Morales v. City of New York

Opinion

21-925-cv Morales v. City of New York, et al.

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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 21st day of July, two thousand twenty-two. 4 5 PRESENT: 6 BARRINGTON D. PARKER, 7 JOSEPH F. BIANCO, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 RICARDO MORALES, 13 14 Plaintiff-Appellant, 15 16 v. 21-925-cv 17 18 CITY OF NEW YORK, a municipal entity, 19 MAYOR BILL DE BLASIO, LISETTE CAMILO, 20 DEPARTMENT OF CITYWIDE 21 ADMINISTRATIVE SERVICES, 22 23 Defendants-Appellees. 24 _____________________________________ 25 26 FOR PLAINTIFF-APPELLANT: Robert D. Kraus and Geoffrey A. Mort, 27 Kraus & Zuchlewski LLP, New York, NY. 28 29 FOR DEFENDANTS-APPELLEES: Richard Dearing, Melanie T. West, and 30 MacKenzie Fillow, for Georgia M. Pestana,

2

1 Corporation Counsel of the City of New York, 2 New York, NY. 3 4 Appeal from a judgment of the United States District Court for the Southern District of

5 New York (Koeltl, J.). 6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 7 DECREED that the order of the district court is AFFIRMED. 8 Plaintiff-appellant Ricardo Morales (“Morales”), the former Deputy Commissioner of the 9 New York City Department for Citywide Administrative Services (“DCAS”), appeals from a 10 judgment of the district court (Koeltl, J.) granting summary judgment in favor of the City of New 11 York (the “City”), DCAS, and individual defendants-appellees former Mayor Bill de Blasio 12 (“Mayor de Blasio”) and former DCAS Commissioner Lisette Camilo (“Camilo”), on his First 13 Amendment retaliation claim under 42 U.S.C. § 1983. Morales alleges that he was terminated 14 from his position as DCAS’s Deputy Commissioner of Asset Management, in violation of the First 15 Amendment, because he provided unfavorable statements to investigators during interviews 16 regarding the City’s involvement in two transactions made during his tenure: (1) negotiations 17 involving the renewal of a leasehold to Water’s Edge, a Long Island City restaurant; and (2) the 18 sale of the Rivington House property in the city’s Lower East Side following the lifting of its deed 19 restrictions. Each transaction became the subject of multiple inquiries and investigations, 20 including ones by the New York City Council, the Office of the New York City Comptroller, the 21 City Department of Investigation (“DOI”), the United States Attorney’s Office for the Southern 22 District of New York, and the Federal Bureau of Investigation. 23 The district court granted the defendants’ motion for summary judgment, concluding that 24 Morales’s statements during the investigative interviews (one of which was under oath) were made 25 in furtherance of his position as an employee of the City—not as a private citizen—and therefore

3

1 were not protected by the First Amendment. Furthermore, the district court held that Morales 2 failed to show that a causal connection existed between his cooperation with investigators and his 3 later discharge, and, in any event, defendants provided sufficient evidence to establish that Morales 4 would have been terminated for other reasons even in the absence of the speech at issue. 5 Because we agree that no reasonable juror could find that Morales’s testimony was the but- 6 for cause of his termination, we affirm. 1 We assume the parties’ familiarity with the underlying 7 facts, procedural history, and issues on appeal, to which we refer only as necessary to explain our 8 decision to affirm.

9 DISCUSSION 10 11 A district court’s grant of summary judgment is reviewed de novo. Spak v. Phillips, 857

12 F.3d 458, 461 (2d. Cir. 2017). “[A]ll ambiguities and inferences to be drawn from the underlying 13 facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence 14 of a genuine issue for trial should be resolved against the moving party.” Bay v. Times Mirror 15 Mags., Inc., 936 F.2d 112, 116 (2d Cir. 1991) (quoting Brady v. Town of Colchester, 863 F.2d 205, 16 210 (2d Cir. 1988)). Summary judgment is appropriate only where “the movant shows that there 17 is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 18 law.” Fed. R. Civ. P. 56(a). 19 To prevail on a First Amendment retaliation claim, a plaintiff must establish that protected 20 speech was a but-for cause of some adverse employment action. See Morris v. Lindau, 196 F.3d 21 102, 110 (2d Cir. 1999) (“The causal connection must be sufficient to warrant the inference that 22 . . . the adverse employment action would not have been taken absent the employee’s protected 23 speech.”). “Causation can be established either indirectly by means of circumstantial evidence,

1

Because we affirm on the grounds that no reasonable juror could find that retaliation was the but-for cause of Morales’s termination, we need not decide whether Morales engaged in any protected speech.

4

1 for example, by showing that the protected activity was followed by adverse treatment in 2 employment, or directly by evidence of retaliatory animus.” Id. “[A] plaintiff may not rely on 3 conclusory assertions of retaliatory motive to satisfy the causal link. Instead, he must produce 4 some tangible proof to demonstrate that his version of what occurred was not imaginary.” Cobb 5 v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (internal quotation marks, citations, and alterations 6 omitted). 7 Morales concedes that he has not produced any direct evidence of retaliatory animus. 8 Instead, Morales relies on the five-month span between his allegedly protected speech in June of 9 2016—providing sworn testimony about the Rivington House and Water’s Edge transactions to 10 the City-retained law firm Carter, Ledyard & Millburn (“Carter Ledyard”)—and the final decision 11 to terminate him in November of 2016. The timing of an adverse employment action, however, is 12 not evidence of causation where the employer began considering the action before the allegedly 13 protected activity took place. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272–73 (2001) 14 (per curiam). Here, Camilo testified that she was seriously considering terminating Morales in the 15 spring of 2016, before Morales participated in the June 2016 Carter Ledyard interview. Camilo’s 16 deputy, Emily Newman, corroborated this account, testifying that Camilo discussed terminating 17 Morales at least as soon as Newman joined DCAS in May of 2016. Camilo also emailed in March 18 of 2016 that she was “considering making some changes to DCAS senior team” and flagged 19 Morales’s name for review by City Hall. Joint App’x at 31. While Morales argues that the decision 20 to terminate him was not definitive until the fall of 2016, he does not dispute that Camilo was 21 considering terminating him by spring of 2016. The temporal relationship between Morales’s 22 testimony and his termination is therefore “immaterial” because an employer’s decision to 23 “proceed[] along lines previously contemplated, though not yet definitively determined, is no

5

1 evidence whatever of causality.” Breeden, 532 U.S. at 272; cf. Nagle v. Marron, 663 F.3d 100, 2 110 (2d Cir. 2011) (“[A]n employer cannot insulate itself from liability at the summary judgment 3 stage simply by asserting that an adverse employment decision had in fact already been made, 4 without being memorialized or conveyed to anyone, before the employer learned of the protected 5 conduct.” (emphasis added)). 6 CONCLUSION 7 We find that the district court did not err in entering summary judgment for defendants 8 because a reasonable juror could not find that Morales’s testimony was the but-for cause of his 9 termination. We have reviewed Morales’s remaining arguments and find them to be without merit. 10 Accordingly, we AFFIRM the order of the district court.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk of Court