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Timothy M. Wrobel v. County of Erie


August 1, 2012


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


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.


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 Naylon). Elliot likewise reported a single instance: before 9 his transfer out of Aurora, Naylon said to him "we know you 10 guys are all democrats, hired by the other administration."

11 Wrobel's complaint alleged (relevant to this appeal) 12 that defendants violated his (1) First Amendment right to 13 freedom of association by harassing him because of his 14 political association with the previous county 15 administration and (2) First Amendment right to freedom of 16 speech by retaliating against him for speaking about matters 17 of public concern taking place within the Erie County 18 highway department. An earlier panel of this Court found 19 that both claims were adequately pleaded. See Wrobel v. 20 Cnty. of Erie, 211 F. App'x 71, 72-73 (2d Cir. 2007).

After 21 discovery closed, defendants successfully moved for summary 22 judgment on the ground that Wrobel had adduced insufficient 23 evidence to raise a question of fact on either claim.


2 We review de novo a grant of summary judgment, viewing 3 the evidence in the light most favorable to the non-moving 4 party and drawing all reasonable inferences in that party's 5 favor. See Costello v. City of Burlington, 632 F.3d 41, 45 6 (2d Cir. 2011). Summary judgment is only appropriate when 7 the evidence is "so one-sided that one party must prevail as 8 a matter of law." Kulak v. City of New York, 88 F.3d 63, 70 9 (2d Cir. 1996) (internal quotation marks omitted).


12 "Public employees do not surrender their First 13 Amendment rights to comment on matters of public interest by 14 virtue of their acceptance of government employment." Cobb 15 v. Pozzi, 363 F.3d 89, 101 (2d Cir. 2004) (citing Pickering 16 v. Bd. of Educ., 391 U.S. 563, 568 (1968)). The First 17 Amendment right extends to associational conduct, including 18 the decision not to support or affiliate with a political 19 party or faction. Id. at 102. "[C]onditioning public 20 employment on the provision of support for the favored 21 political party unquestionably inhibits protected belief and 22 association." Rutan v. Repulican Party of Illinois, 497 23 U.S. 62, 69 (1990) (internal quotation marks omitted).

To 1 succeed on a First Amendment claim brought pursuant to 2 Section 1983, a plaintiff must be able to demonstrate that 3 (1) the conduct at issue was constitutionally protected, (2) 4 the alleged retaliatory action adversely affected his 5 constitutionally protected conduct, and (3) a causal 6 relationship existed between the constitutionally protected 7 conduct and the retaliatory action. See Camacho v. Brandon, 8 317 F.3d 153, 160 (2d Cir. 2003).

9 The First Amendment is thus violated when state 10 officials engage in quintessential political patronage, as 11 when a newly-elected county sheriff sought to fire 12 Republican deputies to provide jobs to Democrats, see Elrod 13 v. Burns, 427 U.S. 347, 372-73 (1976) (plurality opinion); 14 when a public defender sought to dismiss Republican 15 assistants based on party affiliation, see Branti v. Finkel, 16 445 U.S. 507, 517 (1980); and when a Governor was giving 17 permission for the hiring, transferring, promotion, and 18 recalling of only state employees who were Democrats, see 19 Rutan, 497 U.S. at 69.

20 The protection of these cases has been extended to 21 politically neutral employees who are treated less favorably 22 than employees politically aligned with those in power, see 23 Welch v. Ciampa, 542 F.3d 927, 939 & n.3 (1st Cir. 2008); 1 Gann v. Cline, 519 F.3d 1090, 1095 (10th Cir. 2008); Galli 2 v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 273 (3d Cir. 3 2007), as well as to employees who suffer because of their 4 political support of a losing faction of the party in power, 5 see McCloud v. Testa, 97 F.3d 1536, 1551 (6th Cir. 1996).

6 However, not every association of a public employee can 7 support a Section 1983 claim. "When employee expression 8 cannot be fairly considered as relating to any matter of 9 political, social, or other concern to the community, 10 government officials should enjoy wide latitude in managing 11 their offices, without intrusive oversight by the judiciary 12 in the name of the First Amendment." Connick v. Myers, 461 13 U.S. 138, 146 (1983). Only if an employee's speech or 14 associational conduct "touches on a matter of public 15 concern" can a First Amendment claim proceed. Cobb, 363 16 F.3d at 102; accord Klug v. Chi. Sch. Reform Bd. of Trs., 17 197 F.3d 853, 857 (7th Cir. 1999); Boals v. Gray, 775 F.2d 18 686, 692 (6th Cir. 1985). Conduct that falls outside this 19 class of activity is beyond the scope of the First 20 Amendment's protections for public employee speech. See 21 Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 781 22 (2d Cir. 1991) ("[N]ot all speech by a public employee can 23 provide the basis for a constitutional cause of action.").

