Campanella et al v. The County of Monroe et al
DECISION AND ORDER granting 60 Motion for Summary Judgment. Plaintiffs' Complaint is dismissed with prejudice, and the Clerk of Court is directed to close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 2/6/2017. (SC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES E. CAMPANELLA, II,
DEBORAH S. CAMPANELLA,
Case # 10-CV-6236-FPG
DECISION AND ORDER
MONROE COUNTY SHERIFF PATRICK M. O’FLYNN,
MONROE COUNTY UNDERSHERIFF GARY CAIOLA,
CHIEF DEPUTY STEVEN SCOTT,
LIEUTENANT LOU TOMASSETTI, and other known
or unknown members of the Monroe County
Sheriff’s Office, individually and in their
official capacities, 1
On April 29, 2010, Plaintiffs Charles (“Deputy Campanella”) and Deborah Campanella
(“Ms. Campanella”) (collectively “Plaintiffs”) brought this action under 42 U.S.C. § 1983
against Defendants Monroe County, the Monroe County Sheriff’s Office (“MCSO”), and MCSO
employees Patrick M. O’Flynn (“Sheriff O’Flynn”), Gary Caiola (“Undersheriff Caiola”), Steven
Scott (“Deputy Scott”), and Lucio Tomassetti (“Lieutenant Tomassetti”) (collectively
“Defendants”). ECF No. 1. Plaintiffs alleged that Defendants took adverse employment actions
against Deputy Campanella in violation of Plaintiffs’ constitutional rights. Id. In broad strokes,
Plaintiffs allege that Defendants investigated, threatened, reprimanded, reassigned, and refused
to promote Deputy Campanella in response to Deputy Campanella’s statements about a local
scandal and Ms. Campanella’s association with a political rival. Id.
Plaintiffs originally named the County of Monroe and the Monroe County Sheriff’s Office in this suit, but
the Court dismissed the claims against those defendants. ECF No. 24.
Initially, Plaintiffs’ Complaint alleged multiple First Amendment and Due Process
violations as well as libel, slander, defamation, and negligent failure to train and supervise. Id.
However, in resolving Defendants’ motion for judgment on the pleadings, ECF No. 11, Judge
Larimer, presiding over this case at that time, dismissed all but two of Plaintiffs’ First
Amendment claims. ECF No. 24. Additionally, Judge Larimer dismissed all of Plaintiffs’
claims against Monroe County and the MCSO. Id. The case was then transferred to this Court.
ECF No. 33. Plaintiffs’ surviving claims allege that Sheriff O’Flynn, Undersheriff Caiola,
Deputy Scott, and Lieutenant Tomassetti took seven adverse employment actions against Deputy
Campanella in retaliation for two things: Deputy Campanella’s statement about the investigation
of a local construction firm and Ms. Campanella’s affiliation with a man who ran as the
Democratic candidate for Monroe County Sheriff in 2009. Id.
On July 19, 2016, Defendants moved for summary judgment. ECF No. 60. Although
Plaintiffs’ Response was due by August 16, 2016, see L.R. CIV. PRO. 7(b)(2)(A), Plaintiffs have
not responded to that motion or requested an extension.
For the reasons stated below,
Defendants’ motion is GRANTED and this case is DISMISSED.
Summary Judgment Standard
A motion for summary judgment should be granted where the moving party shows that
“there is no genuine dispute as to any material fact” and that the moving party “is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect the
outcome of the suit under the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute regarding such a fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. Thus, when presented with
a motion for summary judgment, the Court must determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at 251-52.
The burden of establishing that no genuine and material factual dispute exists is on the
moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). To that end, the Court
must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party.
See Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003). That said, if the non-moving
party fails to respond to their opponent’s motion for summary judgment, “the court may consider
as undisputed the facts set forth in the moving party’s affidavits.” Gittens v. Garlocks Sealing
Technologies, 19 F. Supp. 2d 104, 109 (W.D.N.Y. 1998). Once the Court is satisfied that the
moving party’s assertions are supported by citations to evidence in the record, and those
assertions show that the moving party is entitled to judgment as a matter of law, summary
judgment is appropriate. Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244
(2d Cir. 2004).
In compliance with Rule 56(b) of the Local Rules of Civil Procedure for the Western
District of New York, Defendants filed a Statement of Material Undisputed Facts with their
Motion for Summary Judgment. ECF No. 60-2. Plaintiffs have not filed an opposing statement.
For that reason, the Court considers Defendants’ Rule 56 Statement undisputed. See L. R. Civ.
P. 56(a)(2) (“Each numbered paragraph in the moving party’s statement of material facts may be
deemed admitted for purposes of the motion unless it is specifically controverted by a
correspondingly numbered paragraph in the opposing statement.”). That undisputed statement
and the exhibits attached in support establish the following.
a. The Parties
Charles Campanella worked for the MCSO from 1988 to 2012. ECF No. 60-2, ¶2, 8.
