George v. City of Buffalo
Filing
113
DECISION AND ORDER granting in part and denying in part 84 Motion for Summary Judgment; adopting in part Report and Recommendations re 97 Report and Recommendations consistent with this Decision and Order. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/31/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM GEORGE,
Plaintiff,
DECISION and ORDER
No. 1:09-cv-00002(MAT)
-vsCITY OF BUFFALO,
Defendant.
INTRODUCTION
William
George
(“Plaintiff”),
represented
by
counsel,
instituted this action claiming age discrimination and violation of
his First Amendment rights by his employer, the City of Buffalo
(“the City”). This matter is before the Court upon the Report and
Recommendation, dated January 9, 2014, issued by Magistrate Judge
Leslie G. Foschio (“the R & R”) granting partial summary judgment
to the City.
BACKGROUND
Plaintiff, a seasonal laborer with the City’s Department of
Public Works, Parks and Streets (“DPW”), commenced this lawsuit in
2009, claiming that the City engaged in age discrimination in
violation of the Age Discrimination in Employment Act (“ADEA”)
because it failed to appointment him to an unspecified permanent
position.1 In 2011, Plaintiff was granted leave to amend his
1
Plaintiff testified at his deposition that he was unsure what permanent position
he was seeking. The R&R determined that Plaintiff was seeking a permanent “Laborer II”
position, which the City indicates is a non-competitive position, which does not require
an examination and is a discretionary appointment.
complaint (“Corrected Amended Complaint”) to add a First Amendment
political affiliation claim under 42 U.S.C. § 1983 (“Section
1983”), in which Plaintiff alleged that the City failed to appoint
him to a permanent position on account of his refusal to change his
political affiliation to the Democratic party and provide political
support to Mayor Byron Brown.
The City moved for summary judgment in 2012 with regard to
both the ADEA and First Amendment claims. Plaintiff thereafter
withdrew his ADEA claim but opposed summary judgment as to his
First Amendment claim.
The R&R recommended dismissing the City’s motion for summary
judgment as moot with respect to the ADEA claim; granting the
City’s motion with respect to Plaintiff’s New York State Human
Rights Law (“NYSHRL”) claim; and denying the City’s motion with
respect to Plaintiff’s First Amendment claim.
The
City
timely
filed
objections
(Defendant’s Objections
(“Def’s Obj.”) (Dkt #98-2). Plaintiff filed a memorandum of law in
opposition to Defendant’s objections. At the request of the Court
(Arcara, D.J.), the parties supplied additional briefing on the
Supreme Court’s recent decision in Heffernan v. City of Paterson,
N.J., 136 S. Ct. 1412 (2016).
STANDARD OF REVIEW
“In reviewing the R & R of a dispositive matter from a
magistrate judge, the district court ‘may adopt those portions of
the Report to which no objections have been made and which are not
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facially erroneous.’” Nansaram v. City of N.Y., No. 12-CV-5038 NGG
RLM, 2015 WL 5518270, at *2 (E.D.N.Y. Sept. 17, 2015) (quotation
and citation omitted); see also FED. R. CIV. P. 72(b), Advisory
Comm. Notes (when a party makes no objection, or only general
objections to a portion of an R & R, the district judge reviews it
for
clear
error
or
manifest
injustice).
An
R&R
is
“clearly
erroneous” when the court is, “upon review of the entire record,
left with the definite and firm conviction that a mistake has been
committed.” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006).
To preserve a claim for review by the district court, the
party must make sufficiently specific objections to the R & R.
E.g., Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002). When, however, a party makes specific objections, the
district judge must undertake a “de novo determination of those
portions
of
the
recommendations
report
to
or
which
specified
objection
is
proposed
made[,]”
findings
28
or
U.S.C.
§ 636(b)(1)(C), and “may . . . receive further evidence[.]” Id.;
see also Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989)
(discussing § 636(b)(1)(B)).
DISCUSSION
I.
Erroneous Finding of a Triable Issue of Fact on the “Protected
Activity” Element (Def’s Obj. 1)
“To succeed on a First Amendment claim brought pursuant to
Section 1983, a plaintiff must be able to demonstrate that (1) the
conduct at issue was constitutionally protected, (2) the alleged
-3-
retaliatory
action
adversely
affected
his
constitutionally
protected conduct, and (3) a causal relationship existed between
the constitutionally protected conduct and the retaliatory action.”
