06-2501-cv Dillon v. Morano
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT _______________________________
August Term, 2006
(Argued: May 31, 2007 Decided: August 16, 2007)
Docket No. 06-2501-cv _______________________________
GREGORY DILLON,
Plaintiff-Appellant,
v.
CHRISTOPHER MORANO,
Defendant-Appellee. _______________________________
Before: STRAUB AND POOLER, Circuit Judges, and VITALIANO, District Judge.* _______________________________
Appeal from the United States District Court for the District of Connecticut (Covello, J.)
dismissing plaintiff-appellant Gregory Dillon’s First Amendment retaliation action.
AFFIRMED in part, VACATED in part, and REMANDED.
* The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation.
1 KAREN LEE TORRE, Law Office of Karen Lee Torre, New Haven, CT, for Appellant.
ALBERT ZAKARIAN (Robert C. McNamee, Douglas W. Bartinik, on the brief), Day Pitney LLP, Hartford, CT, for Appellee. _________________________________
POOLER, Circuit Judge:
Plaintiff-appellant Gregory Dillon appeals from the May 1, 2006, judgment of the United
States District Court for the District of Connecticut (Covello, J.) granting summary judgment in
favor of defendant-appellee Christopher Morano on Dillon’s claim that Morano allegedly
engaged in a series of adverse employment actions against Dillon as retaliation for Dillon’s prior
protected First Amendment activity. We vacate the judgment of the district court with respect to
Dillon’s claim that he was denied a promotion as retaliation for his First Amendment activity,
and remand this part of Dillon’s complaint for further proceedings. We affirm the remainder of
the district court’s decision.
BACKGROUND
Gregory Dillon is the Supervisory Inspector for the Workers’ Compensation Fraud
Control Bureau in the Office of the Chief State’s Attorney (“OCSA”) for the State of
Connecticut. Dillon, after working several years as a police officer and a special agent with the
FBI, was hired by the OCSA in 1990. Dillon began his career in the OCSA as an inspector in the
Economic Crime Unit, where he participated in two successful and high-profile corruption
investigations. In 1994, then-Chief State’s Attorney John Bailey assigned Dillon to create a new
unit called the Fugitive Unit. Bailey promoted Dillon to the position of Supervisory Inspector of
that unit in 1995. Dillon continued to receive excellent performance reviews and numerous
2 letters of commendation for his work. In 1996, Dillon brought to Bailey’s attention his belief
that several FBI agents, who worked with Dillon in the Connecticut Fugitive Task Force, were
submitting warrant applications containing false information to federal judges. Dillon reported
the misconduct to Bailey. After this report, Bailey allegedly engaged in a series of adverse
employment actions against Dillon. During this time, defendant-appellee Christopher Morano
was the Deputy Chief State’s Attorney.
On August 6, 1998, Dillon filed suit against Bailey in the District of Connecticut alleging
that Bailey’s actions were taken in retaliation against Dillon for engaging in protected First
Amendment activity. One of the primary adverse actions that Bailey had allegedly taken against
Dillon was his refusal to hire Dillon for the vacant position of Supervisory Inspector of the
Statewide Prosecution Bureau. Bailey instead awarded this position to Charles Coffey, who at
the time was an inspector in the Statewide Prosecution Bureau. Morano testified as a defense
witness in the Dillon v. Bailey lawsuit. Among other things, Morano testified that Bailey was
not involved in the decision to award the Statewide Prosecution Bureau position to Coffey, and
attempted to explain the rationale behind the decision to hire Coffey over Dillon. Morano
testified that he awarded the position to Coffey because he “felt it was important to promote from
within to bolster the morale so that the people who had been there during the dark days would
feel that there is some light at the end of the tunnel and it was worth sticking around. That was
the basis and the thinking that I had in selecting Mr. Coffey.” Morano gave similar testimony at
his deposition in the Dillon v. Bailey case: “[Coffey] had also worked in state wide prosecution
longer and understood the operations of that particular bureau; and often it is better, and I felt in
this particular situation it was better, to promote from within, someone who knew and had done
3 their time there.”
