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George v. City of Buffalo

United States District Court, W.D. New York

January 31, 2017

WILLIAM GEORGE, Plaintiff,
v.
CITY OF BUFFALO, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge

         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 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 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 report or specified proposed findings or recommendations to which objection is made[, ]” 28 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 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 ...


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