Wrobel v. Cnty. of Erie, 692 F.3d 22, 27 (2d Cir. 2012) (citation
omitted).
Plaintiff
maintains
that
his
failure
to
affirmatively
undertake political activity–in essence, his decision to remain
apolitical—is constitutionally protected activity. The City, on the
other
hand,
argues
that
Plaintiff
has
not
engaged
in
any
politically protected activity, because he was not politically
active. Furthermore, the City notes, Plaintiff did volunteer on
behalf of Mayor Brown’s re-election campaign in the fall of 2009,
and on one other date he cannot remember.
The R & R found that there was an issue of fact as to the
first element of a First Amendment retaliation claim “insofar as
Plaintiff
engaged
in
constitutionally
protected
activity
by
refusing to register as a Democrat and refusing to make financial
contributions to Mayor Brown’s political campaign.” (R & R at 22).
A “refusal” presupposes some kind of request or demand. However,
the City argues, there is no evidence in the record that any City
employee demanded or requested Plaintiff change his political
affiliation or donate to the mayoral campaign; that any person
involved in the Laborer II hiring process was aware of Plaintiff’s
alleged refusal; or that Plaintiff actually refused to register as
a Democrat or make financial contributions to the Mayor’s campaign.
-4-
(See Def’s Obj. at 6 (“Second Circuit precedent makes clear that
opting to be apolitical or refusing to provide political support
may constitute protected activity, but only if the plaintiff
exercises this right in response to pressure to become political or
provide support.”) (citing Wrobel, 692 F.3d at 29).
In
Wrobel,
Amendment
is
quintessential
the
Second
“violated
political
Circuit
when
explained
state
patronage[.]”
that
officials
Id.
at
the
First
engage
27
in
(collecting
cases). And, as the Second Circuit has observed, First Amendment
protection “has been extended to politically neutral employees who
are treated less favorably than employees politically aligned with
those in power[.]” Id. (collecting cases); see also Wrobel v. Cnty.
of Erie, 211 Fed. Appx. 71, 72 (2d Cir. 2007) (unpublished opn.)
(finding that the plaintiff adequately pled associational conduct
(not pledging support for the new administration and choosing not
to
affiliate
himself
politically
with
it);
stating
that
“retaliation for such conduct, if adequately proven, could give
rise to Section 1983 liability”). Plaintiff thus is correct that an
employee is not stripped of protection under the First Amendment’s
association clause simply because he chooses to remain apolitical
or to not engage in political activism. See generally, Rutan v.
Republican Party of Illinois, 497 U.S. 62, 76 (1990) (“The First
Amendment prevents the government, except in the most compelling
circumstances, from wielding its power to interfere with its
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employees’ freedom to believe and associate, or to not believe and
not associate.”).
The City asserts, however, that in Wrobel, the Second Circuit
“cautioned that a plaintiff who was never asked to donate to,
volunteer for, or lend support to any political candidate has not,
as a matter of law, engaged in protected activity[.]” (Def’s Obj.
at 6). The Court finds that this statement somewhat misrepresents
the passage from Wrobel on which it purports to rely. Specifically,
the language the City quotes from Wrobel appears in the Second
Circuit’s discussion of the causation element of a First Amendment
claim. See Wrobel, 692 F.3d at 28 (“The dispositive issue for
Wrobel’s free association claim is the causal relationship between
the association identified [i.e., failure to pledge support to the
new administration] and his transfer.”). To a certain extent, then,
Defendant’s First Objection conflates Wrobel’s teachings on the
protected activity and causation elements in a First Amendment
association claim.
Accordingly, the Court agrees with Defendant
that Plaintiff has failed to establish “causation,” as discussed
further below in Section II.
II.