On November 25, 1998, the jury returned a verdict against Bailey on all counts. By
special interrogatory, the jury specifically found that Bailey had acted with retaliatory motive in
denying Dillon the position in the Statewide Prosecution Bureau. The jury awarded Dillon
compensatory damages of $800,000 and punitive damages in the amount of $1.5 million as well
as an additional $400,000 in compensatory damages with regard to Dillon’s separate claim
regarding a gag order Bailey had put in place. See Dillon v. Bailey, 45 F. Supp. 2d 167, 169 (D.
Conn. 1999). Dillon and Bailey agreed to settle the matter for $1.5 million.
On February 19, 1999, Dillon became Supervisory Inspector of the Gang & Continuing
Criminal Activity Bureau (“GCCAB”) in the OCSA, where he was involved in a corruption
investigation case that garnered wide-spread media attention and ended with the successful
prosecution of the suspects. Dillon continued to receive excellent performance reviews and
community recognition for his work.
In December 2002, Bailey retired from the OCSA and Morano was appointed the new
Chief State’s Attorney. Dillon alleges that Morano engaged in a series of adverse employment
actions against him as retaliation for pursuing his claims against Bailey. Specifically, Dillon
alleges the following: (1) Morano interfered with his 1997 performance evaluation by requesting
Dillon’s supervisor to make changes to the positive comments in the evaluation and then refusing
to sign the evaluation; (2) Morano stripped the GCCAB, Dillon’s unit, of essential personnel and
resources necessary to conduct their work even though the number of cases handled by the
GCCAB continued to grow during this time; (3) Morano relocated the GCCAB unit to a different
building and assigned Dillon to a cramped windowless office that he had to share with another
4 inspector, while every other supervisory inspector in the building, including those junior to
Dillon, received spacious, private, windowed offices; (4) Morano reassigned Dillon to the
position of Supervisory Inspector of the Elder Abuse Unit, which Dillon claims is the least
desirable unit in the OCSA; (5) Morano assigned Dillon the menial and clerical task of
organizing the evidence room; (6) Morano excluded Dillon from certain meetings of top staff and
administrative personnel that Dillon had previously attended; and (7) Morano failed to promote
Dillon to the position of Chief Inspector.
With respect to the Chief Inspector position, Dillon claims that upon learning that two
Chief Inspectors were planning to retire, he attempted to find vacancy postings for these
positions. Unable to find such postings, he then sent an email to Morano on May 14, 2003,
stating that he had learned there may be a vacancy for a Chief Inspector position, and expressing
his interest in applying for that position. Morano responded by email the same day and informed
Dillon that no such vacancy existed. On May 22, 2003, Morano issued a memorandum
announcing that Lawrence Skinner had been appointed as Chief Inspector for the Division of
Criminal Justice. This position was never posted, although Dillon states that virtually all State
positions, even those that are appointed, are routinely posted. Skinner has extensive experience
in law enforcement, but he has never worked for the OCSA.
On February 10, 2004, Dillon filed this lawsuit against Morano in the United States
District Court for the District of Connecticut. Dillon alleged that Morano’s interference with
Dillon’s performance evaluation, imposition of degrading work conditions and failure to promote
him constituted adverse employment decisions taken by Morano in retaliation for Dillon’s
lawsuit against Bailey. Morano moved for summary judgment on the following grounds: (1)
5 Morano’s actions were protected by legislative immunity; (2) Dillon had failed to make a prima
facia case of retaliation; and (3) Morano would have taken the same actions against Dillon
regardless of his speech activity. The district court first rejected Morano’s claim of immunity.1
The district court then found that Morano’s interference with Dillon’s performance review,
cramped office, transfer to the Elder Abuse Unit, assignment of organizing the evidence room,
and exclusion from certain meetings did not constitute adverse employment actions. With regard
to the reduction of staff and resources for the GCCAB, the district court found that while this
could constitute an adverse employment action, Dillon had failed to establish a causal connection
between this decision and Dillon’s protected speech activity. Finally, with regard to the failure to
promote claim, the district court found that Dillon had made a prima facie case of retaliation, but
Morano had met his burden of establishing that he would have hired Skinner even absent
Dillon’s protected speech activity. Accordingly, the district court granted summary judgment in
favor of Morano and dismissed the case in its entirety. Dillon filed a timely notice of appeal.