1 The public-concern requirement "reflects both the historical 2 evolvement of the rights of public employees, and the common 3 sense realization that government offices could not function 4 if every employment decision became a constitutional 5 matter." Connick, 461 U.S. at 143. Whether association or 6 speech is on a matter of public concern is a fact-intensive 7 inquiry; nevertheless it is a question of law for the court 8 to decide. See Lewis v. Cohen, 165 F.3d 154, 164 (2d Cir. 9 1999).

10 Wrobel characterizes his associational conduct as "not 11 pledg[ing] his support for the Giambra administration" and 12 "cho[osing] not to affiliate himself politically" with it. 13 (Appellant Br. 11.) In Wrobel's first appeal, we decided 14 that retaliation for such conduct, if adequately proven, 15 could give rise to Section 1983 liability. Wrobel, 211 F. 16 App'x at 72. Accordingly, we now consider only whether the 17 evidence submitted on summary judgment is sufficient to raise 18 a question of material fact, such that a jury could find that 19 Wrobel did in fact engage in associational conduct related to 20 a matter of public concern, and that defendants mistreated 21 him as a result of that conduct.

1 The dispositive issue for Wrobel's free association 2 claim is the causal relationship between the association 3 identified and his transfer. To prove that his political 4 indifference was the reason Naylon and Rider mistreated him, 5 he relies principally on Naylon's references to an "old 6 regime" and a "new regime." Assuming that this designation 7 does in fact distinguish between employees brought in by 8 Naylon and those already there when he arrived, there is no 9 evidence or available inference that this distinction is 10 political in the sense that it relates to any political, 11 social, or other community concern. See Connick, 461 U.S. at 12 146. Wrobel submitted evidence that Naylon questioned him 13 about his friends at work, ordered him to tell a friendly 14 former co-worker to stay away from the Aurora barn, and 15 blamed the "old regime" for difficulties at the Aurora barn. 16 Nothing in the record demonstrates that the dysfunction at 17 the Aurora barn was related to anyone's political 18 association. The record shows instead a toxic form of 19 "office politics" that, no matter how severe or how 20 reprehensible, does not violate the First Amendment. See 21 Klug, 197 F.3d at 858. Wrobel alleges no more than 22 generalized references to a heightened standard of 23 performance in the wake of a change of political regime.

1 That is simply to be expected when the voters replace one set 2 of managers with another; the recently-elected call it 3 reform. Naylon's passing references to a "new regime" and an 4 "old regime", without more, cannot transform incompetent and 5 heavy-handed management into a violation of the First 6 Amendment.

7 Wrobel points to one sentence of Timothy Elliot's 8 affidavit, quoting Naylon as stating "we know you guys are 9 all democrats, hired by the other administration." (J.A. 10 1008.) This statement is not enough to create an issue of 11 material fact as to whether Wrobel was being retaliated 12 against for protected associational conduct: Naylon knew 13 Wrobel to be a Republican. And the content of the Elliot 14 affidavit renders any inference in Wrobel's favor even more 15 implausible. Naylon also told Elliot that "we're forming a 16 new team and I want to know if you're going to be on my 17 team." (J.A. 1008.) This invitation is incompatible with 18 the idea that Naylon was rejecting employees on the basis of 19 partisan favoritism.

20 The record does support Wrobel's assertion that he did 21 not pledge support for or politically align himself with the 22 Giambra administration. That association, however, is a non 23 sequitur in the context of this case. Wrobel was never asked 1 to donate to, volunteer for, or lend support to any political 2 candidate when Naylon was his supervisor. Other than being a 3 registered Republican (the same as Naylon and Rider), he had 4 no political affiliation or alliance at the office, and never 5 discussed politics with anyone at the office. True, an 6 employee can no more be discriminated against for being 7 apolitical than for being a member of the wrong political 8 party. See Morin v. Tormey, 626 F.3d 40, 44 (2d Cir. 2010).

9 However, the record must still support the fact that such a 10 political association exists. Wrobel cites no evidence 11 showing that any employee did politically align with or 12 pledge allegiance to the Giambra administration, how an 13 employee would do that, or how he would be rewarded for doing 14 so.

