Filed: Mar. 26, 2013
Latest Update: Mar. 28, 2017
Summary: 12-1127-cv Monz v. Rocky Point Fire District, 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 NO
Summary: 12-1127-cv Monz v. Rocky Point Fire District, 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 NOT..
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12-1127-cv
Monz v. Rocky Point Fire District, 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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of March, two thousand thirteen.
5
6 PRESENT: RICHARD C. WESLEY,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges,
9 VINCENT L. BRICCETTI,
10 District Judge.*
11
12
13
14 KENNETH MONZ,
15
16 Plaintiff-Appellant,
17
18 -v.- 12-1127-cv
19
20 ROCKY POINT FIRE DISTRICT, ANTHONY GALLINO,
21 INDIVIDUALLY AND IN HIS CAPACITY AS CHAIRMAN
22 OF THE BOARD OF THE ROCKY POINT FIRE
23 DISTRICT BOARD OF FIRE COMMISSIONERS,
24 WILLIAM LATTMAN, DAVID BREWER, INDIVIDUALLY
25 AND IN THEIR OFFICIAL CAPACITIES AS MEMBERS
26 OF THE ROCKY POINT FIRE DISTRICT BOARD OF FIRE
27 COMMISSIONERS,
28
29 Defendants-Appellees,
*
The Honorable Vincent L. Briccetti, of the United States
District Court for the Southern District of New York, sitting by
designation.
1 ROCKY POINT FIRE DEPARTMENT,
2 ENGINE CO. #1, OF THE ROCKY POINT FIRE
3 DEPARTMENT, ALFONSE TIZANO, ANN LOGAN,
4
5 Defendants.
6
7
8 FOR APPELLANT: SCOTT J. KREPPEIN, Hagney, Quatela,
9 Hargraves & Mari PLLC, Hauppauge, NY.
10
11 FOR APPELLEES: JAMES J. KEEFE, Mineola, NY.
12
13 Appeal from the United States District Court for the
14 Eastern District of New York (Seybert, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the United States District
18 Court for the Eastern District of New York is AFFIRMED.
19 Plaintiff-Appellant Kenneth Monz (“Monz”) appeals from
20 a February 15, 2012 Memorandum and Order of the United
21 States District Court for the Eastern District of New York
22 (Seybert, J.) granting Defendants-Appellees’ Rule 50(b)
23 motion for judgment as a matter of law. The district court
24 entered judgment as a matter of law and dismissed Monz’s
25 First Amendment retaliation claim, brought under 42 U.S.C. §
26 1983, after a jury reached a verdict in favor of Monz and
27 awarded him $350,000 in compensatory damages. We assume the
28 parties’ familiarity with the underlying facts, the
29 procedural history, and the issues presented for review.
30
2
1 “We review de novo a district court’s decision to grant
2 a Rule 50 motion for judgment as a matter of law, applying
3 the same standard as the district court.” Cash v. Cnty. of
4 Erie, 654 F.3d 324, 332-33 (2d Cir. 2011) (internal
5 citations omitted). This standard is quite stringent;
6 judgment as a matter of law is appropriate “only when ‘a
7 party has been fully heard on an issue during a jury trial
8 and the court finds that a reasonable jury would not have a
9 legally sufficient evidentiary basis to find for the party
10 on that issue.’” Id. (quoting Fed. R. Civ. P. 50(a)(1)). In
11 a case like this one, where the jury has already returned a
12 verdict in favor of the non-movant, the burden is
13 “particularly heavy,” and we should uphold the district
14 court’s decision only “if there exists such a complete
15 absence of evidence supporting the verdict that the jury’s
16 findings could only have been the result of sheer surmise
17 and conjecture, or the evidence in favor of the movant is so
18 overwhelming that reasonable and fair minded persons could
19 not arrive at a verdict against it.” See id. (internal
20 quotation marks omitted).
21 To succeed on his First Amendment retaliation claim, a
22 plaintiff must present legally sufficient evidence for the
23 jury to find it more likely than not that “(1) his speech
3
1 was constitutionally protected, (2) he suffered an adverse
2 employment decision, and (3) a causal connection exists
3 between his speech and the adverse employment determination
4 against him, so that it can be said that his speech was a
5 motivating factor in the determination.”2 Gorman-Bakos v.
6 Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545,
7 553 (2d Cir. 2001) (quoting Morris v. Lindau,
196 F.3d 102,
8 110 (2d Cir. 1999)). Here, the only issue submitted to the
9 jury was causation, namely, whether Defendants-Appellees
10 retaliated against Monz on the basis of his protected
11 speech.
