Zehner v. Jordan-Elbridge Board of Education

15-3539-cv
Zehner v. Jordan-Elbridge Bd. of Educ., 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 ASUMMARY ORDER@). A PARTY CITING TO 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 Square, in the
City of New York, on the 18th day of November, two thousand sixteen.

PRESENT:
JOHN M. WALKER, JR.,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.

_____________________________________

DAVID ZEHNER,

Plaintiff-Appellant,

v. 15-3539-cv

JORDAN-ELBRIDGE BOARD OF EDUCATION, JORDAN-ELBRIDGE CENTRAL SCHOOL DISTRICT,
MARY ALLEY, DIANA FOOTE, JEANNE PIEKLIK, CONNIE DRAKE, PENNY FEENEY, LAWRENCE
ZACHER, DANNY LOUIS MEVEC, JAMES FROIO,

Defendants-Appellees,

WILLIAM SPECK,

Defendant.
_____________________________________

For Appellant: STEPHEN CIOTOLI, Esq., O'Hara, O'Connell
& Ciotoli, Fayetteville, NY.
For Appellees: CHARLES C. SPAGNOLI, The Law Firm of
Frank W. Miller, East Syracuse, NY (for
Jordan-Elbridge Board of Education,
Jordan-Elbridge Central School District,
Mary Alley, Diana Foote, Jeanne Pieklik,
Connie Drake, Penny Feeney, James Froio),
Thomas J. Mortati, Esq., Burke, Scolamiero,
Mortati & Hurd, LLP, Albany, NY (for
Lawrence Zacher), Danny Louis Mevec,
Esq., (pro se), Mevec Law Firm, PLLC,
Syracuse, NY.

Appeal from a judgment of the United States District Court for the Northern District of

New York (Mordue, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED IN PART AND VACATED

IN PART and the case is REMANDED for further proceedings consistent with this decision.

Plaintiff-Appellant David Zehner appeals from an order of the United States District

Court for the Northern District of New York (Mordue, J.), granting summary judgment in favor

of Defendants-Appellees. Zehner filed this 42 U.S.C. § 1983 action alleging, among other

things, that the Jordan-Elbridge Board of Education and certain members of the Board and

school officials (collectively the “Board”) subjected him to adverse employment action in

retaliation for his exercising his First Amendment rights to free speech and association. The

district court concluded that summary judgment was proper because (1) Zehner had failed to

demonstrate a sufficient causal connection between the alleged adverse employment actions and

his First Amendment protected conduct; (2) the Board had established that it would have taken

the same adverse actions against Zehner even in the absence of his protected conduct; and (3)

Zehner had not demonstrated he had engaged in any protected associational activities. On

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appeal, Zehner claims that genuine issues of disputed material fact exist to preclude summary

judgment. For the following reasons we AFFIRM IN PART AND VACATE IN PART the

judgment of the district court and REMAND for further proceedings consistent with this order.

This Court reviews grants of summary judgment de novo. McBride v. BIC Consumer

Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009). We will affirm a grant of summary judgment

“only where, construing all the evidence in the light most favorable to the non-movant and

drawing all reasonable inferences in that party's favor, ‘there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a matter of law.’” Id. (omission in

original) (quoting Fed. R. Civ. P. 56(c)).

A. Collateral Estoppel

At the outset, we address whether collateral estoppel applies to give preclusive effect to

the hearing officer’s findings concerning the validity of the Board’s adverse employment actions.

The general rule of issue preclusion provides that “[w]hen an issue of fact or law is actually

litigated and determined by a valid and final judgment, and the determination is essential to the

judgment, the determination is conclusive in a subsequent action between the parties, whether on

the same or a different claim.” Restatement (Second) of Judgments § 27, at 250 (1980). It is a

well-known exception to the general rule that parties will not be precluded from relitigating an

issue already decided where “the burden [of persuasion] has shifted to his adversary.” Id. § 28;

see also 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4422, at 592

(2002) (“Failure of one party to carry the burden of persuasion on an issue should not establish

the issue in favor of an adversary who otherwise would have the burden of persuasion on that

issue in later litigation.”); Cobb v. Pozzi, 363 F.3d 89, 113 (2d Cir. 2003) (“a shift or change in

the burden of proof can render the issues in two different proceedings non-identical, and thereby

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make collateral estoppel inappropriate.”). For substantially the same reasons as articulated by

the district court, therefore, we AFFIRM this portion of its decision.