15 There is good reason to hold the plaintiff to his burden 16 of proof in a free association case such as this. New 17 administrations and officials will often be brought into 18 office specifically because of dissatisfaction with the 19 status quo, and may be expected to implement reforms. Old 20 employees, especially those in under-performing jobs or 21 facilities, will often be let go to make room for employees 22 who are more capable, trusted or enthusiastic. There is 23 record evidence that Naylon and others believed the Aurora 1 barn to be troubled. It is to be expected that employees 2 affected by a new regime may resist reform measures 3 regardless of political loyalties. Moreover, in a reform 4 context, it is to be expected that employees will be fired, 5 demoted, or transferred soon after the change in 6 administration, with the result that there is temporal 7 proximity between the change in "regime" and the adverse 8 employment action.

9 Absent evidence that the adverse employment action was 10 politically motivated, the First Amendment gives a court no 11 license to intervene in a public workplace whenever a new 12 administration redeploys its workforce. Evidence of 13 political motivation can take different forms. In cases of 14 patronage, the record will often reveal that the plaintiffs 15 were replaced by members or supporters of the ascendant 16 party, or treated less favorably. See, e.g., Elrod, 427 U.S. 17 at 351. This is so even if the associational conduct was the 18 decision not to politically associate. See Welch, 542 F.3d 19 at 935 (plaintiff replaced by "vocal supporter" of prevailing 20 faction); Galli, 490 F.3d at 269 (plaintiff told by superior 21 that her office was "letting Republicans go," that "some 22 Democrat [obviously] wants the spot," and that one has to 23 "pay to play with this administration" (alterations in 16 1 Galli)).

Evidence of political motivation may come in the 2 form of overt pressure to work in a campaign, or donate to 3 it, or vote a certain way. But unless evidence is required 4 that an employee was adversely treated on account of a 5 political association or abstention, any mistreatment of an 6 apolitical public employee would go to a jury on a 7 constitutional claim. See Galli, 490 F.3d at 277 (Baylson, 8 J., dissenting).

9 Wrobel has not sustained his burden at summary judgment 10 of creating a genuine issue of fact as to whether his 11 mistreatment was the result of his lack of political 12 allegiance to the new administration. There is ample 13 evidence that the new administration viewed the Aurora barn 14 as in need of reform. It is not enough for Wrobel to show 15 mistreatment coupled with political abstention--there must be 16 some evidence that the two are related, or an available 17 inference that it is so. Naylon's passing references to the 18 "old regime" adds little or nothing. New appointees may 19 always be expected to avow an improvement in public services.

20 To survive a motion under Rule 56(c), Wrobel needed to create 21 more than a "metaphysical" possibility that his allegations 22 were correct; he needed to "come forward with specific facts 23 showing that there is a genuine issue for trial." Matsushita 1 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 2 586-87 (1986) (internal quotation marks omitted). He has 3 not.

5 II

6 Wrobel's second claim is that he suffered retaliation 7 for speaking out against Naylon and Rider's treatment of 8 employees and misuse of county property. The showing 9 required for a free speech claim is the same as for a free 10 association claim. To prevail on a Section 1983 free speech 11 claim, a public employee must demonstrate (1) his speech 12 addressed a matter of public concern, (2) he suffered an 13 adverse employment action, and (3) a causal connection 14 between the speech and the adverse employment action. Singh 15 v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008). Even 16 assuming that Wrobel has identified speech that touches on a 17 matter of public concern, he has failed to show an adverse 18 employment action or a causal connection between the speech 19 and employment conditions that Wrobel deems adverse.

21 A

22 Wrobel cites four instances of speech touching on a 23 matter of public concern: (1) a May 1, 2001 letter to the 1 state chairman of the Democratic party complaining of 2 Naylon's management style, misuse of county property, and 3 corruption; (2) a similar letter sent to the New York State 4 attorney general on May 17, 2001; (3) a July 2001 phone call 5 by Wrobel's wife to the New York attorney general's office, 6 the content of which is unknown; and (4) an August 23, 2001 7 meeting in which the Wrobels and other county workers met 8 with an FBI agent to complain about Naylon's management 9 style, misuse of county property, and corruption. 10 Not all of the communications can be attributed to 11 Wrobel, and not all address matters of public concern.

The 12 letters to public officials were anonymous. There is no 13 evidence in the record of a July 2001 phone call allegedly 14 made by Wrobel's wife and, in any event, there is nothing to 15 suggest that Wrobel participated in such a call.