During the relevant periods of Deputy Campanella’s employment with the MCSO, Patrick
O’Flynn was the Monroe County Sheriff. Id. at ¶9. Sheriff O’Flynn was first elected in 2001,
ECF No. 60-4, 11:2-4, and was reelected in 2005, 2009, and 2013. Id. at 11:18-20. In each
election, Sheriff O’Flynn ran as the Republican Party’s candidate. Id. 72:23-25. Under Sheriff
O’Flynn, and at all times relevant to the issues in this case, Gary Caiola was the Undersheriff.
ECF No. 60-2, ¶10. Steven Scott was the Chief Deputy. Id. at ¶11. Lucio Tomassetti was the
Special Operations Commander. Id. at ¶27.
Ms. Campanella is a real estate broker and insurance producer. ECF No. 60-6, 6-7. She
is also active in local government. ECF No. 60-6, 18:3.
In 2008, Ms. Campanella won the
Republican Party’s endorsement for a town council seat for the Town of Riga. Id. at 50:7-9;
ECF No. 60-2, ¶16. In 2009, she won in the general election. Id. She ran in the 2009 general
election on the same ticket as Sheriff O’Flynn. ECF No. 60-6, 50:7-9.
In 2008, Ms. Campanella began working as a part-time business manager for Leader
Security Services (“Leader”). ECF No. 60-2, ¶17. Leader was founded by Daniel Greene. Id. at
¶14. Before founding Leader, Greene worked for the MCSO as an undersheriff under Sheriff
O’Flynn. Id. at ¶9, 13. On May 9, 2009, Greene announced that he was running for Sheriff, as
the Democratic Candidate, against O’Flynn. Id. at ¶15. Ms. Campanella worked for Leader until
December 2012. ECF No. 60-6, 21:10-12.
b. Deputy Campanella’s Employment at the MCSO
Deputy Campanella began working as a deputy sheriff for the MCSO in 1988. ECF No.
60-2, ¶1. He retired from that position on June 23, 2012. Id. at ¶8. During his 24 years at the
MCSO, Deputy Campanella’s duties and assignments varied. Id. at ¶3-7. From 1988 until 1990,
Deputy Campanella worked as a part-time Deputy Sheriff. ECF No. 60-3. In 1990, Deputy
Campanella became a full-time, Road Patrol Deputy. Id.
Approximately two or three years
later, Deputy Campanella was assigned to his first special assignment, the DARE program. Id.
After three or four years in the DARE Program, Deputy Campanella was assigned to the Warrant
Unit. Id. After spending three or four years in the Warrant Unit, Deputy Campanella was
assigned to the Narcotics Unit. Id. In 2005, Deputy Campanella was assigned to the Community
Services Unit as a Crime Prevention Officer (“CPO”). Id.; see also ECF No. 60-2, ¶34, 41. He
served as a CPO until 2009.
ECF Nos. 60-2, ¶41; 60-3.
On January 25, 2010, Deputy
Campanella was reassigned to Road Patrol. ECF No. 60-2, ¶44.
While carrying out his road patrol and special assignment duties, Deputy Campanella
also performed other duties for the MCSO. ECF No. 60-3. Deputy Campanella was a member
of the SWAT team for 14 years, between 1994 and 2008, and a SWAT Team Leader for four
years, from 2008 until his retirement. Id.; see also ECF No. 60-2, ¶3-6.
took on additional road patrol duties. ECF No. 60-3, 99:4-8. Deputy Campanella was a firearms
instructor during Police Academy classes. ECF No. 60-2, ¶7. Lastly, Deputy Campanella’s
duties as a member of the Community Services Unit involved leading a range of community
programs. Id. at ¶91-93. Those programs included Senior Citizens Academy, Fatal Crash
Simulations, firearms and alcohol safety talks, Neighborhood Watch meetings, and Operation
Safe Child. Id. at ¶93; see also ECF No. 60-3. The Operation Safe Child program involves
operating a machine that creates identification cards for children. ECF No. 60-2, ¶91.
As a CPO, Deputy Campanella’s standard hours were Monday through Friday, from 8
a.m. to 4 p.m. ECF No. 60-3, 41:10.
But taking on additional duties and participating in
community programs often required him to work evenings and weekends. Id. at 35:12-20
(Deputy Campanella led firearms safety talks in the evenings); id. at 41:16-22 (same for
Neighborhood Watch); id. at 45:5-8 (SWAT operations often required Deputy Campanella to
work evenings and weekends); id. at 99:4-8 (same for road patrol shifts); id. at 123:20-23
(Deputy Campanella operated the Operation Safe Child machine on the weekends). When
Deputy Campanella worked in the evening or over the weekend, he received overtime pay. Id. at
c. Deputy Campanella’s Employment at the MCSO from 2008 to 2012
In 2008, the MCSO began to limit the amount of time a deputy could remain assigned to
a specialized unit. Id. at ¶37. To that end, the MCSO reassigned deputies in at least some
Id. at ¶42.