DISCUSSION
We review de novo the district court’s grant of summary judgment, viewing the record in
the light most favorable to the non-moving party. Treglia v. Town of Manlius, 313 F.3d 713,
718 (2d Cir. 2002). “In determining whether a case presents triable issues of fact, we, like the
district court, may not make credibility determinations or weigh the evidence, and we must
resolve all ambiguities and draw all permissible inferences in favor of the non-moving party.”
Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006) (internal citations omitted). “Summary
judgment is not appropriate where a review of the record reveals sufficient evidence for a rational
1 Morano does not challenge the district court’s denial of his immunity defense.
6 trier of fact to find in the plaintiff’s favor.” Treglia, 313 F.3d at 719.
In order to survive a motion for summary judgment on a First Amendment retaliation
claim, a plaintiff must bring forth evidence showing that he has engaged in protected First
Amendment activity, he suffered an adverse employment action, and there was a causal
connection between the protected activity and the adverse employment action. See Cotarelo v.
Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251 (2d Cir. 2006). If a plaintiff makes a
sufficient showing of each of these elements, summary judgment is not appropriate unless the
defendant establishes as a matter of law that he would have taken the same adverse employment
action even absent the protected conduct. Id. at 253.
Morano does not dispute that Dillon has engaged in protected activity. Morano instead
argues that Dillon has not established the other elements of a prima facie case of retaliation, and
even if he has, that Morano has shown that he would have taken the same actions regardless of
Dillon’s prior protected activity. With the exception of the failure to promote claim, we agree
that Dillon has failed to set forth a prima facie case of retaliation, but with regard to the failure to
promote claim, we find that Dillon has presented sufficient evidence from which a rational trier
of fact could rule in his favor. Accordingly, we vacate and remand the failure to promote claim,
and affirm the remainder of the district court’s decision.
Failure to Promote to Chief Inspector
Dillon has sufficiently set forth a prima facie case of retaliation with regard to the failure
to promote claim. Morano does not dispute that denying an employee a promotion is an adverse
employment action, and sufficient evidence exists in the record to “warrant the inference that the
protected speech was a substantial motivating factor in the adverse employment action.”
7 Cotarelo, 460 F.3d at 251 (internal quotation marks omitted). First, the record contains evidence
that Morano had openly displayed animus towards Dillon because of Dillon’s previous conduct
in reporting the FBI wrongdoing and pursuing his lawsuit against Bailey. Dillon states in his
affidavit that after his allegations against the FBI agents became public, he and members of his
squad were summoned by Bailey and Morano for a meeting. At this meeting, Morano was
reportedly very angry that the newspapers had learned of the incident, and he allegedly told
Dillon and the other inspectors that they had “stuck it up [his] ass” and that “this will affect the
way I treat certain employees in the future. It is too bad it has to be this way - - you betrayed my
trust and I won’t make that same mistake in the future.” Although this statement was made
before the Dillon v. Bailey lawsuit, it provides support for Dillon’s contention that Morano
harbored hostile animus towards him, particularly when viewed in conjunction with the other
piece of direct evidence of animus contained in the record. Richard Palombo, who was Dillon’s
supervisor while he was at the GCCAB, testified at his deposition that some time after the jury
returned a verdict in Dillon v. Bailey, he went to Morano to get a routine request from Dillon
approved. Palombo testified that Morano’s response to this request was: “Why should I do
anything for [Dillon] after what he did to [Bailey].” Palombo further testified that Morano then
allegedly stated that Dillon had ruined or destroyed Bailey. Palombo also testified that the
request he had brought from Dillon for Morano’s approval was denied, and Morano told
Palombo to falsely convey to Dillon that the reason for the denial was budgetary constraints.