Erroneous Finding of a Triable
“Causation” Element (Def’s Obj. 2)
Proving
causation
in
a
First
Issue
Amendment
of
Fact
on
association
the
case
requires a showing by the plaintiff that his “protected conduct was
a substantial or motivating factor[,]” Coogan v. Smyers, 134 F.3d
479, 484 (2d Cir. 1998), on the part of the defendant. The R & R
acknowledged that there is no evidence that the City knew who
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Plaintiff was or was aware of his political views. Similarly, the
R & R did not cite any evidence suggesting that the City failed to
appoint Plaintiff to a permanent position because of his political
beliefs. The R & R instead found that the fact the Mayor and the
City’s other witnesses did not know who Plaintiff was, actually
helped his claim. The R & R surmised that the City could not and
would not have known of Plaintiff on account of his failure to
provide financial support to the Mayor’s re-election campaign. (See
R&R at 38 (“[T]hat Mayor Brown denies knowing, prior to the
commencement
consistent
of
with
the
instant
Plaintiff’s
action,
testimony
who
that
Plaintiff
was,
Plaintiff’s
is
name,
because of Plaintiff’s political affiliation and failure to make
financial contributions to Mayor Brown’s political campaign, was
never placed on any list of persons recommended for appointment to
a permanent laborer position.”)).
As an initial matter, the Court notes that while Plaintiff did
not contribute financially, he did support Mayor Brown’s campaign
in other ways. In 2009, Plaintiff and his son went to Mayor Brown’s
campaign headquarters to volunteer. The campaign organizers advised
Plaintiff that under New York State’s election law, he had to be a
registered Democrat in order to circulate designating petitions for
Mayor Brown, a Democrat.
The campaign organizers explored other
ways Plaintiff could help, and subsequently connected him with a
staffer, whom Plaintiff drove around the City while the staffer
petitioned for the Mayor. At his deposition, Plaintiff described
-7-
the experience as “fun.” (Pl’s Dep. at 174-75). Plaintiff gave his
phone number to the staffer and told him to call him if the staffer
needed more help. The staffer did call Plaintiff one other time,
but Plaintiff was unavailable due to a prior
engagement. No one
from the Mayor’s re-election campaign contacted Plaintiff after
that. (Pl’s Dep. at 174-75, 226-27). In addition, on a date he
cannot recall, Plaintiff handed out flyers in support of Mayor
Brown’s re-election campaign after work. (Pl’s Dep. at 58-60).
The R & R acknowledged these activities on Plaintiff’s part in
support of the Mayor’s administration, but found that a reasonable
jury could conclude they were “interpreted by Defendant as refusing
to sufficiently engage in expected political activity required to
further Plaintiff’s career.” (R & R at 22). This finding rests on
speculation, since there is no evidence that anyone from the City
“interpreted” Plaintiff’s conduct to mean anything at all, let
alone that he was insufficiently loyal to the current mayoral
administration. The R & R relied on the hearsay statement by former
DPW administrator Charles Masi (“Masi”) that “some people”—who were
never
identified
by
Masi—believed
appointments
were
made
for
political reasons. Later in his deposition, Masi testified that
while at the DPW, he had “seen many people who contribute[d] [to
political campaigns] not be promoted and some who didn’t contribute
be promoted.” (Masi Dep. at 48). He qualified this by stating that
it did not occur “at the employee level, but at the higher levels.”
-8-
(Id.). However, he could “not factually” give any examples of that
occurring at higher levels; he stated that he “formed [his] opinion
on hearsay.” (Id.). Thus, even accepting Masi’s belief, based on
hearsay, that patronage was occurring, he stated that he did not
observe it at the “employee level,” where Plaintiff, a seasonal
laborer with the DPW, would have been located in the City’s
organizational hierarchy.
The Court does not agree that Morin v. Tormey, 626 F.3d 40
(2d 2010), provides support for the R & R’s conclusion that
Plaintiff met his burden of proof on causation. In Morin, the
Second Circuit held that the First Amendment applies to plaintiffs
“perceived by those retaliating to be apolitical or insufficiently
politically loyal.” Id. at 44. The Circuit then applied this
principle to a plaintiff who had refused to accede to demands by
the defendants to spy on the defendants’ political opponents.2
Here, in contrast, Plaintiff has not pointed to any evidence in the
record that any City employee demanded, requested, or suggested
that Plaintiff change his political affiliation or donate to the
mayoral campaign; that any person involved in the Laborer II hiring
2
In Morin, the plaintiff was an employee of the New York State Unified Court
System. Defendants Tormey, a judge, and Voninski, his assistant, demanded that
Morin “provide negative information about [Tormey’s opponent] Judge Klim with
respect to his upcoming judicial election for Supreme Court” and “ordered [her]
to ‘dish dirt’ on Judge Klim.” They requested her “to monitor Judge Klim’s
activities and to report his ‘comings and goings.’” Morin replied that it was not
her position “to spy on judges during a judicial election” and that “it was
repeatedly emphasized to me that I was not to engage in political activity
involving the courts.” Hearing her response, Tormey and Voninski “became visibly
angry,” and Tormey “directed [her] to ‘get out of [his] office!’” Morin, 626 F.3d
at 42 (alterations in original).