That included Deputy Campanella and the deputies in the
Community Services Unit. Id. at ¶34-35. On September 23, 2008, Deputy Scott announced that
the MCSO would be reposting the CPO positions and reassigning the CPOs. Id. at ¶38. At the
time of Deputy Scott’s announcement, Deputy Campanella and two other deputies were CPOs.
Id. at ¶31. By January 25, 2010, all three CPOs were either reassigned to Road Patrol or retired.
Id. at ¶44-46.
Between September 2008 and January 2010, after the CPO reassignments were
announced but before the reassignments went into effect, Deputy Campanella’s duties fluctuated.
Id. at ¶42, 93.
Around July 2009, Deputy Campanella stopped operating the Operation Safe
Child machine. Id. at ¶93. Additionally, between September 2009 and December 2009 Deputy
Campanella was assigned to work temporarily as a fulltime Firearm Instructor. ECF No. 60-2,
¶42. Deputy Campanella was placed in that position as the MCSO transitioned from one type of
firearm to another. Id.
On June 12, 2009, the MCSO created a fulltime and permanent Firearms Deputy position
in an attempt to reduce the amount of overtime that temporary and part-time instructors
generated. Id. at ¶98. Deputy Campanella and six other officers applied for that position. Id. at
¶101, 104. All seven of those applications were presented to a selection committee. Id. at ¶110.
Seven officers sat on that selection committee. Id. at ¶111-12, 120. Four of the seven officers on
the selection committee recommended Deputy Brian Moore for the Firearms Deputy position.
Id. at ¶120. On June 30, 2009, the position was awarded to Deputy Moore. Id. at ¶113. As
noted above, on January 25, 2010, Deputy Campanella was reassigned to Road Patrol. ECF No.
60-2, ¶44. Deputy Campanella retired from the MCSO on June 23, 2012. Id. at ¶8.
d. Deputy Campanella’s Meeting with Sheriff O’Flynn
Shortly after the CPO reassignments were announced, Deputy Campanella requested to
meet with Sheriff O’Flynn. Id. at ¶54. On October 20, 2008, Deputy Campanella and Sheriff
O’Flynn met at a Starbucks. Id. at ¶55. At that meeting, Sheriff O’Flynn learned that Ms.
Campanella worked for Dan Greene at Leader Security. ECF No. 60-2, ¶56. Knowing that
Greene intended to run for Sheriff as a the Democratic nominee, ECF No. 60-4, 72:15-19, and
that Ms. Campanella intended to run for Town Council as the Republican nominee, id. at 76:2223, Sheriff O’Flynn told Deputy Campanella that Ms. Campanella’s employment for Greene
would put them in a compromising position. Id. at 80:17-24. Because Ms. Campanella would be
running as a Republican on the same ticket as Sheriff O’Flynn, Sheriff O’Flynn was concerned
about the conflict of interest that Ms. Campanella’s employment for his opponent might present.
e. Investigation of Deputy Campanella for Gossiping
In the spring of 2009, MCSO officers investigated two allegations that Deputy
Campanella was inappropriately gossiping. ECF No.60-2, ¶¶61-89. In April 2009, MCSO Major
Crimes Investigators Patrick Crough and Kevin Garvey told Undersheriff Caiola that they heard
Deputy Campanella spreading a rumor that MCSO officers might face criminal charges for
conducting an improper investigation of the Robutrad matter. ECF No. 60-5, 123-24. Robutrad
is a now-defunct local company that once did construction work for Monroe County. ECF No.
60-3, 138-39. Robutrad employees allegedly repaired the homes of local Republican officials
while still on the county clock. Id. The investigators requested that the MCSO investigate
Deputy Campanella’s gossiping in connection with those statements. Id. Undersheriff Caiola
refused to do so. Id. at ¶62. He did not believe Deputy Campanella’s statements “were serious
enough” to warrant further inquiry. Id.; ECF No. 60-5, 126:11-15. Undersheriff Caiola told the
investigators, “Don’t worry about it. It will go away.” ECF No. 60-5, 127-28.
A few weeks later, Undersheriff Caiola heard that Deputy Campanella had been telling
other MCSO officers that the MCSO charged Deputy Anthony DiPonzio with abuse of sick time
for visiting his son in the hospital. ECF No. 60-2, ¶63.