In addition, the record contains circumstantial evidence from which the jury could infer
that Morano had passed over Dillon for the Chief Inspector position because of retaliatory
animus towards him. For instance, the record suggests that Morano departed from the usual
8 hiring practice when filling the Chief Inspector position. It is undisputed that the vacancy for the
Chief Inspector position was never posted. Although Morano contends that non-union positions
need not be posted, there is no evidence in the record, other than Morano’s statement, that the
Chief Inspector position is not posted as a matter of practice. The record, in fact, indicates that
other non-union exempt positions, including for example the Chief State’s Attorney position, had
been posted in the past. Morano was unable to provide any specific example of a position that is
not posted as a matter of practice. The record also shows that the Personnel Office and Morano’s
Deputy Chief State’s Attorney had prepared a vacancy posting for the Chief Inspector position
until Morano decided no posting was necessary. This departure from the usual hiring practice
provides evidentiary support for Dillon’s claim that the true reason for Morano’s decision was
retaliation. See, e.g., Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312-13 (2d Cir. 1997)
(university’s hiring decision that departed from usual hiring practices probative of claim that
alleged neutral reason was pretextual).
The record also indicates that when Dillon inquired about a vacancy in the Chief
Inspector position, Morano directly stated to him that there was no Chief Inspector position
available. Dillon emailed Morano on May 14, 2003, inquiring whether there was a vacant Chief
Inspector position and expressing an interest in applying for that position. He was specifically
told by Morano that no such vacancy existed. But Morano also testified that he knew Chief
Inspector Best was retiring and he had already spoken to Skinner about filling this position. In
addition, emails dated May 8, 2003, establish that Morano’s Deputy Chief State’s Attorney was
in contact with the Personnel Office to prepare a vacancy posting for the Chief Inspector
position. Morano further testified that he never contacted Dillon again to let him know there was
9 a vacancy in the Chief Inspector position. A jury could reasonably find from this evidence that
Morano deliberately misled Dillon regarding the status of the Chief Inspector position. While
Morano provides an explanation for his statements to Dillon and attempts to show that they were
in fact true at the time they were made, it is the jury’s task to determine whether to credit that
explanation.
In addition, Morano’s hiring practice with regard to the Chief Inspector position arguably
conflicts with the testimony he gave in the Dillon v. Bailey lawsuit when he attempted to provide
a legitimate non-retaliatory reason for denying Dillon the position in the Statewide Prosecution
Bureau. In the Bailey lawsuit, Morano testified in a deposition that the reason he passed over
Dillon was because he felt it was preferable to “promote from within.” Morano reiterated this
point at trial, testifying that Mr. Coffey was the more desirable candidate for the position because
Coffey “had worked in that [unit] for some period of time” and he “felt it was important to
promote from within.” This was the legitimate non-retaliatory justification presented in the
Bailey lawsuit to explain denying the position to Dillon. Yet with regard to the Chief Inspector
position, Morano did not “promote from within” but rather hired someone who had never worked
in the OCSA. Drawing all inferences in favor of Dillon at this stage of the proceedings, a
reasonable jury could conclude that Morano’s reasons for denying promotions to Dillon were in
reality post-hoc rationalizations to hide the improper motives that actually prompted his
decisions. While Morano has offered explanations that would reconcile his actions here with his
testimony in the Bailey lawsuit, we cannot find as a matter of law that a jury would be compelled
to credit those explanations.
