UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on September 20, 2012, is AFFIRMED.
Plaintiff John Puglisi appeals from an award of summary judgment to defendants, the Town of Hempstead Department of Sanitation's Sanitary District No. 2 (the "District"), the District's Board of Commissioners (the "Board"), and various named individuals, on Title VII, First Amendment, and state law claims of retaliation following Puglisi's protected activities related to the race discrimination claim of a fellow employee.
Puglisi contends that, in awarding defendants summary judgment on his claims of retaliatory demotion under Title VII and N.Y. Exec. Law § 296(1)(e),
Puglisi maintains that comments made by defendants Roberts and Meekins, arguable policymakers for the District—that Puglisi had thrown the District "under the bus" in testifying at an employee's race discrimination hearing and had to "go," Puglisi Aff. ¶¶ 9, 11, J.A. 133—evidenced both direct discrimination and pretext. Although the remarks were made over five months before Puglisi was demoted, when we draw all reasonable inferences in Puglisi's favor, we conclude that to the extent the remarks expressly contemplate terminating Puglisi for his participation in a State Department of Human Rights ("SDHR") hearing, they bear some weight in demonstrating discriminatory intent.
But Puglisi's burden requires him to show more than the possibility of retaliatory animus; he was required to adduce sufficient evidence to permit a reasonable jury to find that "but for" defendants' retaliatory bias, he would not have been terminated.
Here, the record shows that Puglisi himself triggered this ruling by repeated inquiries as to whether his position of Assistant to the General Supervisor was properly classified. Karl Kampe, the Executive Director of the Civil Service Commission, initially advised Puglisi that "if there is no major difference in the functions that would elevate a position to a higher or different classification, there is no need to notify the Civil Service Commission" about an internal title such as Assistant to the General Supervisor. Nov. 9, 2007 Letter to Puglisi, J.A. 1822. Puglisi wrote again "to inform [Kampe] that there are major differences in my job functions, duties and responsibilities as Assistant General Supervisor" from what Puglisi performed in his "former position as Sanitation Supervisor." Nov. 27, 2007 Letter to Kampe, J.A. 1824. Puglisi stated that he was "now a salaried, non unit, confidential employee with the responsibilities of supervising six Sanitation, Recycling and Mechanics Supervisors in the daily operations of the District."
Although Puglisi contends that this demotion was unnecessary because defendants had anticipated that, as Assistant to the General Supervisor, he would spend only 30% of his time performing supervisory tasks, he makes no showing that the decision to eliminate a position, at least a third of which he could no longer perform, was in any way a pretext for retaliation. Indeed, that conclusion is reinforced by the lack of evidence that defendants in any way sought to have the Civil Service Commission review Puglisi's position. As already noted, Puglisi alone sought that action. On this record, we are compelled to conclude that no reasonable juror could find that defendants' nondiscriminatory reason for demoting Puglisi was a pretext for a retaliatory animus and that "but for" defendants' desire to retaliate, Puglisi would not have been demoted.
Puglisi claims that defendants violated his First Amendment rights by retaliating against him for testifying in support of another employee. "To state a First Amendment retaliation claim, a plaintiff must establish that: (1) his speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him; and (3) there was a causal connection between this adverse action and the protected speech."
In sum, we conclude, as the district court did, that Puglisi failed to adduce a triable question of fact on his claim of retaliatory demotion. We also conclude that Puglisi's First Amendment claim fails because he cannot demonstrate the requisite causal connection between his demotion and his speech. We have considered Puglisi's remaining arguments and conclude that they are without merit. The judgment of the district court is therefore AFFIRMED.