Deputy DiPonzio’s son, a Rochester
Police Officer, was shot in the head while on duty in January 2009. ECF No. 60-5, 122-23.
Based on that report, Undersheriff Caiola asked Deputy Scott to conduct an investigation into
both instances of Deputy Campanella’s gossiping. Id. at ¶64; ECF No. 60-5, 131:11-15. On
May 1, 2009, Deputy Scott, Lieutenant Tomassetti, and Sergeant Lawrence (Deputy
Campanella’s direct supervisor), interviewed Deputy Campanella. ECF No. 60-2, ¶67. During
that interview, Scott, Tomassetti, and Lawrence focused almost exclusively on the second
gossiping allegation—Deputy Campanella’s statements about Deputy DiPonzio. ECF No. 60-3,
165:16-19. Two weeks later Deputy Scott closed the investigation without taking disciplinary
action. ECF No. 60-2, ¶73.
On May 14, 2009, Lieutenant Tomassetti gave Deputy Campanella a Memorandum of
Record (“MOR”) regarding these gossiping allegations. ECF Nos. 60-2, ¶76; 60-12. The
MCSO issues MROs when officers violate internal rules. ECF No. 60-2, ¶¶76-78. The issuance
of an MOR is not a form of discipline. Id. Instead, the MOR is intended to counsel the officer
on appropriate behavior. Id. The MOR issued to Deputy Campanella described the instances of
gossiping, noted Deputy Campanella’s responses to the allegations, and summarized Deputy
Campanella’s violations of the MCSO’s code of conduct. ECF No. 60-12. The MOR focused
on Deputy Campanella’s gossiping about Deputy DiPonzio, but it also mentioned the Robutrad
matter. Id. In closing, the MOR warned Deputy Campanella that “[a]ny further action of this
type may result in disciplinary action . . . .” Id.
Plaintiffs claim that Defendants retaliated against them because of Deputy Campanella’s
statements about the Robutrad investigation and Ms. Campanella’s association with Greene.
They claim that, in response to these protected activities, Defendants took seven adverse
employment actions against Deputy Campanella. Those actions include reassigning Deputy
Campanella from the Crime Prevent Unit, investigating Deputy Campanella for gossiping,
warning Deputy Campanella that Ms. Campanella’s association with Greene would “put [Deputy
and Ms. Campanella] in a box,” issuing Deputy Campanella an MOR for violating MCSO Rules
and Regulations, awarding the Firearm Deputy position to another employee, removing Deputy
Campanella from the Operation Safe Child program, and denying Deputy Campanella’s requests
For these alleged abuses, Plaintiffs seek relief under 42 U.S.C. § 1983. Section 1983
provides plaintiffs with “a method for vindicating federal rights elsewhere conferred.” Graham
v. Connor, 490 U.S. 386, 393-394 (1989). To be entitled to relief under § 1983, a plaintiff must
prove that a person acting under the color of state or territorial law deprived the plaintiff of a
federal right. Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also Snider v. Dylag, 188 F.3d 51,
53 (2d Cir. 1999).
Plaintiffs claim that Defendants deprived them of their First Amendment rights. ECF No.
1. To survive a motion for summary judgment, a public employee alleging retaliation for the
exercise of First Amendment rights must demonstrate three things: (1) the plaintiff’s speech or
association was constitutionally protected; (2) the plaintiff suffered an adverse employment
action; and (3) a causal connection existed between the protected speech and the adverse
employment action. Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (citations and internal
quotation marks omitted). If the plaintiff satisfies those requirements, the defendant may escape
liability by showing by a preponderance of the evidence that he or she would have taken the
same adverse action in the absence of the protected activity. Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Mandell v. Cnty. of Suffolk, 316 F.3d 368, 382 (2d Cir.
2003). If the defendant is able to make such a showing, the plaintiff may still prevail by
establishing that the adverse action was in fact motivated by retaliation. Mandell, 316 F.3d at
For the purposes of the present motion, Defendants do not dispute that Deputy
Campanella’s statement about the Robutrad investigation and Ms. Campanella’s affiliation with
Sheriff O’Flynn’s political opponent are protected activities.
ECF No. 60-20.