-9-
process was aware of Plaintiff’s alleged refusal; or that Plaintiff
actually refused to register as a Democrat or make financial
contributions to the Mayor’s campaign. Given that there were no
demands or requests made to Plaintiff to financially contribute to,
or otherwise assist, the Mayor’s political campaign, his case thus
is distinguishable from Morin.
The Second Circuit’s decision in Wrobel provides further
support for finding Morin to be inapplicable where, as here, there
were no demands or pressures upon Plaintiff to engage in, or
increase his current level of, political activism. In Wrobel, the
Circuit noted that while “[t]he record [did] support Wrobel’s
assertion that he did not pledge support for or politically align
himself with the Giambra administration[,]” [t]hat association . .
. is a non sequitur in the context of this case[,]” because “Wrobel
was never asked to donate to, volunteer for, or lend support to any
political candidate when Naylon was his supervisor.” Wrobel, 692
F.3d at 29. The Second Circuit concluded in Wrobel that the
plaintiff had “not sustained his burden at summary judgment of
creating a genuine issue of fact as to whether his mistreatment was
the
result
of
his
lack
of
political
allegiance
to
the
new
administration.” The Second Circuit explained that “[i]t is not
enough for Wrobel to show mistreatment coupled with political
abstention—there must be some evidence that the two are related, or
an available inference that it is so.” However, inferences that are
supported by mere “speculation or conjecture will not defeat a
-10-
summary judgment motion.” McDonald v. Vill. of Winnetka, 371 F.3d
992, 1001 (7th Cir. 2004).
In justifying finding an inference of retaliation, the R & R
focused extensively on the deposition testimony of various City
witnesses regarding the process of identifying individuals to be
considered for permanent appointments to the Laborer II position.
(See R & R at 23-39). The R & R noted that “[s]ignificantly, none
of Defendant’s deposed witnesses was able to indicate who made
decisions on appointments to vacant positions, including permanent
laborer positions to which Plaintiff sought appointment.”3 (R & R
at 38). However, this lack of clarity on the part of the City’s
witnesses does not bear upon, or illuminate, the issue of causation
in Plaintiff’s case in particular.
III. Erroneous Finding of a Trial Issue of Fact as to Municipal
Liability (Def’s Obj. 3)
The City is the only defendant in this lawsuit. Accordingly,
Plaintiff cannot premise Section 1983 liability on a respondeat
superior theory. See Roe v. City of Waterbury, 542 F.3d 31, 36
(2d
Cir.
2008)
(“The
Supreme
Court
has
made
clear
that
‘a
municipality cannot be made liable’ under § 1983 for acts of its
employees
‘by
application
of
the
doctrine
of
respondeat
superior.’”) (quotation and citation omitted).
3
Plaintiff acknowledged at his deposition that he had “not applied in
writing for any permanent position.” (Pl’s Dep. at 156).
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In order to prevail on a claim against a municipality under
Section 1983 based on acts of a public official, a plaintiff is
required to prove the following: “(1) actions taken under color of
law; (2) deprivation of a constitutional or statutory right;
(3) causation; (4) damages; and (5) that an official policy of the
municipality
caused
the
constitutional
injury.”
Id. (citation
omitted). The “official policy” element “can only be satisfied
where a plaintiff proves that a ‘municipal policy of some nature
caused a constitutional tort.’” Id. (quotation omitted; emphasis
supplied).