Based on the evidence in the record and drawing all reasonable inferences in favor of
10 Dillon, a jury could conclude that Morano’s animus towards Dillon because of Dillon’s prior
lawsuit against Bailey was a substantial motivating factor in Morano’s refusal to promote Dillon
to Chief Inspector. The district court, although recognizing that Dillon had set forth a prima
facie case of retaliation, nevertheless granted summary judgment in favor of Morano because it
found that “Morano has shown by a preponderance of the evidence that he would have hired
Skinner even absent Dillon’s protected speech.” The district court based this conclusion on the
fact that Skinner was qualified for the position of Chief Inspector and “Morano states he did not
consider any candidates beside Skinner and that their long-standing relationship was an
important reason for hiring him.” By focusing its analysis on whether the record contained
evidence to support Morano’s contention that he would have hired Skinner regardless of Dillon’s
prior protected activity, the district court misconstrued the burden Morano bore at the summary
judgment stage. Morano is not entitled to summary judgment because a jury could rule in his
favor. Rather, Morano must establish that no reasonable jury, viewing the evidence in the light
most favorable to Dillon and drawing all inferences in Dillon’s favor, could return a verdict in
Dillon’s favor. See Capobianco v. City of N. Y., 422 F.3d 47, 54 -55 (2d Cir. 2005) (court of
appeals may affirm grant of summary judgment “only if we conclude that on the record
presented, considered in the light most favorable to [plaintiff], no reasonable jury could find in
his favor”). Here, the only evidence regarding Morano’s allegedly legitimate reasons for hiring
Skinner over Dillon comes from Morano’s own testimony that Skinner was always his only
choice for the job, he considered no other candidates for the position, and he chose Skinner
because he had known him for many years. A jury is under no obligation to find Morano
credible or find this explanation believable. Instead, based on (1) the evidence that Morano had
11 openly displayed animus towards Dillon because of his lawsuit against Bailey; (2) the fact that
Morano’s conduct in filling the Chief Inspector position appeared to be at odds with the sworn
testimony he gave in Dillon v. Bailey regarding his then preference to promote from within; (3)
Morano had departed from the customary practice of posting job vacancies; and (4) Morano’s
affirmative misrepresentation to Dillon regarding the unavailability of the Chief Inspector
position, a jury could conclude that Morano’s allegedly legitimate reasons for hiring Skinner
were pretextual and post-hoc rationalizations for his retaliatory conduct against Dillon. Because
the determination of whether Morano would have hired Skinner regardless of Dillon’s prior
protected activity turns largely on Morano’s credibility, we find that a genuine issue of material
fact exists precluding summary judgment. See Reeves v. Johnson Controls World Servs., Inc.,
140 F.3d 144, 157 (2d Cir. 1998) (“To the extent that these inconsistencies can only be resolved
based upon credibility determinations, such questions of witness credibility are to be decided by
the jury.”); United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) (“Resolutions of credibility
conflicts and choices between conflicting versions of the facts are matters for the jury, not for the
court on summary judgment.”). Accordingly, we vacate the district court’s grant of summary
judgment with respect to the failure to promote claim and remand for further proceedings.
Dillon’s Remaining Claims
With respect to the remaining alleged adverse actions taken by Morano, however, we
affirm the district court’s grant of summary judgment. We agree with the district court that
Morano’s refusal to sign Dillon’s 1997 performance review, the transfer to the Elder Abuse Unit,
the assignment of organizing the evidence room, and Dillon’s exclusion from certain meetings
did not constitute adverse employment actions. We clarify, however, that the proper legal test in
12 determining whether an employment action is adverse in First Amendment retaliation cases is
whether the alleged acts “would deter a similarly situated individual of ordinary firmness from
exercising his or her constitutional rights.” Zelnick v. Fashion Inst. of Tech., 464 F.3d 217, 225
(2d Cir. 2006) (internal quotation marks omitted). Zelnick post-dates the district court’s decision
in this case, and thus the district court applied the standard announced in our decision in Galabya
v. N.Y. City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000), which defined an adverse employment
action as a “materially adverse change in the terms and conditions of employment.” Id. at 240
(internal quotation marks omitted). As we explained in Zelnick, Galabya, which involved an age
discrimination claim, applied a “more demanding” standard than the one this court applies in
First Amendment retaliation cases. Zelnick, 464 F.3d at 225. Accordingly, “[b]y focusing on
‘material adverse changes’ in [plaintiff’s] employment, rather than on the effect of [defendant’s]
actions on the exercise of free speech rights of a ‘person of ordinary firmness,’” id. at 227, the
district court did not apply the correct standard in evaluating Dillon’s allegations of adverse
employment actions. Nevertheless, as in Zelnick, “th[is] error is of no consequence,” id.,
because even applying the proper test from Zelnick, we find that the alleged acts do not
constitute adverse employment actions.