Defendants claim that the alleged adverse employment actions are not legally sufficient adverse
actions, that Plaintiffs have not established a causal connection between the protected activities
and the complained of acts, and that they would have taken several of the complained of acts in
absence of the protected activity. Id. For the reasons stated below, the Court finds that three of
the alleged adverse employment actions are not sufficiently adverse and that Defendants would
have taken the four remaining actions in the absence of the protected activities.
a. Adverse Employment Actions
Plaintiffs failed to satisfy their initial burden with regards to three of the alleged adverse
actions because those actions, considered individually and in the aggregate, do not constitute
adverse employment actions for the purposes of a First Amendment Retaliation claim. In the
context of a First Amendment retaliation claim, “only retaliatory conduct that would deter a
similarly situated individual of ordinary firmness from exercising his or her constitutional rights
constitutes an adverse action.” Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006)
(internal quotation marks omitted). That includes fundamental changes like “discharge, refusal
to hire, refusal to promote, demotion, reduction in pay, and reprimand.” Morris v. Lindau, 196
F.3d 102, 110 (2d Cir. 1999). But it might also include less severe actions like “negative
evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class
preparation periods, failure to process teacher's insurance forms, transfer from library to
classroom teaching . . . .” Id. Ultimately, “whether an undesirable employment action qualifies
as being adverse is a heavily fact-specific, contextual determination.” Hoyt v. Andreucci, 433
F.3d 320, 328 (2d Cir. 2006) (internal quotation marks and citations omitted).
i. Denial of Overtime
Plaintiffs claim that, in retaliation for Deputy Campanella’s statements and Ms.
Campanella’s political affiliation, Defendants denied Deputy Campanella’s “frequent requests
for overtime opportunities.” ECF No. 1. The denial of overtime opportunities might rise to the
level of an adverse employment action in certain circumstances. See, e.g., Burhans v. Cty. of
Putnam, No. 06-CV-8325, 2011 WL 1157693, at *5 (S.D.N.Y. Mar. 25, 2011) (noting that
pleading the denial of overtime was sufficient to survive a motion to dismiss in a First
Amendment retaliation case). But to survive summary judgment, Plaintiffs must provide more
than conclusory statements about being denied theoretical overtime opportunities. See Rivers v.
N.Y. City Hous. Auth., 176 F. Supp. 3d 229, 253 (E.D.N.Y. 2016) (finding the plaintiff’s “broad,
conclusory statements that he was treated differently from his similarly situated co-workers with
respect to the provision of overtime” did not raise a genuine issue of material fact regarding
“whether the overtime denials constitute adverse employment actions”).
Plaintiffs have provided no specific instances when Deputy Campanella applied for but
did not receive overtime. ECF No. 60-3, 221:11-21. Indeed, when asked whether he received
overtime after his meeting with Sheriff O’Flynn on October 20, 2008, Deputy Campanella
responded, “Oh, I believe so.” ECF No. 60-3, 223:3.
Further, to the extent that Deputy
Campanella received less overtime in the last four years of his career, the evidence shows that,
during that period of time, the MCSO sought to decrease overtime across the board. See, e.g.,
ECF No. 60-2, ¶103 (“[The] Firearms Deputy position was developed [on June 12, 2009] to
minimize overtime generated by using part-time Firearms Instructors.”). The evidence does not
suggest that Defendants sought to deny Deputy Campanella, in particular, overtime. To the
contrary, while Defendants intended to limit overtime generally, the undisputed evidence
indicates that Deputy Campanella still received overtime shifts. ECF Nos. 60-2, ¶133; 60-3,
223:3. No rational jury could find that the denial of overtime in these circumstances would deter
a similarly situated individual of ordinary firmness from exercising his or her constitutional
ii. Sheriff O’Flynn’s Comment to Deputy Campanella
Plaintiffs also claim that Sheriff O’Flynn made a “thinly veiled threat” to Deputy
Campanella in retaliation for Deputy Campanella’s statements and Ms. Campanella’s political
affiliation. ECF No. 1. Generally, a threat of retaliation alone cannot constitute an adverse
employment action. See Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247, 269 (E.D.N.Y.
2012) (“[T]hreats of termination cannot, by themselves, constitute an adverse employment
action.”). But there is one exception to that general principle: a threat of retaliation might be
sufficient to show constructive discharge. Grey v. City of Norwalk Bd. of Educ., 304 F. Supp. 2d
314, 324 (D. Conn. 2004) (“[T]hreats of termination alone are sometimes sufficient to show
constructive discharge.”); Valdes v. New York City Dep't of Env. Protection, No. 95-CV-10407,
1997 WL 666279, at *3 (S.D.N.Y. Oct. 27, 1997) (“[A]n employer's clearly expressed desire that
an employee resign has been held sufficient to find a constructive discharge.”). “A constructive
discharge . . . occurs when an employer deliberately makes an employee's working conditions so
intolerable that the employee is forced into an involuntary resignation.” Spence v. Maryland
Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993). The test for determining whether an employee
has been constructively discharged is whether “a reasonable person in the employee’s shoes
would have felt compelled to resign.” Stetson v. NYNEX Service Co.¸ 995 F.2d 355, 361 (2d Cir.
The undisputed facts show that Sheriff O’Flynn told Deputy Campanella that Ms.