The R & R found that Plaintiff had submitted “sufficient
evidence on which a reasonable jury could find that the City’s
failure to appoint Plaintiff to a permanent laborer position
occurred pursuant to a policy promulgated by either Mayor Brown or
First Deputy Mayor Steven Casey[.]” (R & R at 14). In support of
this finding, the R & R did not rely on Mayor Brown’s testimony,
and the Deputy Mayor was not deposed in this action. Instead, the
R & R relied on the testimony of Masi and former Superintendent of
Streets and Sanitation Robert Battaglia (“Battaglia”) to conclude
that hiring decisions regarding permanent appointments were made by
the Mayor’s Office, and therefore must have been based on political
considerations. (See R & R at 16 (“Masi’s attributing the selection
of
such candidates
to
the
Mayor’s
Office[ ]
establishes
the
existence of an issue of fact as to whether such appointments were
made pursuant to a policy created by the Mayor’s Office to favor
-12-
candidates who were active on behalf of Democratic candidates, and
especially supportive of Mayor Brown.”)). The Court cannot find
this conclusion to be supported by anything more than conjecture.
The fact that the Mayor’s Office, without more, was involved in
making employee appointments does not establish a triable issue of
fact regarding the existence of a municipality-wide policy of
discrimination.
To the extent Plaintiff seeks to hold the City liable for a
“single decision by [a] municipal policymaker[ ],” Pembaur v. City
of Cincinnati, 475 U.S. 469, 480 (1986), such a claim fares no
better. It is incumbent upon the plaintiff to show that the
official had final policymaking authority. See City of St. Louis v.
Praprotnik, 485 U.S. 112, 123 (1988) (explaining that “only those
municipal officials who have ‘final policymaking authority’ may by
their actions subject the government to § 1983 liability”). Here,
the Deputy Mayor was not deposed, and there is no basis in the rest
of the record to find that he was a policymaker. Even assuming the
Mayor was a “policymaker,” Plaintiff has failed to raise a triable
issue of fact as to causation.
In Praprotnik, 485 U.S. at 127, “a plurality of the Supreme
Court made it clear that to hold a municipality liable for the acts
of its employees, a plaintiff cannot just prove that the final
policymaking authority . . . knew of the adverse action . . . .”
Davis v. City of N.Y., 228 F. Supp.2d 327, 341 (S.D.N.Y. 2002)
(footnote omitted), aff’d, 75 Fed. Appx. 827 (2d Cir. 2003). “The
-13-
plaintiff must also prove that the final policymaking authority
knew that the subordinates took that action for unconstitutional
reasons.”
Id.
(citing
Prapotnik,
485
U.S.
at
127)
(“If
the
authorized policymakers approve a subordinate’s decision and the
basis for
it,
their
ratification
would be chargeable
to
the
municipality because their decision is final.”)). Here, Plaintiff
has not established that either the Mayor or the Deputy Mayor knew
of Plaintiff at all, much less that he was interested in, and was
not
given,
a
permanent
Laborer
II
appointment.
otherwise would require resort to conjecture.
To
conclude
Compare with Davis,
228 F. Supp.2d at 341 (overturning jury verdict finding that Safir
acquiesced in the complained of conduct because he knew or should
have known that his subordinates were acting in a deliberate and
retaliatory manner towards Mr. Davis for exercising his First
Amendment rights; “[e]ven drawing all inferences in favor of Davis,
the evidence only shows that Safir knew: (1) members of the Police
Department fired Davis and then refused to reinstate him on the
stated grounds that the city’s lawyers had concluded Davis had
violated the law, (2) the IAB put a hold on his reinstatement for
an unstated reason, and (3) Davis, his lawyer, and the Board of
Elections believed that Davis had not been a nominee of the Liberal
Party and should therefore not have been deemed resigned”).
IV.
The Impact of Heffernan
The Court finds that the Supreme Court’s decision in Heffernan
does not support Plaintiff’s opposition to Defendant’s summary
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judgment motion, and does not support the R & R’s analysis of the
First Amendment claim.
Heffernan presented the following factual scenario:
In 2005, Jeffrey Heffernan, the petitioner, was a police
officer in Paterson, New Jersey. He worked in the office
of the Chief of Police, James Wittig. At that time, the
mayor of Paterson, Jose Torres, was running for
reelection against Lawrence Spagnola. Torres had
appointed to their current positions both Chief Wittig
and a subordinate who directly supervised Heffernan.
Heffernan was a good friend of Spagnola’s. During the
campaign, Heffernan's mother, who was bedridden, asked
Heffernan to drive downtown and pick up a large Spagnola
sign. She wanted to replace a smaller Spagnola sign,
which had been stolen from her front yard. Heffernan went
to a Spagnola distribution point and picked up the sign.
