Delano v. City of Buffalo

14-3698
Delano v. City of Buffalo

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 17th day of December, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL
8 GUIDO CALABRESI,
9 Circuit Judges.
10
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12 DENNIS DELANO,
13 Plaintiff-Appellant,
14
15 -v.- 14-3698
16
17 CITY OF BUFFALO, BUFFALO POLICE
18 DEPARTMENT, H. MCCARTHY GIPSON,
19 individually and in his former
20 capacity as police commissioner of the
21 City of Buffalo, DANIEL DERENDA,
22 individually and in his capacity as
23 deputy police commissioner of the City
24 of Buffalo and interim police
25 commissioner of the City of Buffalo,
26 DENNIS RICHARDS, individually and in
27 his capacity as chief of detectives of
28 the Buffalo Police Department, BYRON

1
 1 BROWN, individually and in his
2 capacity as mayor of the City of
3 Buffalo,
4 Defendants-Appellees.
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6
7 FOR APPELLANT: STEVEN M. COHEN (with Diane R.
8 Tiveron on the brief),
9 HoganWillig, PLLC, Amherst, New
10 York.
11
12 FOR APPELLEES: JOSEPH SCOTT BROWN (with Adam
13 Walter Perry and Michael Brian
14 Risman on the brief), Hodgson
15 Russ LLP, Buffalo, New York, for
16 Defendants-Appellees City of
17 Buffalo, Buffalo Police
18 Department, Daniel Derenda,
19 Dennis Richards, and Byron
20 Brown.
21
22 PAUL A. WOODARD (with Terrence
23 M. Connors and James W. Grable,
24 Jr., on the brief), Connors &
25 Vilardo, LLP, Buffalo, New York,
26 for Defendant-Appellee H.
27 McCarthy Gipson.
28
29 Appeal from a judgment of the United States District
30 Court for the Western District of New York (Skretny, J.).
31
32 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
33 AND DECREED that the judgment of the district court be
34 AFFIRMED.
35
36 Dennis Delano, a decorated Buffalo police officer,
37 appeals from the judgment of the United States District
38 Court for the Western District of New York (Skretny, J.),
39 dismissing his First Amendment retaliation complaint against
40 the City of Buffalo, the Buffalo Police Department, Police
41 Commissioner H. McCarthy Gipson, Mayor Byron Brown, and
42 others (collectively, “defendants”). We assume the parties’
43 familiarity with the underlying facts, the procedural
44 history, and the issues presented for review.
45

2
 1 Delano contends that the district court improperly
2 granted summary judgment on his First Amendment retaliation
3 claim.1 We agree with the district court that Delano’s
4 speech was protected because he was speaking as a citizen on
5 a matter of public concern. See Sousa v. Roque, 578 F.3d
6 164, 170 (2d Cir. 2009) (citing Garcetti v. Ceballos, 547
7 U.S. 410, 418 (2006)). And there is no dispute that
8 Delano’s 60-day suspension was an adverse action and that it
9 was motivated at least in part by Delano’s protected speech.
10 See Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d
11 Cir. 2006). Since Delano does not appeal the dismissal of
12 claims against the other individual defendants (on the
13 ground they were not “personally involved”), and since
14 plaintiff has abandoned his claims against the City of
15 Buffalo and the Buffalo Police Department, Gipson is the
16 remaining defendant. So the decisive question is whether
17 Gipson had “an adequate justification for treating [Delano]
18 differently from any other member of the general public”
19 based on the government’s needs as an employer. See
20 Garcetti, 547 U.S. at 418.
21
22 The defendant has “the burden to show that the
23 employee’s activity is disruptive to the internal operations
24 of the governmental unit in question.” Melzer v. Bd. of
25 Educ. Of City Sch. Dist. Of City of N.Y., 336 F.3d 185, 197
26 (2d Cir. 2003). An adverse employment action will be upheld
27 if “(1) the employer's prediction of disruption is
28 reasonable; (2) the potential disruptiveness is enough to
29 outweigh the value of the speech; and (3) the employer took
30 action against the employee based on this disruption and not
31 in retaliation for the speech.” Locurto v. Giuliani, 447
32 F.3d 159, 172-73 (2d Cir. 2006). “The disruption must be
33 significant enough so that it ‘impairs discipline by
34 superiors or harmony among co-workers, has a detrimental
35 impact on close working relationships . . . or impedes the
36 performance of the speaker's duties or interferes with the
37 regular operation of the enterprise.’” Melzer, 336 F.3d at
38 197 (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987).
39 The balancing test is “a process that looks at all the
40 circumstances in a given situation and determines which
41 interest weighs more heavily.” Melzer, 336 F.3d at 197.
42

1
Delano does not appeal the district court’s ruling
that defendants were entitled to summary judgment on his
breach of contract claim.
3
 1 Here we have little trouble deciding that it was
2 reasonable for defendants to predict that Delano’s conduct
3 would be disruptive. Delano violated direct orders from
4 superiors and other rules and regulations. He was ordered
5 not to speak to the media or to investigate the Girard case.
6 Yet he continued to conduct an independent investigation
7 outside his regularly assigned duties, and he spoke to the
8 media, supplying departmental photographs and videos to the
9 press in violation of regulations. As a result, defendants
10 were reasonable in concluding that the disruption had or
11 could have had “a detrimental impact on close working
12 relationships,” “imped[ed] the performance” of Delano’s
13 duties, or “interfere[d] with the regular operation of the”
14 police department. See Rankin, 483 U.S. at 388.
15
16 The value in Delano’s speech is admittedly strong. He
17 spoke out about what he believes is an injustice in the
18 investigation of what may have been the murder of a young
19 girl. But the defendant’s interest is stronger. Gipson had
20 his own duty to ensure that he maintained a “significant
21 degree of control over [his] employees’ words and actions;
22 without it, there would be little chance for the efficient
23 provision of public services.” Garcetti, 547 U.S. at 418;
24 see also Sacha v. Sedita, 543 F. App'x 115, 116 (2d Cir.
25 2013) (“Though the public's interest in the subject of
26 [plaintiff’s] speech is significant, it is not significant
27 enough to overcome the systemic disruption to the Erie
28 County District Attorney’s Office that First Amendment
29 protection for speech such as [plaintiff’s] has the
30 potential to cause.”). Accordingly, we affirm the district
31 court’s grant of summary judgment.
32
33 For the foregoing reasons, and finding no merit in
34 Delano’s other arguments, we hereby AFFIRM the judgment of
35 the district court.
36
37 FOR THE COURT:
38 CATHERINE O’HAGAN WOLFE, CLERK
39

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