B. First Amendment Retaliation Claims

To establish a prima facie case for retaliation based on the First Amendment, a plaintiff

must show the following: “(1) his speech addressed a matter of public concern, (2) he suffered an

adverse employment action, and (3) a causal connection existed between the speech and the

adverse employment action, so that it can be said that his speech was a motivating factor in the

determination.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003) (internal quotation

marks and citations omitted). A defendant may nonetheless escape liability if it can demonstrate

that (1) “it would have taken the same adverse action in the absence of the protected speech,” or

(2) “show that plaintiff’s speech was likely to disrupt [defendant’s] activities, and the likely

disruption was sufficient to outweigh the First Amendment value of plaintiff’s speech.” Id. at

382–83 (internal quotation marks and citations omitted). “Summary judgment is precluded

where questions regarding an employer's motive predominate in the inquiry regarding how

important a role the protected speech played in the adverse employment decision.” Morris v.

Lindau, 196 F.3d 102, 110 (2d Cir. 1999), abrogated on other grounds by Lore v. City of

Syracuse, 670 F.3d 127 (2d Cir. 2012).

Zehner first contends that the district court improperly concluded that he failed to make

out a prima facie case for retaliation because he could not demonstrate causation. To establish

the requisite element of causation, Zehner must show a connection “sufficient to warrant the

inference that the protected speech was a substantial motivating factor in the adverse

employment action.” Cotarelo v. Vill. of Sleepy Hollow Police Dep't, 460 F.3d 247, 251 (2d Cir.

2006) (internal quotation marks omitted). Causation can be demonstrated “indirectly by showing

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that the protected activity was followed by adverse treatment in employment, or directly by

evidence of retaliatory animus.” Cobb, 363 F.3d at 108 (internal quotation marks and citations

omitted); see also Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001) (causation “can be

established indirectly by showing that the protected activity was closely followed in time by the

adverse action” (internal quotation marks and citations omitted)).

Here, Zehner has offered sufficient evidence to create a genuine issue of material fact on

the issue of causation thus precluding summary judgment. Not even a month after instituting an

Article 78 proceeding, in which Zehner alleged the Board violated New York’s Open Meetings

law—an allegation ultimately decided against the Board—Zehner was suspended and faced

disciplinary charges. Furthermore, the record reveals numerous other examples of the Board

taking adverse actions against Zehner shortly after he engaged in protected speech. Because a

reasonable jury could infer that Zehner was retaliated against as a result of commencing the

Article 78 proceeding and engaging in other activities protected by the First Amendment,

summary judgment on the element of causation is inappropriate.

Zehner next argues that the district court incorrectly determined that the Board would

have taken the same adverse actions against him notwithstanding any protected conduct he

engaged in. Specifically, Zehner asserts that the counseling memos issued against him by the

Board as well as affidavits of various Board members do not indisputably demonstrate this fact.

We agree. Under Mt. Healthy, the Board may avoid liability if it can establish “by a

preponderance of the evidence that it would have reached the same decision . . . even in the

absence of the protected conduct.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S

274, 287 (1977); accord Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984) (“Mt. Healthy teaches

that state action taken on the basis of both valid and invalid motivations is not constitutionally

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tainted by the invalid motive if the action would in any event have been taken on the

constitutionally valid basis.”). Thus, it is insufficient to show that the Board might have or could

have suspended or disciplined Zehner on some legitimate grounds. Cf. Smith v. Cnty. of Suffolk,

776 F.3d 114, 123 (2d Cir. 2015) (“defendants asserting a Mount Healthy defense may not rely

solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a

reasonable link between that misconduct and their specific adverse actions.”). “A general

statement that the employer would have taken some adverse action will not suffice.” Id.

Here, taking the evidence in the light most favorable to Zehner and viewing all

reasonable inferences in his favor, reasonable jurors could differ as to whether the Board would

have suspended and disciplined Zehner in the absence of his protected First Amendment

conduct. The evidence relied on by the Board—principally counseling memos and affidavits—

merely show that the Board was concerned over rather minor and trivial issues involving

Zehner.1 Zehner was counseled concerning, inter alia, missing camera equipment; poor written

communication skills; failing to submit annual goals in the proper format; poor performance in

staff evaluations; improperly handling disciplinary issues; and failing to follow school district

procedures for various issues.

While it is true that the memos demonstrate the Board’s frustration with Zehner’s poor

performance in some areas and his mishandling of certain issues, only two memos, dated January

21, 2010 and March 23, 2010, mention possible further investigation and disciplinary action

based on inappropriate comments to students. Considering that the Board did not bring

1
The Board attempts to rely on affidavits of Board members to support its defense that it would have taken the same
actions regardless of Zehner’s protected conduct. Evaluating the credibility of such testimony, however, is an
inappropriate consideration for a court on summary judgment. See Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.
1997) (“Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence
are matters for the jury, not for the court on a motion for summary judgment.”).