While there, he spoke for a time to Spagnola’s campaign
manager and staff. Other members of the police force saw
him, sign in hand, talking to campaign workers. Word
quickly spread throughout the force.The next day,
Heffernan’s supervisors demoted Heffernan from detective
to patrol officer and assigned him to a “walking post.”
In this way they punished Heffernan for what they thought
was his “overt involvement” in Spagnola’s campaign. In
fact, Heffernan was not involved in the campaign but had
picked up the sign simply to help his mother. Heffernan’s
supervisors had made a factual mistake.
Heffernan, 136 S. Ct. at 1416. The district court found that
Heffernan had not engaged in any conduct protected by the First
Amendment, and, for that reason, the respondents had not deprived
him of any constitutionally protected right. The Third Circuit
affirmed,
stating
that
“a
free-speech
retaliation
claim
is
actionable under § 1983 only where the adverse action at issue was
prompted by an employee’s actual, rather than perceived, exercise
of constitutional rights.” Id. (quotation omitted).
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The Supreme Court reversed. At the outset, it “assume[d] that
the activities that Heffernan’s supervisors thought he had engaged
in are of a kind that they cannot constitutionally prohibit or
punish, but that the supervisors were mistaken about the facts.
Heffernan
had
not
engaged
in
those
Nevertheless, the Supreme Court held,
protected
activities.”
Heffernan’s constitutional
case did not fail because it was Heffernan’s supervisors’ allegedly
improper motive, based on facts as they perceived them, rather his
actual activity, that was relevant in determining liability. See
Heffernan, 136 S. Ct. at 1418 (“When an employer demotes an
employee out of a desire to prevent the employee from engaging in
political activity that the First Amendment protects, the employee
is entitled to challenge that unlawful action under the First
Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes
a factual mistake about the employee’s behavior.”). The Supreme
Court remanded the case for further proceedings.
This Court finds Heffernan relevant in at least two ways to
this case. The first is the Supreme Court’s emphasis on the
defendant’s motive for taking the adverse action, and its caveat
that the plaintiff “will have to point to more than his own conduct
to show an employer’s intent to discharge or to demote him for
engaging in what the employer (mistakenly) believes to have been
different (and protected) activities.” Heffernan, 136 S. Ct. at
1419. Here, in contrast, Plaintiff has pointed to no more than his
own conduct, which, as Heffernan makes clear, is insufficient to
-16-
prove an improper motive on the part of the City. Second, Heffernan
is consistent with Wrobel, discussed at length above, and precedent
from other circuits requiring the defendant in a First Amendment
association case to have knowledge of the plaintiff’s political
beliefs and activity (or lack thereof). See Wrobel, 692 F.3d at 32
(“‘It
is
only
intuitive
that
for
protected
conduct
to
be
a
substantial or motiving factor in a decision, the decisionmakers
must be aware of the protected conduct.’”) (quoting Ambrose v. Twp.
of Robinson, 303 F.3d 488, 493 (3d Cir. 2002)); Brown v. Cnty. of
Cook, 661 F.3d 333, 336 (7th Cir. 2011) (“The Cook County Sheriff’s
Office has some 7,000 employees, and Sheahan swears that he never
met Brown or had even heard of him before this lawsuit. Sheahan’s
deputies who were involved in promotions knew Brown but not that he
was
a
Republican.
Brown
contests
all
this
but
produced
no
admissible evidence to contradict the sworn denials of Sheahan and
the members of Sheahan’s senior staff. Brown cannot satisfy his
burden of showing that his political affiliation was a motivating
factor in his being passed over for promotion if he can’t even show
that people who decided or advised on the decision were aware of
his political affiliation.”). As discussed above, and in contrast
to Heffernan, there is no evidence that any City employee or
official with decision-making authority “perceived” or “thought” of
Plaintiff as politically neutral or insufficiently politically
loyal. Plaintiff’s proof as to causation founders on this basis.
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CONCLUSION
For the reasons discussed above, the Court rejects in part and
accepts in part the R&R. The Court rejects the R&R to the extent it
recommended denying summary judgment on Plaintiff’s First Amendment
claim, and accepts the R&R to the extent it found that the summary
judgment
motion
was
moot
as
to
Plaintiff’s
ADEA
claim,
and
dismissed the NYSHRL claim. The Corrected Amended Complaint is
dismissed, and the Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
January 31, 2017
Rochester, New York.
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