Neron v. Cossette ( 2011 )

10-2204-cv
Neron v. Cossette
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18th day of April, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 Circuit Judge,
10 MARK R. KRAVITZ,*
11 District Judge.
12
13
14 - - - - - - - - - - - - - - - - - - - -X
15 JOHN NERON,
16
17 Plaintiff-Appellant,
18
19 -v.- 10-2204-cv
20
21 JEFFRY W. COSSETTE,
22
23 Defendant-Appellee.
24 - - - - - - - - - - - - - - - - - - - -X
*
The Honorable Mark R. Kravitz, of the United States
District Court for the District of Connecticut, sitting by
designation.
1
1
2 FOR APPELLANT: SALLY A. ROBERTS (John R. Williams, New
3 Haven, CT, of counsel), Law Office of
4 Peter Upton & Associates, New Britain,
5 CT.
6
7 FOR APPELLEE: JOHN H. GORMAN, City of Meriden
8 Department of Law, Meriden, CT.
9
10 Appeal from a judgment of the United States District
11 Court for the District of Connecticut (Dorsey, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Plaintiff-Appellant John Neron appeals from a judgment
18 entered on March 8, 2010 by the United States District Court
19 for the District of Connecticut (Dorsey, J.), granting
20 summary judgment for Defendant-Appellee Jeffry Cossette, the
21 chief of the Meriden Police Department, on Neron’s First
22 Amendment retaliation claim under 42 U.S.C. § 1983. We
23 assume the parties’ familiarity with the underlying facts,
24 the procedural history, and the issues presented for review.
25
26 A grant of summary judgment is reviewed de novo,
27 “resolv[ing] all ambiguities and draw[ing] all permissible
28 factual inferences in favor of the party against whom
29 summary judgment is sought.” Terry v. Ashcroft, 336 F.3d
30 128, 137 (2d Cir. 2003) (internal quotation marks omitted).
31
32 “To survive summary judgment on a First Amendment
33 retaliation claim, a public employee must bring forth
34 evidence showing that he has engaged in protected First
35 Amendment activity, he suffered an adverse employment
36 action, and there was a causal connection between the
37 protected activity and the adverse employment action.”
38 Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir.
39 2011) (internal quotation marks omitted).
40
41 Neron provides insufficient evidence of causation to
42 warrant “the inference that the protected speech was a
43 substantial motivating factor in the adverse employment
44 action.” Cotarelo v. Village of Sleepy Hollow Police Dep’t,
45 460 F.3d 247, 251 (2d Cir. 2006) (internal quotation marks
46 omitted). He relies exclusively upon the temporal proximity
47 between his complaint to the Connecticut Commission on Human
2
1 Rights and Opportunities (“CCHRO”) and the internal
2 investigations, suspensions, and (allegedly) forced
3 resignation that he faced. Although “[a] plaintiff can
4 establish a causal connection that suggests retaliation by
5 showing that protected activity was close in time to the
6 adverse action,” see Espinal v. Goord, 558 F.3d 119, 129 (2d
7 Cir. 2009), for such a showing to “provide an independent
8 basis for an inference of causation, temporal proximity must
9 be significantly greater” than a case with corroborating
10 evidence. Mandell v. Cnty. of Suffolk, 316 F.3d 368, 384
11 (2d Cir. 2003) (emphasis added).
12
13 Neron was subjected to three internal investigations
14 and two suspensions within three months of his CCHRO
15 complaint. However, the chronology does not support an
16 inference of retaliation: The criminal trespass
17 investigation pre-dated the CCHRO complaint; the second
18 investigation was initiated by a private citizen just two
19 days after CCHRO received Neron’s complaint; and Neron’s
20 involvement in the third investigation, prompted by the
21 discovery of a prisoner’s unsecured property, was not known
22 to the police until after a sergeant began investigating.
23 The second and third investigations were commenced shortly
24 after Neron’s complaint was filed, but Cossette did not
25 initiate them. Nor were the two suspensions so harsh as to
26 raise an inference of retaliation, given the circumstances
27 of each offense, Neron’s recidivism, and his false
28 statements at the disciplinary hearings.
29
30 The investigation of Neron’s mishandling of a domestic
31 relations claim, begun more than twelve months after the
32 CCHRO complaint, is too attenuated to be causal.
33
34 We have considered all of Neron’s arguments and conclude
35 that they lack merit. For the foregoing reasons, we hereby
36 AFFIRM the judgment of the district court.
37
38
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
41
3