Campanella’s political affiliation would “put [them] in a box” because Ms. Campanella “would
run for office as a republican on the same ticket as Sheriff O’Flynn while working for Sheriff
O’Flynn’s opponent.” Id. at ¶60. On its face, Sheriff O’Flynn’s statement is not threatening. In
fact, the undisputed facts show that Sheriff O’Flynn did not mean to threaten Plaintiffs. ECF No.
Instead, Sheriff O’Flynn meant to comment on the awkwardness of Ms.
But even interpreting the statement as a threat of retaliation,
Plaintiffs’ argument fails. The threat alone does not amount to an adverse employment action,
Murray, 853 F. Supp. 2d at 269, Plaintiffs do not claim that Deputy Campanella was
constructively discharged, see ECF No. 1, and Deputy Campanella was not constructively
discharged. After Sheriff O’Flynn made this remark, Deputy Campanella remained employed by
the MCSO for four months short of four years. ECF No. 60-2, ¶8. No reasonable jury could find
that a reasonable person in Deputy Campanella’s shoes would have felt compelled to resign.
iii. Removal from the Operation Safe Child Program
Plaintiffs also claim that Defendants removed Deputy Campanella from the Operation
Safe Child program in retaliation for their protected activities. ECF No. 1. Reassignment of
duties can amount to an adverse employment action. See Burlington N. and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68-69 (2006) (finding a sufficient evidentiary basis to support the jury’s
verdict that reassignment “from forklift duty to standard track laborer tasks” would “likely
dissuade a reasonable worker from making or supporting a charge of discrimination”). 2
However, “reassignment of job duties is not automatically actionable.” Id. at 69; see also Eiden
v. McCarthy, 531 F. Supp. 2d 333, 352–53 (D. Conn. 2008) (finding reassignment from the
Connecticut Department of Environmental Protection’s Underground Storage Tank Enforcement
Program to its Remediation Program did not constitute an adverse action).
To constitute an
adverse employment action, the reassignment must be “more than de minimis.” See Davidson v.
Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (collecting cases).
In Burlington North, the Court noted that the plaintiff was reassigned to “more arduous
and dirtier” duties. Burlington N., 548 U.S. at 71. There, the evidence suggested the original
assignment “required more qualifications,” which was “an indication of prestige.” Id. The
evidence also suggested that the original assignment “was objectively considered a better job”
and that “the male employees resented [the plaintiff] for occupying it.” Id. In contrast, in Eiden,
there was no evidence to suggest that the plaintiff’s duties before he was reassigned differed
from his duties after he was reassigned. Eiden, 531 F. Supp. 2d at 53. Before and after
reassignment, the plaintiff was a “general worker,” and his job was to “provide program support
and technical support to Connecticut agencies.” Id. Before and after reassignment, his duties
included categorically similar, administrative tasks. Id. Because the plaintiff “was performing
the same duties with the same job title at the same rate of pay,” the court concluded that the
Burlington Northern is a Title VII retaliation case. See Burlington N., 548 U.S. at 53. Nonetheless, it is
applicable here. The Second Circuit has noted that its test for determining whether an employment action is adverse
in the context of First Amendment retaliation claims “has always been equivalent to the standard set forth in
Burlington Northern.” Zelnik, 464 F.3d at 227.
reassignment “would not have discouraged a reasonable worker from asserting his First
Amendment rights.” Id.
Like Eiden, there is no indication that Deputy Campanella’s change in duties would have
discouraged a reasonable worker from exercising his or her First Amendment rights. Operating
the Operation Safe Child machine involved fingerprinting children, taking their picture, and
printing an identification card. ECF No. 60-2, ¶91. It was not a daily—or even typical—duty of
Deputy Campanella’s. ECF No. 60-3, 124:13. When asked how many hours per week he spent
operating the Operation Safe Child Machine, Deputy Campanella responded, “That’s a good
question. It was a scheduled event, usually on the weekends, so whenever somebody would call
and offer for a group I would do it. I’m not sure.” Id. At any rate, when Deputy Campanella did
operate the Operation Safe Child machine, it was still only one discrete duty out of many. In
addition to operating the Operation Safe Child machine, Deputy Campanella was a SWAT Team
Leader, id. at 45:11, and a firearms instructor. ECF No. 60-20, ¶7. He also taught Senior
Citizens Academy, did Fatal Crash Simulations, led health and safety talks, and helped
communities establish Neighborhood Watch programs. Id. at ¶93; see also ECF No. 60-3. Thus,
although Defendants removed one discrete duty from his plate, on balance, Deputy Campanella’s
job duties remained the same.
