Smeraldo v. City of Jamestown , 512 F. App'x 32 ( 2013 )

11-4902-cv
Smeraldo v. City of Jamestown, et al.
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Street, in the City of New York, on the 21st
day of February, two thousand thirteen.
PRESENT:
JOHN M. WALKER, JR.,
JOSÉ A. CABRANES,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
TIMOTHY J. SMERALDO,
Plaintiff-Appellant,
v. No. 11-4902-cv
CITY OF JAMESTOWN, REXFORD H. RATER,
BARRY L. SWANSON, LEE C. DAVIES, ROBERT
SAMUELSON,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: JOHN J. KEENAN, Colucci & Gallaher, P.C.,
Buffalo, NY.
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FOR DEFENDANTS-APPELLEES: MARILYN FIORE-LEHMAN, Corporation
Counsel, City of Jamestown, Jamestown, NY.
Appeal from a October 26, 2011 judgment of the United States District Court for the
Western District of New York (William M. Skretny, Chief Judge).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Timothy Smeraldo (“Smeraldo”), appeals from the District Court’s grant
of summary judgment for defendants-appellees, City of Jamestown and four of its police officers
(jointly “defendants”), in an action alleging violations of Smeraldo’s rights under the First and
Fourteenth Amendments and for breach of contract and tortious interference with governmental
processes. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
Smeraldo claims that, prior to initiating this lawsuit, he was employed as a police officer with
the Jamestown Police Department (“JPD”) for nearly ten years. During this period, JPD served
Smeraldo with disciplinary charges on May 22, 2006. On June 28, 2006, Smeraldo entered into an
agreement with JPD, that included a number of conditions (such as a demotion in rank and a
suspension without pay) in satisfaction of these charges.
Following two comments that Smeraldo made in March 2007—one at a funeral home and
the other while on duty at a “line-up”—Smeraldo was served with another set of disciplinary charges
by JPD on April 6, 2007. These charges were heard in proceedings before a hearing officer,
pursuant to § 75 of the New York Civil Service Law, wherein both Smeraldo and JPD were
represented by counsel. Following a full hearing, which included the right to present evidence and
to cross-examine witnesses, the hearing officer found that JPD had failed to meet its burden of
proof with respect to the funeral home comment, but concluded that it had made the requisite
showing regarding the “line-up” comment. On this basis, the hearing officer sustained JPD’s
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proposed penalty of termination of Smeraldo’s employment. Relying on the conclusion of the
hearing officer, JPD fired Smeraldo on November 28, 2007; Smeraldo appealed his termination. On
October 3, 2008, the Appellate Division of the New York Supreme Court rejected Smeraldo’s
arguments on appeal and confirmed the decision to terminate his employment. Smeraldo v. Rater, 864
N.Y.S.2d 596 (4th Dep’t 2008).
Smeraldo commenced this action on March 12, 2009. On October 26, 2011, the District
Court granted summary judgment in favor of defendants. On appeal, Smeraldo argues that the
District Court erred in granting summary judgment for defendants. We review an order granting
summary judgment de novo and “resolv[e] all ambiguities and draw[] all permissible factual inferences
in favor of the party against whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97
(2d Cir. 2010) (internal quotation marks omitted); see also FED. R. CIV. P. 56.
Smeraldo first argues that defendants’ summary judgment motion was improperly based on
an attorney affidavit because the attorney lacked personal knowledge of the affidavit’s substance.
Consequently, Smeraldo claims that the District Court erred in granting defendants’ motion for
summary judgment. While it is generally true that “[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge,” FED. R. CIV. P. 56(c)(4), the affidavit in the
instant case is more akin to an “adversarial memorandum than a bona fide affidavit,” Hollander v. Am.
Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) (internal quotation marks omitted), abrogated on other
grounds by Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000). In such circumstances, “a court may, in
considering a motion for summary judgment, simply decline to consider those aspects of a
supporting affidavit that do not appear to be based on personal knowledge or are otherwise
inadmissible.” Doe v. Nat’l Bd. of Podiatric Med. Exam’rs, No. 03-CV-4034, 2004 WL 912599, at *4
(S.D.N.Y. Apr. 29, 2004) (collecting cases). This is what the District Court appears to have done
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with respect to defendants’ motion.1 The District Court treated the affidavits as attorney argument,
relying only upon exhibits attached to them—such as the settlement agreement between the parties
and the report of the hearing officer—that it was otherwise entitled to consider on its own motion.
See, e.g., Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003) (noting that “we have previously
upheld a district court’s dismissal of a case on collateral estoppel grounds” where it was raised by the
district court sua sponte); Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998) (“Although the district court
raised the issue of collateral estoppel sua sponte, this decision does not require reversal.”).