The 16 grievances of the county employees related chiefly to the 17 internal workings of the highway department, such as Naylon's 18 mistreatment of employees, and therefore were not of public 19 concern. See Connick, 461 U.S. at 147.

20 Nevertheless, we can safely assume for purposes of this 21 appeal that Wrobel has proffered some evidence of speech on 22 matters of public concern. Wrobel's statements that Naylon 23 misused county equipment, falsified records, and directed 1 county business to friends are arguably of public interest.

2 See Johnson v. Ganim, 342 F.3d 105, 112-13 (2d Cir. 2003). 3 "[M]atters of public concern do include speech aimed at 4 uncovering wrongdoing or breaches of the public trust." 5 Glass v. Dachel, 2 F.3d 733, 741 (7th Cir. 1993).

8 B

9 "In the context of a First Amendment retaliation claim, 10 we have held that only retaliatory conduct that would deter a 11 similarly situated individual of ordinary firmness from 12 exercising his or her constitutional rights constitutes an 13 adverse action." Zelnik v. Fashion Inst. of Tech., 464 F.3d 14 217, 225 (2d Cir. 2006) (internal quotation marks and 15 alterations omitted); see also Burlington N. & Santa Fe Ry. 16 Co. v. White, 548 U.S. 53, 57 (2006) (holding that 17 antiretaliation provisions of Title VII apply where employers 18 actions "could well dissuade a reasonable worker from making 19 or supporting a charge of discrimination"). The list of 20 adverse actions has included harsh measures, such as 21 discharge, refusal to hire, refusal to promote, reduction in 22 pay, and reprimand, as well as some lesser sanctions, such as 23 failure to process a teacher's insurance form, demotion, 1 reassignment to a place that aggravated physical 2 disabilities, and express accusations of lying. Id.

3 The main act of retaliation cited by Wrobel--his transfer 4 to Tonowanda--predates his speech on a matter of public 5 concern. To fill that gap, Wrobel relies on three more acts 6 of retaliation that began soon after the anonymous letters 7 were sent: (1) a July 1, 2001 "interrogation," undertaken by 8 Rider without the presence of a union representative, in 9 which he told Wrobel to tell his wife to "stay out of the 10 County buildings"; (2) Wrobel's questioning by a county 11 sheriff about a theft at the Aurora barn; and (3) defendants' 12 (orchestrated) false testimony at Wrobel's arbitration 13 hearing in 2002.*fn1

14 As to (1) and (2), such de minimis slights and insults do 15 not amount to retaliation. Id. "It would trivialize the 16 First Amendment to hold that harassment for exercising the 17 right of free speech was always actionable no matter how 18 unlikely to deter a person of ordinary firmness from that 1 exercise." Id. at 226 (internal quotation marks omitted).*fn2 2 The evidence does not support an inference that the July 1 3 interaction between Rider and Wrobel was the type of conduct 4 that would "deter an individual of ordinary firmness from 5 exercising his or her constitutional rights." Zelnik, 464 6 F.3d at 225

The same is true of the sheriff deputy's 7 questioning of Wrobel. No competent evidence suggests that 8 defendants initiated the investigation or accused Wrobel of 9 theft, and the entire encounter consisted of a few polite 10 questions, after which Wrobel was left alone.

11 The incident involving the grievance hearing contesting 12 Wrobel's transfer has no support in the record. Wrobel's 13 brief speculates, "on information and belief," that 14 defendants "encouraged and bribed employees to testify 15 against Mr. Wrobel, offering at least one employee a 16 promotion in exchange for his negative testimony."

17 (Appellant's Br. 43.) The only evidence cited is an email 18 from Rider to Naylon asking him to attend the hearing and 19 bring other employees who did "not want him back." The email 1 is evidence that defendants disliked Wrobel; but Rider's 2 defense of his past decision to transfer Wrobel is not 3 retaliatory.


6 Even if Wrobel had produced evidence that defendants took 7 action sufficiently severe to constitute retaliation, Wrobel 8 would still be required to produce evidence of a causal 9 relationship between his speech--sending anonymous letters to 10 state officials, and speaking confidentially with the FBI-- 11 and the retaliation.

