking offi: cers speaking Spanish in headquarters,” (ii) other officers’ refusal to buzz the plaintiff into headquarters, (iii) retired officer Manny Caxieiro telling Detective Corona that he should not speak Spanish and using an ethnic slur for Ecuadorians, (iv) Officer Reddy’s threat to tell the Chief that another officer was speaking Spanish on the telephone, and (v) the discrimination inherent in using the officers’ Spanish fluency for some purposes while forbidding them to speak Spanish in front of officers who weren’t Spanish-speaking. Officer Cotarelo and Detective Corona asked the Chief to address these issues.

In March 1999, Cotarelo filed a federal lawsuit alleging that the work environment at the Police Department was hostile to Hispanics and that the hostile environment worsened after he voiced his opposition to it. In March 2001, the case settled without the defendants admitting any liability.

Appellant testified in his deposition that, after he brought the lawsuit, he deliberately decreased the frequency at which he issued tickets and summonses.1 This led to a decrease in his BETA score, a method of evaluating a patrol officer’s productivity. Appellant also testified that ticket and summonses issuance is a valid evaluator.

After several failures, Cotarelo passed the Civil Service test for promotion to sergeant in 2001 and was put on the list of candidates for promotion for the first time. Later that year, Officers Paul Hood, Robert Nevelus, and Cotarelo were interviewed by the Police Committee of the Village Board for promotion to sergeant. Three members of the Village Board of Trustees made up the Police Committee, which was to interview candidates for promotion and recommend one to the Mayor. The recommended candidate’s name was then to be submitted by the Mayor for a vote of the full Village Board of Trustees.

The Police Chief submitted evaluations of all the candidates to the-Police Committee, recommending both Hood and Cotare-lo, but ranking Hood first. He did not recommend Nevelus for promotion. All three candidates were interviewed by the Village Administrator, Dwight Douglas, and the Police Committee, with Chief Warren and a police lieutenant present. After reviewing the applications and completing the interviews, the Police Committee unanimously recommended Officer Hood for promotion to sergeant. Mayor Zegarelli submitted Officer Hood’s name for a vote of the Board of Trustees, which then approved the promotion.

Although other officers were promoted to detective rank, one in 2001 and one in 2003, Cotarelo was not considered for those promotions by the Chief. Chief Warren had met with Cotarelo in 2002, shortly after the Hood promotion, and advised Cotarelo to improve his BETA scores in order to be considered for future [251]*251promotions. In the previous two years, Cotarelo had BETA scores that were next to last among the patrol officers. As noted above, appellant conceded that these low scores were the result of his deliberate inactivity. In 2002, after the advice from Chief Warren, Cotarelo’s BETA score ranked last out of the fifteen patrol officers. Moreover, Cotarelo had heard a (mistaken) rumor that Chief Warren had not recommended Cotarelo for promotion to sergeant and, as a result, had ceased to speak to Chief Warren, except when professionally necessary.2 Chief Warren pointed to this behavior as the reason for not considering Cotarelo for promotion to detective.

Cotarelo had supported the political campaigns of two of Mayor Zegarelli’s past opponents: Janet Gandolfo and Sean Trea-cey, both Democrats. Mayor Zegarelli, a Republican, had told Chief Warren he had seen what he thought was Cotarelo’s patrol car parked outside of Ms. Gandolfo’s home while Cotarelo was on duty, but Co-tarelo denied that it was his car. In noting Cotarelo’s affiliation with the Democratic Party, the Mayor also left Chief Warren with the impression that he preferred not to promote a Democrat.

In May 2002, Cotarelo filed the present action, alleging that he was not promoted to sergeant by the defendants in November 2001 because of his national origin, his letter to Chief Warren in 1998, and his 1999 lawsuit. He amended the complaint in January 2003 to include an allegation that he was not promoted to detective because of the letter, his past lawsuit, and the instant lawsuit, and again in November 2003 to allege that he was not promoted because he was associated with the Democratic Party. In August 2004, the district court granted the defendants’ motion for summary judgment on all of Cotarelo’s claims. Cotarelo appeals only from the grant of summary judgment on his First Amendment claim.

DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Phaneuf v. Fraikin, 448 F.3d 591, 595 (2d Cir.2006). Summary judgment is only appropriate when there are no genuine material issues of fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Ca-trett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B. First Amendment Retaliation Claim

To survive a motion for summary judgment on a First Amendment retaliation claim, the plaintiff must present evidence which shows “ ‘[1] that the speech at issue was protected, [2] that he suffered an adverse employment action, and [3] that there was a causal connection between the protected speech and the adverse employment action.’ ” Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir.2000) (alterations in original) (quoting Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994)).

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460 F.3d 247, 24 I.E.R. Cas. (BNA) 1656, 2006 U.S. App. LEXIS 20394, 88 Empl. Prac. Dec. (CCH) 42,484, 2006 WL 2277974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotarelo-v-village-of-sleepy-hollow-police-department-ca2-2006.