Smeraldo also argues on appeal that the District Court improperly considered new issues
raised by defendants for the first time in their reply brief, a decision which is reviewed for an abuse
of discretion, see Bayway Ref. Co. v. Oxygenated Mktg. and Trading A.G., 215 F.3d 219, 226 (2d Cir.
2000). Smeraldo claims also that the District Court erred by raising issues sua sponte without allowing
the parties an opportunity for supplemental briefing. Upon review, we find no abuse of discretion
by the District Court in allowing defendants’ reply brief nor do we find any error in the District
Court’s decision not to allow supplemental briefing. The District Court granted summary judgment
on two of Smeraldo’s claims—the hostile work environment claim and the claim of duress with
regard to the contract—based on the doctrine of collateral estoppel, which it was free to raise sua
sponte, even without permitting an adversely affected party an opportunity to argue the issue. See
Curry, 316 F.3d at 331 (noting that a district court may dismiss “a case on collateral estoppel grounds
even where collateral estoppel was not raised as an affirmative defense in the answer, but was raised
by the district court sua sponte, without permitting the party against which it was asserted an
opportunity to argue the issue”); Pfrommer, 148 F.3d at 80. Furthermore, Smeraldo had ample notice
that collateral estoppel was one of the potential grounds for summary judgment, as the affidavit
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Smeraldo also claims that the District Court erred in resolving questions of fact in favor of defendants and
applying an incorrect standard to review a motion for summary judgment. Upon review, we find no merit to these
claims.
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accompanying defendants’ motion argued that dismissal was required “based in part on the doctrine
of collateral estoppel.”
In addition, the District Court considered claims by Smeraldo which were not barred due to
collateral estoppel and dismissed them for reasons—such as a lack of factual support for his
allegations, failure to state an actionable claim, or reliance on allegations which contravened prior,
preclusive findings—which did not rely on new issues raised by defendants nor required
supplemental argument.
Finally, Smeraldo argues that the District Court improperly drew inferences and decided
questions of fact in defendants’ favor. See Town of Southhold v. Town of E. Hampton, 477 F.3d 38, 46
(2d Cir. 2007). After reviewing the District Court’s conclusions de novo, we agree with its reasoning
for all of its decisions and find no error, save for its determination that Smeraldo’s hostile work
environment claim was precluded.
The District Court found Smeraldo’s hostile work environment claim precluded because,
“[i]n both [Smeraldo’s] Complaint and civil hearing, he alleged that Defendants acted in a manner to
threaten or intimidate him.” Because the hearing officer concluded that “the record does not
contain [evidence of] different treatment for a similarly situated employee,” the District Court
reasoned that this conduct could not form the basis of a hostile work environment claim. However,
Smeraldo’s evidence of disrespectful treatment at the administrative hearing was offered to
demonstrate a culture of disrespectful conduct “to ease tension, pressure, or stress,” while the
hearing officer’s finding of no different treatment was in response to Smeraldo’s claim that he had
been singled out for punishment. The hearing officer’s finding that there was no differential
treatment was therefore unrelated to Smeraldo’s allegations of threatening conduct, and as a result
the hearing officer’s conclusion cannot preclude the hostile work environment claim now before us.
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Furthermore, the events forming the basis of the hostile work environment claim are
different from those raised as evidence of disrespectful treatment in the administrative hearing. In
the administrative hearing, Smeraldo noted that one co-worker put a decal on his truck that depicted
a cartoon character urinating on Smeraldo’s badge number and that there was a grease board in the
locker room that had disrespectful statements directed toward Smeraldo. Smeraldo claims that
certain defendants collaborated in putting a whiteboard, with Smeraldo’s badge number on it, in a
prominent part of the firing range and firing at it.
A plaintiff presents an actionable claim of a hostile work environment “when the work place
is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victims’s employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted).
If the conduct complained of is not so severe as to create an environment that a reasonable person
would find hostile or abusive, the plaintiff does not have an actionable claim. Id. The Supreme
Court has cautioned that the alleged unlawful conduct does not have to be so serious as to cause
psychological harm, id. at 21-22, but rather, the allegations may still give rise to a legitimate claim if
they are serious enough to “detract from employees’ job performance, discourage employees from
remaining on the job, or keep them from advancing in their careers.” Id. at 22. All of the
circumstances must be considered, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id. at 22-23.
In neither his complaint nor in his opposition to defendants’ motion for summary judgment
does Smeraldo allege that the whiteboard incident affected him. Accordingly, we hold that Smeraldo
has not stated a claim upon which relief can be granted and affirm the District Court’s grant of
summary judgment.
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CONCLUSION
We have considered all of Smeraldo’s arguments on appeal and find them to be without
merit. Accordingly, we AFFIRM the October 26, 2011 judgment of the District Court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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