12 A causal relationship can be demonstrated either 13 indirectly by means of circumstantial evidence, including 14 that the protected speech was followed by adverse treatment, 15 or by direct evidence of animus. See Mandell v. Cnty. of 16 Suffolk, 316 F.3d 368, 383 (2d Cir. 2003). The sufficiency 17 of such circumstantial evidence depends on the circumstances 18 of each case. However, when (as here) the speech was made 19 anonymously or confidentially, "[i]t is only intuitive that 20 for protected conduct to be a substantial or motiving factor 21 in a decision, the decisionmakers must be aware of the 22 protected conduct." Ambrose v. Twp. of Robinson, 303 F.3d 23 488, 493 (3d Cir. 2002).

1 Wrobel argues that a jury could infer that defendants 2 knew of his speech because they became aware in August 2001 3 that someone had anonymously submitted photographs of highway 4 department personnel using county equipment on private 5 property. It would be wholly speculative, however, for a 6 jury to find that defendants believed Wrobel was the person 7 responsible for these photographs. Wrobel argues for the 8 inference on the basis that in April 2002 Rider called 9 Wrobel's wife a "liar" at an arbitration concerning his 10 transfer to Tonawanda. The incident occurred eight months 11 later, and Rider's statement is vague and without context.*fn3 A 12 reasonable jury could not find a causal connection between 13 Wrobel's confidential and anonymous statements, and the 14 conduct alleged to be retaliatory.


17 For the foregoing reasons, we affirm the judgment of the 18 district court.

1 CALABRESI, J., dissenting:

2 I agree with the majority opinion in its description of the facts and history of this case, its 3 statements of the controlling law in Parts I and II, and its ruling that Wrobel failed to raise 4 questions of material fact warranting a trial on his First Amendment speech claim. I respectfully 5 dissent, however, because I believe that Wrobel has adduced sufficient evidence to permit a trial 6 on his First Amendment political association claim.

7 Undoubtedly, newly elected administrations are permitted to pursue reform. Such reform 8 might well include ridding a public agency of underperforming employees hired by preceding 9 administrations. And there is certainly evidence in the record that supports the defendants' 10 claims that Wrobel and other employees hired by the preceding administrations were disobedient 11 and inefficient. Even if these claims were shown to be true, however, the record is also rife with 12 allegations of the defendants harassing their employees or otherwise treating them uncivilly. The 13 tactics allegedly adopted by the defendants remind us that "reform" may carry its own abuses.

14 But such abuses, as the majority rightly emphasizes, do not without more amount to a federal 1 claim. Specifically, for a First Amendment political association claim to be valid, there must be 2 evidence that the abuses were politically motivated.

3 Unlike the majority, I believe that the record before us contains evidence that would 4 permit a jury to conclude that an impermissible political agenda motivated the defendants' 5 treatment of Wrobel. Considered on their own and without some indication of a political context, 6 Naylon's many references to replacing "old regimes" with "new regimes" and forming "new 7 teams" do not carry political valence. These terms could simply serve, in Naylon's manner of 8 talking, to draw non-political lines between previously hired workers and Giambra's newer, and 9 assertedly more effective, employees. In this I agree with the majority. Nevertheless, there is one 10 statement in the record--acknowledged, but I think undervalued, by the majority--that I think 11 would allow a jury to read political valences into all those otherwise neutral references.

12 Timothy Elliott stated in his affidavit of May 24, 2010: "At one point during one of the 13 initial conversations I had with Naylon, he told me that, 'we know you guys are all democrats, 14 hired by the other administration'. . . ." As I read the record, a jury could find that Naylon's 15 remark about "democrats" was made in the same time frame as his other statements regarding 1 "regimes" and "teams." And, if it did so find, a jury could conclude that, for Naylon, the "old 2 regime" was equivalent to "democrats," i.e., Naylon's political antagonists. A jury could then 3 reasonably also find that Naylon's campaign to "get rid of [the] old regime" constituted a 4 politically motivated purge.

5 Of course, Wrobel had declared himself a Republican during an early meeting with 6 Naylon. But Wrobel has also alleged that--notwithstanding this early declaration-- 7 Naylon later accused him of being part of the "old regime" and "in the same boat" as Elliott and 8 other pre-Giambra hires. In light of Wrobel's allegations and Elliott's testimony, it would be 9 entirely plausible for a jury to conclude (a) that Naylon considered Wrobel part of a faction 10 politically opposed to Giambra, and (b) that Naylon took adverse actions against him for this 11 reason.

12 The facts of this case render our disposition a close call. But, all things considered, I 13 would let a jury decide the validity of Wrobel's political association claim. For that reason, I 14 respectfully DISSENT.

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