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Timothy M. Wrobel v. County of Erie

August 1, 2012

TIMOTHY M. WROBEL, PLAINTIFF-APPELLANT,
v.
COUNTY OF ERIE, DOUGLAS NAYLON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A COUNTY EMPLOYEE,
DANIEL RIDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A COUNTY EMPLOYEE, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

10-5179-cv

Wrobel v. County of Erie

Submitted: February 15, 2012

29 Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.

32 Timothy Wrobel appeals from a judgment entered in the 33 United States District Court for the Western District of New 34 York (Curtin, J.), dismissing on summary judgment his First 35 Amendment claims brought under 42 U.S.C. § 1983 against his 36 former employer, Erie County, and certain employees.

37 Because Wrobel failed to adduce evidence that his 1 mistreatment was caused by political association or by 2 speech about matters of public concern, we affirm. 3 Judge CALABRESI dissents in a separate opinion.

16 Timothy Wrobel appeals from a judgment entered in the 17 United States District Court for the Western District of New 18 York (Curtin, J.), dismissing on summary judgment his First 19 Amendment claims brought under 42 U.S.C. § 1983 against his 20 former employer, Erie County, and certain employees.

21 Because Wrobel failed to adduce evidence that his 22 mistreatment was caused by political association or by 23 speech about matters of public concern, we affirm. 24 Wrobel was a longtime employee of Erie County's highway 25 division. In 1999, a newly elected Republican county 26 executive appointed the defendants as Wrobel's direct and 27 indirect supervisors. Over the next eighteen months 28 Wrobel's run-ins with them resulted in harassment of him and 1 his transfer to a faraway workplace. His direct supervisor, 2 defendant Douglas Naylon, repeatedly referred to employees 3 that predated his tenure as being part of the "old regime," 4 and to the office under his supervision as the "new regime."

5 Following his transfer, Wrobel made anonymous complaints to 6 public officials and a confidential report to the FBI, for 7 which he claims he was further persecuted. Wrobel's 8 complaint alleges retaliation in violation of his First 9 Amendment rights to free association and free speech.

The 10 thrust of the complaint is that Wrobel suffered 11 discrimination because he was apolitical, and not 12 politically aligned with the "new regime." Because we 13 conclude that no reasonable jury could find that Wrobel's 14 mistreatment was caused by any political activity--or 15 inactivity--we affirm the district court's grant of summary 16 judgment in favor of defendants.

18 BACKGROUND

19 Timothy Wrobel worked as a blacksmith at a highway 20 maintenance facility of the Erie County highway department 21 called the Aurora barn. In 1999, Republican Joel Giambra 22 succeeded Democrat Dennis Gorski as Erie County Executive.

1 The new administration hired defendant Naylon as the senior 2 highway maintenance engineer at the Aurora barn, in charge 3 of day-to-day activities, including direct oversight of 4 Wrobel and the other employees; defendant Rider was hired to 5 run the entire highway department.

6 The record on summary judgment is extensive, but the 7 salient facts can be summarized. Immediately after the 8 defendants were hired by the county, Wrobel and his 9 co-workers clashed with them. In January 2001, Wrobel 10 confronted Naylon about what he perceived to be rudeness and 11 disrespect. Naylon responded that the trouble with the 12 Aurora barn was Wrobel and other workers from what Naylon 13 labeled the "old regime," and suggested that Wrobel should 14 transfer to another facility.

15 A few months later, Wrobel received written notice to 16 appear for a disciplinary hearing on six charges: 17 insubordination stemming from the January confrontation, 18 falsifying his daily reports, leaving the job-site without 19 permission, lateness, excessive breaks, and personal use of 20 his work phone. The upshot of the disciplinary hearing was 21 that Rider transferred Wrobel to another maintenance 22 facility, the Tonawanda plant. The transfer greatly 1 lengthened Wrobel's commute, and the stress of this ordeal 2 caused him to miss work for several weeks. 3 Although Wrobel admitted to some of the misconduct, he 4 grieved the discipline on the ground that it was actually 5 punishment for his friendship with Naylon's predecessor (and 6 that Naylon's work expectations were unrealistic). An 7 arbitrator ruled for the county, finding that "[t]he 8 grievant seemed determined to function as an independent 9 contractor," and that Wrobel justified his occasional 10 tardiness because "no one ever complained to him about it." 11 (J.A. 272-73.)

12 Soon after Wrobel's transfer, his wife joined with some 13 of his former colleagues to expose Naylon and Rider's 14 mistreatment of county workers, as well as other improper 15 behavior they believed to be taking place in the highway 16 department, such as misusing public funds and operating 17 county equipment while intoxicated. In May 2001, the group 18 sent letters about the Aurora barn--signed only by 19 "Concerned Erie County Employees"--to the state Democratic 20 chairman and the New York State attorney general complaining 21 about the state of affairs at the Aurora barn. (Wrobel's 22 wife also followed Naylon with a camera to catch him 1 misusing county equipment.) In August 2001, Wrobel and 2 others met with an FBI agent to float similar allegations 3 about Naylon.

4 Wrobel alleges that Naylon and Rider punished him for 5 speaking out against them. Specifically, Naylon harassed 6 him, told him to tell his wife to stay away from all County 7 buildings, and accused him of being in contact with a former 8 Aurora barn employee. Shortly after his transfer to the 9 Tonawanda plant, an Erie County sheriff questioned Wrobel 10 about a theft of wood from the Aurora barn, and Wrobel 11 alleges that the defendants inspired the inquiry.

12 During his tenure at the highway department, Naylon was 13 overt in his dislike for those who had preceded him in the 14 Aurora barn and his desire to purge the facility's 15 hold-overs. Early on, Naylon asked Wrobel, as a 22-year 16 veteran of the Highway department, to advise as to who were 17 the "good guys" and "bad guys," who were the employees that 18 "do their jobs" and who are the "goof offs." Wrobel 19 demurred and told Naylon that he would soon figure it out 20 himself. A few months later, Naylon ordered Wrobel to tell 21 a retired employee, Gary Kane, to stop coming by the Aurora 22 barn. Naylon told Wrobel that "it doesn't look good for me 1 and Joel Giambra and the new administration. He's retired 2 from the Gorski administration, tell him to be on his merry 3 way and enjoy himself." (J.A. 696.) Naylon referred to 4 Kane as part of an "old regime."

5 Two former employees of the Aurora barn similarly 6 suffered under Naylon's management. Anthony Marchitte was 7 transferred from the Aurora barn to the Angola barn against 8 his will, after being told the transfer was "in his best 9 interests." Naylon gloated "the fat cat has just begun to 10 sing . . . all you guys are going to be gone . . . things 11 are really going to change around here." (J.A. 1003.)

12 Wrobel's friend Timothy Elliot was also transferred from the 13 Aurora barn in early 2001. Before his transfer, Naylon 14 called him into his office and told him that "everything has 15 to go through us," "that was the old regime, this is the new 16 regime," and "if you're not with us, you're against us." 17 (J.A. 1008.)

18 Other employees provided similar accounts. Paul 19 Rebrovich was asked by Naylon if he was appointed by Gorski, 20 and whether he was backed by the Gorski administration or 21 the current administration. Rebrovich told him that nobody 22 in his position was appointed by an administration and that 1 he had never been politically active. Naylon also boasted 2 to him that, eventually, "we're going to get our own people 3 in here" and "get rid of this old regime." (J.A. 946-47.) 4 Wrobel's deposition recounts a single instance in which 5 political affiliation was discussed. On Naylon's first day 6 on the job, he asked Wrobel about his political affiliation, 7 and Wrobel told him that he was a Republican (as was 8 ...


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