Plaintiffs seem to suggest that operating the Operation Safe Child machine was
significant because of the overtime opportunities it afforded Deputy Campanella. But that
argument is unavailing. As an initial matter, even if removal from the Operation Safe Child
program left Deputy Campanella with fewer opportunities for overtime, it is not clear that the
accompanying loss of overtime would make the action adverse. Cf. Brown v. City of Syracuse,
673 F.3d 141, 151 (2d Cir. 2012) (recognizing that, in the context of a Title VII discrimination
claim, suspension with pay pending an investigation does not, “without more,” constitute an
adverse employment action and concluding that suspension with pay accompanied by loss of
overtime pay did not amount to the requisite “more”). But more to the point, there is no
evidence to suggest that removal from the Operation Safe Child program actually resulted in
fewer overtime opportunities for Deputy Campanella. Many of Deputy Campanella’s duties as a
CPO afforded him overtime opportunities:
Deputy Campanella received overtime for the
firearms home safety course he led in the evenings. ECF No. 60-3, 35:12-20. He received
overtime for the evenings he spent helping communities establish neighborhood watch programs.
Id. at 41:16-22. When called out for a SWAT operation outside of his usual work hours, Deputy
Campanella received overtime. Id. at 45:5-8. Deputy Campanella even picked up road patrol
shifts as a CPO, and for those, he received overtime. Id. at 99:4-8.
In effect, this reassignment resulted in “the same duties with the same job title at the
same rate of pay.” Eiden, 531 F. Supp. 2d at 353. After Deputy Campanella was removed from
the Operation Safe Child program, only one aspect of his job changed: he was no longer creating
identification cards for children on the occasional weekend. No reasonable jury could conclude
that an officer of ordinary firmness, who was a SWAT Team Leader and a firearms instructor,
and who participated in various other community education and safety programs, would be
discouraged from exercising a constitutional right for fear of being removed from portrait and
i. Adverse Employment Actions in Aggregate
Taken together, the denial of overtime, Sheriff’s comment, and removal from the
Operation Safe Child program still fail to constitute an adverse employment action.
determine whether an action is sufficiently adverse, courts must consider the actions both
individually and in the aggregate. Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (“[E]ven
minor acts of retaliation can be sufficiently substantial in gross as to be actionable.”) (citing
Zelnik, 464 F.3d at 227). Even when placed alongside removal from the Operation Safe Child
program, Plaintiffs’ overtime and “thinly veiled threat” allegations remain fatally flawed.
Plaintiffs’ overtime claim lacks specificity and Sheriff O’Flynn’s threat is simply not enough to
carry removal from the Operation Safe Child program from not-adverse to sufficiently adverse.
“Zero plus zero is zero.” See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556,
572 (2d Cir. 2011) (finding an investigation, counseling, two threats of termination, and a change
from day shift to night shift, among other things, considered individually and in aggregate, did
not constitute adverse employment actions). Simply put, even when faced with all three of these
actions, an officer of ordinary firmness would not be discouraged from exercising a
b. Legitimate, Non-Retaliatory Reasons for the Remaining Adverse Actions
Even assuming that Plaintiffs have established a prima facie case in regards to the
remaining alleged adverse employment actions, Defendants are entitled to summary judgment
because the evidence shows that they would have taken those actions in absence of the protected
activities. The First Amendment protects an employee from being punished because he or she
exercised a constitutional right. Mt. Healthy, 429 U.S. at 286 (“A borderline or marginal
candidate should not have the employment question resolved against him because of
constitutionally protected conduct.”). But it does not create a blanket of immunity that shields
such an employee from any adverse employment action. Id. (“But that same candidate ought not
to be able, by engaging in [protected] conduct, to prevent his employer from assessing his
performance record and reaching a decision not to rehire on the basis of that record, simply
because the protected conduct makes the employer more certain of the correctness of its
decision.”). The First Amendment is satisfied as long as that employee “is placed in no worse a
position than if he had not engaged in the conduct.” Id. at 285-86. To that end, “the government
can avoid liability if it can show that it would have taken the same adverse action in absence of
the protected speech.” Anemone v. Metropolitan Transp. Authority, 629 F.3d 97, 114 (2d Cir.
2011) (citing Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998)).
Here, Defendants present undisputed evidence that they would have taken several of the
alleged adverse employment actions in absence of Plaintiffs’ protected activities. Those actions
include (1) reassigning Deputy Campanella from the Community Outreach Unit, (2)
investigating Deputy Campanella for gossiping, (3) giving him an MOR following that
investigation, and (4) not awarding Deputy Campanella the firearm training position. ECF No.
First, the undisputed evidence indicates that Defendants reassigned Deputy Campanella
from his CPO position to road patrol because the MCSO began putting time limits on special
assignments. Id. at ¶39. The CPO position is a special assignment within the Community
Id. at ¶35.
Indeed, the MCSO had three CPOs at the time that Deputy
Campanella’s reassignment was announced, and the MCSO announced that all three of those
CPO were going to be reassigned. 3 Id. at ¶38. The undisputed evidence demonstrates that
Defendants would have reassigned Deputy Campanella even in the absence of Deputy
Campanella’s protected statements of Ms. Campanella’s political affiliation.