While we do not foreclose the possibility that the assignment of “menial” tasks may
constitute adverse employment action, based on the undisputed facts presented in this case, we
cannot conclude that a reasonable jury could find the action alleged here was an adverse
employment action. While Dillon was understandably upset with being assigned clerical tasks
that he viewed as beneath his position, under the circumstances presented in this case, this
incident would not chill “a person of ordinary firmness” from exercising his free speech rights.
13 See Zelnick, 464 F.3d at 226 (noting that alleged retaliatory acts must be “more than de minimis”
to constitute adverse employment actions). Furthermore, although we have found that the
transfer from an “elite” unit to a “less prestigious” unit could constitute adverse employment
action, cf. De la Cruz v. N.Y. City Human Res. Admin. Dep’t of Social Servs., 82 F.3d 16, 21
(2d Cir. 1996) (finding in employment discrimination case that transfer from elite division could
constitute adverse action), Dillon has presented no evidence aside from his own personal opinion
that the Elder Abuse Unit is the “least desirable” unit in the OCSA. Similarly, Dillon also fails
to present any evidence indicating that any negative consequences resulted from Morano’s
“interference” with his performance review or his exclusion from certain meetings. It is
undisputed that the review was never changed to include any negative comments, and there is no
indication that any adverse action occurred based on Morano’s refusal to sign the review. There
is similarly nothing in the record to indicate that Dillon was disadvantaged in any way by the
alleged exclusion from staff meetings, particularly because Supervisory Inspectors were generally
not invited to these meetings. Accordingly, we affirm the grant of summary judgment with
respect to Dillon’s claim that Morano engaged in retaliatory conduct with regard to assigning
Dillon to organize the evidence room, transferring Dillon to the Elder Abuse Unit, interfering
with Dillon’s 1997 performance review, or excluding Dillon from certain staff meetings.
We also affirm the district court’s grant of summary judgment with respect to Dillon’s
claim that Morano engaged in retaliatory conduct when he reallocated resources from the
GCCAB and significantly reduced the personnel in that unit, and, as part of that reallocation,
forced Dillon to share a cramped, windowless office. The district court found that while this
decision was an adverse employment decision, Dillon had failed to present any evidence that his
14 prior lawsuit was a substantial motivating factor in that action. Dillon does not challenge this
aspect of the district court’s decision in his brief to this court, and thus we find this issue waived.
See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in
the briefs are considered waived and normally will not be addressed on appeal.”). Moreover,
even if we were to review the merits, we would affirm this aspect of the district court’s decision.
It is undisputed that the reduction and ultimate disbandment of the GCCAB occurred during an
office-wide reorganization during which time several actions were taken affecting a number of
employees. Indeed, Dillon’s direct supervisor, Richard Palombo, was also required to share a
windowless office in the same location. Dillon has not presented evidence that this reallocation
of resources was targeted at him, or any other evidence from which one could infer that Morano
made these various decisions affecting numerous other people in order to retaliate against Dillon.
Thus, Dillon has failed to set forth a prima facie case of retaliation with respect to these alleged
adverse actions and summary judgment in favor of Morano on this claim is appropriate.
CONCLUSION
For the foregoing reasons, we vacate the district court’s grant of summary judgment with
respect to Dillon’s failure to promote claim and remand that claim for further proceedings. We
affirm the judgment of the district court with regard to Dillon’s remaining contentions.