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complaints against Zehner until approximately seven months after the issuance of these two

memos and after Zehner had prevailed on his first Article 78 action, and viewing the evidence in

the light most favorable to Zehner, it is difficult to find a reasonable, non-retaliatory connection

between Zehner’s alleged misconduct and the actions the Board took against him. On the

present record, viewed as we must view it, it cannot be said that the Board has established by a

preponderance of the evidence that it would have suspended Zehner and filed disciplinary

charges against him even in the absence of his protected First Amendment conduct. See, e.g.,

Smith, 776 F.3d at 123 (holding that although defendants had pointed to plaintiff’s extensive

unprotected conduct that violated Department policies, they had failed to show affirmatively that

such conduct alone would have resulted in the same adverse employment actions because

defendants’ theory for their actions was entirely speculative). It is inappropriate, therefore, to

grant defendants summary judgment on these grounds. Instead, it should be left to a jury to

determine whether the Board’s justifications for its actions were merely pretext for retaliation in

response to Zehner’s protected conduct. See id. (precluding summary judgment on Mt. Healthy

defense where record permits only inferences that employer would have taken the same action).

Zehner also challenges the district court’s conclusion that the Board had a reasonable

basis to ban him from future Board meetings because of the potential disruptiveness of his

speech. Notwithstanding whether Zehner had demonstrated a pattern of insubordinate behavior

at past Board meetings, his behavior (e.g., speaking over his allotted time and raising his voice to

Board members’) was not so disruptive that it sufficiently outweighed protecting his First

Amendment speech. Cf. Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998) (holding

“government can prevail if it can show that it reasonably believed that the speech would

potentially interfere with or disrupt the government's activities” in a manner outweighing

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employee's interests). During past Board meetings, Zehner raised issues of significant concern in

the school district community by criticizing the Board’s actions taken against him and other

administrators and challenging the manner in which the Board handled certain school district

matters. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 571–72 (1968) (concluding dismissal

of a high school teacher for openly criticizing board of education on allocation of school funds—

“a matter of legitimate public concern”—was impermissible under the First Amendment). The

Board has not shown how any resulting disruption might outweigh the importance of Zehner’s

speech. It has, consequently, failed to carry its burden in this regard at this stage of the

proceedings, and summary judgment on this basis is not warranted.

Zehner also appeals the district court’s decision granting summary judgment in favor of

the Board on his second retaliation claim based on the exercise of his right to free association.

The district court ruled that summary judgment was proper because Zehner had failed to

demonstrate that he had engaged in any protected associational activities and that the Board

would have taken the same actions in the absence of any protected association. We note at the

outset that a First Amendment retaliation claim may be based on a “perceived” association,

rather than actual protected association. See Hefernan v. City of Paterson, 136 S. Ct. 1412,

1417–18 (2016) (holding that the fact that supervisor’s employee was perceived to be involved in

mayoral campaign did not bar employee’s claim for First Amendment retaliation). Reasonable

jurors, moreover, could differ as to whether the Board would have suspended Zehner and filed

disciplinary charges against him absent his alleged protected association. See supra. Because

such facts need to be determined by the jury, entering summary judgment on this cause of action

in favor of defendants was improper.

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 C. New York Education Law § 3028-d Retaliation Claim

Finally, Zehner asserts the district court erred in dismissing his retaliation claim under

New York Education Law § 3028-d. Section 3028-d provides that an employee of a school

district shall not be subject to any retaliatory action for making a report, based on a reasonable

belief, that a school board has engaged in financial practices that “violate any local, state, federal

law or rule and regulation.” N.Y. Educ. Law § 3028-d (Mckinney 2006). The district court

dismissed Zehner’s claim because it found that he had failed specifically to cite to any law

violated by the Board. We conclude, however, that citation to a specific law violated by the

Board is not required under § 3028-d; rather, the “whistleblower” statute merely requires a

reasonable belief that the school board has engaged in illegal financial practices. See, e.g.,

Batyreva v. New York City Dept. of Educ., No. 101313/07, 2008 WL 1932224, at *7 (N.Y. Sup.

Ct. 2008) (“[Section 3028-d] protects employees who report fiscal practices or actions which the

employee has reasonable cause to suspect violate any local, state, or federal law or rule and

regulation relating to the financial practices of the school or school district.” (emphasis added)),

rev’d on other grounds, 57 A.D.3d 322 (N.Y. App. Div. 2008). It was error to dismiss Zehner’s

§ 3028-d retaliation claim at this stage of the proceedings.

For the foregoing reasons, the judgment of the district court is AFFIRMED IN PART

AND VACATED IN PART and the matter is REMANDED for further proceedings consistent

with this decision.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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