12 Monz served as a volunteer firefighter in the Rocky
13 Point Fire District (the “District”) on-and-off for
14 approximately thirty years. In or around 2001, Monz
2
The district court and the parties operated under the
belief that the commissioners’ refusal to reinstate Monz as
a volunteer firefighter qualified as an adverse employment
action. Thus, the parties did not argue the issue below or
brief the issue on appeal. We assume, without deciding,
that a volunteer position is a government benefit for
purposes of a First Amendment retaliation claim. See
Gorman-Bakos v. Cornell Co-op Extension of Schenectady
Cnty., 252 F.3d 545, 551 n.2 (2d Cir. 2001). But we note
the existence of a recent decision from the New York Court
of Appeals that may counsel otherwise. M.G.M. Insulation,
Inc. v. Gardner, 2013 WL 598058 (N.Y. Feb. 19, 2013). In
M.G.M., the New York Court determined that a volunteer fire
corporation is not a specified public entity within the
meaning of the prevailing wage requirement of Labor Law §
220. Id.
4
1 expressed his dismay with the extent of drinking occurring
2 in the firehouses in the District. Monz successfully
3 lobbied for changes to the hours volunteer firefighters
4 could consume alcoholic beverages on site. Not everyone in
5 the District supported the reduced hours, including
6 Defendant-Appellee William Lattman (“Lattman”) and non-party
7 Raymond “Hank” Strong (“Strong”). As Chief of the fire
8 department however, Lattman did enforce the restricted
9 hours.
10 During the 2002-2003 election season within the
11 District, Monz ran for the position of third assistant chief
12 of the department and Lattman ran against Defendant Ann
13 Logan for one of five commissioner seats. As the captain of
14 Company No. 1 within the fire department, Monz allowed both
15 candidates to put up campaign posters in his company’s
16 firehouse. One night, two members of Company No. 2 (to
17 which both Lattman and Strong belonged) defaced Logan’s
18 poster. Monz was angry about the incident and he argued
19 with then-Assistant Chief Strong to have the two
20 firefighters suspended from participating in the fire
21 department’s social events for six months. No discipline
22 was meted out. Monz subsequently lost the election for
23 third assistant chief.
5
1 Shortly thereafter, Monz was unable to devote
2 sufficient time to his job as a volunteer firefighter
3 because his wife and son took ill. Monz applied for a leave
4 of absence which was denied. In November 2003, Monz
5 resigned. Then-Chief Strong noted on Monz’s resignation
6 letter that Monz resigned in “bad standing” because his
7 percentage of participation in fire department events was
8 only 1.9% rather than the requisite 15%. After observing
9 the one-year waiting period, Monz applied for reinstatement.
10 Although the volunteer firefighters collectively voted to
11 reinstate Monz, his application was denied by the
12 commissioners because the three Defendants-Appellees named
13 herein voted against him.
14 Monz brought this action under Section 1983 claiming
15 that Defendants-Appellees refused to reinstate him because
16 of his protected speech about limiting drinking in the
17 firehouses and the fire department’s general “frat boy”
18 image. At trial, the jury heard evidence related to both
19 the drinking-hours incident and the campaign-poster
20 incident. However, as the district court rightly
21 determined, only the former matter involved protected speech
22 by virtue of being on a topic of “public concern.” See Ross
23 v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012). Monz’s
6
1 efforts to have the two members of Company No. 2 who defaced
2 the campaign poster disciplined were not constitutionally
3 protected because these expressions were made pursuant to
4 his “official duties” as captain of Company No. 1. See
5 Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006). Thus,
6 only the former episode could serve as an appropriate basis
7 for unlawful retaliation – a fact that the jury may not have
8 clearly understood.
9 We agree with the district court that the jury’s
10 verdict that Monz’s speech regarding the drinking hours was
11 a substantial or motivating factor in the commissioners’
12 refusal to reinstate him is not supported by legally
13 sufficient evidence. While testifying about his decision to
14 push for a social suspension following the campaign-poster
15 incident, Monz explained that he was cautious because he had
16 thought about running for Chief in the future and he
17 knew that being Company 2, it was going
18 to be a problem. The drinking thing’s
19 forgotten about, we are all pals, hanging
20 out, going to Chief Bill [Lattman] and
21 Hank [Strong] invited me to chiefs
22 council meetings, to see what it’s about
23 being a chief, I loved it.
24
25 (JA 51.)
26 In conjunction with the absence of direct evidence that
27 Defendants-Appellees refused to reinstate Monz because of
7
1 his speech regarding drinking in the firehouses, Monz’s low
2 percentage of participation prior to his resignation, and
3 the approximate four-year interlude between the drinking-
4 hours incident and the alleged retaliation, we find that
5 Monz did not present legally sufficient evidence for the
6 jury to find in his favor.
7 For the foregoing reasons, the judgment of the district
8 court is hereby AFFIRMED.
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
8