Second, the undisputed evidence indicates that Defendants investigated Deputy
Campanella for gossiping because of statements that Deputy Campanella made about Deputy
DiPonzio, not because of the protected statements Deputy Campanella made about Robutrad
matter. Id. at ¶61-64. When the two MCSO Major Crimes Investigators reported that Deputy
Campanella was gossiping about the Robutrad investigation, Undersheriff Caiola told them,
“Don’t worry about it. It will go away.” ECF No. 60-5, 127-28. When the investigators
Deputy Jim Godshall retired before the reassignment became effective. ECF No. 60-2, ¶38, 46. Deputy
Dan Lyons and Deputy Campanella were transferred to Road Patrol on January 25, 2010. Id. at 44-45.
requested that the MCSO investigate Deputy Campanella’s gossiping in connection with those
statements, Undersheriff Caiola refused because he did not think the statements warranted
investigation. Id. at ¶62. In fact, “[e]verybody talked about” the Robutrad matter. ECF No. 603, 141:3. According to Deputy Campanella, the MCSO did not even instruct its employees not
to discuss the Robutrad matter.
Id. at 141:8-11.
Further, when Deputy Scott, Lieutenant
Tomassetti, and Sergeant Lawrence interviewed Deputy Campanella about his gossiping,
“Robutrad was a small part of the meeting.” Id. at 165:17-19. Indeed, Deputy Campanella does
not remember the officers “saying anything about Robutrad as much as DiPonzio.” Id. at 166:78.
In contrast, when Undersheriff Caiola heard that Deputy Campanella was telling officers
that the MCSO charged Deputy DiPonzio with abuse of sick time for visiting his son in the
hospital, he found that allegation to be “upsetting.” ECF No. 60-5, 129:13-14. Undersheriff
Caiola felt that gossiping about another officer, one who “had enough to worry about,” was “a
bad thing to do.” Id. at 129:4-11. Based on that report, Undersheriff Caiola asked Deputy Scott
to investigate Deputy Campanella’s gossiping. ECF No. 60-2, ¶64. Although Undersheriff
Caiola asked Deputy Scott to look into both allegations, id. at 131:14-15, he did so only after
hearing that Deputy Campanella was gossiping about Deputy DiPonzio.
Id. at 128:17-20.
Deputy Campanella’s gossiping about Deputy DiPonzio was what really concerned Undersheriff
Caiola and motivated him to act. Id. at 24-25. Thus, the undisputed evidence indicates that
Defendants would have investigated Deputy Campanella for gossiping even if he had not made
the protected statements about the Robutrad investigation.
Third, like the gossiping investigation itself, the MOR that followed stemmed from
Deputy Campanella’s gossiping about Deputy DiPonzio.
After Deputy Scott, Lieutenant
Tomassetti, and Sergeant Lawrence interviewed Deputy Campanella, Scott and Tomassetti
discussed what the outcome of the investigation should be. ECF No. 60-10, 87-88. They
decided Lieutenant Tomassetti should write an MOR summarizing Deputy Campanella’s
violations of the MCSO’s code of conduct. Id. Further, the MOR only briefly mentions the
Robutrad matter. See ECF No. 60-12. The MOR is ten paragraphs long, and only one sentence
within one of those paragraphs discusses Deputy Campanella’s statements about the Robutrad
matter. Accordingly, Defendants would have issued the MOR even if Deputy Campanella had
not spoken to others about the Robutrad matter.
Finally, the evidence indicates that Defendants did not assign Deputy Campanella to the
Firearms Deputy position because they instead assigned a candidate who received more
recommendations. ECF No. 60-2, ¶120-21. In deciding who would fill the Firearms Deputy
position, seven officers voted to recommend a candidate. Id. at 120. One candidate received
four out of those seven votes. Id. That officer was awarded the position. Id. at 121. Here, too,
the undisputed evidence demonstrates that Defendants would have taken this action even in
absence of Deputy Campanella’s statement about the Robutrad investigation and Ms.
Campanella’s political affiliation.
Plaintiffs have presented no evidence in response to suggest that these adverse actions
were in fact motivated by retaliation. Based on the undisputed evidence, no reasonable jury
would conclude that Defendants took these four actions because of Deputy Campanella’s
protected statements and Ms. Campanella’s political affiliation.
judgment is appropriate.
For the reasons stated above, Defendants’ Motion for Summary Judgment (ECF No. 60)
is GRANTED. Plaintiffs’ Complaint is dismissed with prejudice, and the Clerk of Court is
directed to close this case.
IT IS SO ORDERED.
Dated: February 6, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?