Garcia v. Hartford Police Department , 706 F.3d 120 ( 2013 )

11-4618
Garcia v. Hartford Police Dep’t
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2012
(Argued: January 9, 2013 Decided: January 28, 2013)
Docket No. 11-4618
________________________________________________________
EDWIN GARCIA,
Plaintiff-Appellant,
—v.—
HARTFORD POLICE DEPARTMENT, JOSEPH CROUGHWELL,
ROBERT CASATI, HPD, DEP. CHIEF, TIMOTHY HOGAN,
TIMOTHY PALMER, JAMES BLANCHETTE,
Defendants-Appellees.
________________________________________________________
Before: KEARSE, KATZMANN, and LOHIER, Circuit Judges.
Plaintiff-Appellant Edwin Garcia appeals from the judgment of the United States District Court
for the District of Connecticut (Thompson, C.J.), granting summary judgment to Defendants-
Appellees on plaintiff’s employment discrimination and First Amendment retaliation claims,
which arise out of Garcia’s employment as a sergeant with the Hartford Police Department. The
district court concluded that Garcia had failed to introduce evidence suggesting that the reasons
given for defendants’ decision not to promote Garcia to lieutenant or for the internal
investigations into Garcia’s conduct were pretextual. The district court further concluded that
when Garcia spoke to the press to respond to Chief Croughwell’s comment that Garcia’s claims
of discrimination against Hispanics by Hartford police officers were overstated he was not
speaking on a matter of public concern, and thus did not fall within the ambit of First
Amendment protection from retaliation. With respect to Garcia’s discrimination claims, we hold
that he has failed to introduce factual evidence that the defendants’ nondiscriminatory reasons
for investigating Garcia and declining to promote him were pretextual or that Garcia’s race or
national origin was a motivating factor in their decisions. With respect to Garcia’s First
Amendment retaliation claim, we hold that the district court erred in concluding that Garcia’s
statements to the press were not on matters of public concern. Nevertheless, we agree with the
district court that defendant Croughwell is protected from suit on the basis of qualified
immunity. Accordingly, the judgment of the district court is AFFIRMED.
_______________
Counsel for Plaintiff-Appellant: JURI E. TAALMAN (Timothy Brignole, on the brief),
Brignole, Bush & Lewis, LLC, Hartford, CT.
Counsel for Defendants-Appellees: HELEN APOSTOLIDIS, Storrs, CT.
_______________
PER CURIAM:
In a matter involving employment discrimination and First Amendment retaliation
claims, Plaintiff-Appellant Edwin Garcia appeals from a September 27, 2011 final judgment of
the United States District Court for the District of Connecticut (Thompson, C.J.), granting
summary judgment to the Defendants-Appellees. Garcia, a former sergeant with the City of
Hartford Police Department (“Hartford PD”), seeks monetary damages under 42 U.S.C. §§ 1981,
1983, and the parallel Connecticut state employment law provisions, claiming that
defendants-appellees wrongfully failed to promote him to lieutenant and instigated several
internal affairs investigations into Garcia's conduct on the basis of his race or national origin.
Garcia also brings a First Amendment retaliation claim against defendant-appellee Joseph
Croughwell, Chief of the Hartford Police Department, claiming that Chief Croughwell retaliated
against Garcia because Garcia spoke to the press about an incident Garcia alleges involved
excessive force by Hartford police officers against a Hispanic citizen. On appeal, Garcia
contends that the district court erred in granting summary judgment to defendants-appellees on
his discrimination claims because the district court failed to take into account the report of Dr.
Leonard Territo, plaintiff's expert on police practices and procedures; failed to consider the
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evidence in the light most favorable to the plaintiff; and failed to apply the burden-shifting
analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). Garcia also argues that the district court erred in granting summary judgment to
defendant-appellee Chief Croughwell on plaintiff's First Amendment retaliation claim because
the district court incorrectly concluded that, as a matter of law, plaintiff's press conference was
intended to defend his reputation only, and thus did not implicate a matter of public concern.
Having reviewed the record de novo, we affirm the judgment of the district court. First,
we conclude that Garcia can point to no factual evidence in the record that would allow a jury to
find that the defendants’ proffered nondiscriminatory reasons were pretextual. Second, with
respect to Garcia’s retaliation claim against Chief Croughwell, although we agree with Garcia
that his statement to the press implicated a matter of public concern, we affirm the judgment on
the district court’s alternate ground that Chief Croughwell is protected from liability by qualified
immunity.
I. Background
The following description is largely taken from the district court’s thorough recitation of
the factual record and is undisputed unless otherwise indicated. At the time of the alleged
discrimination in 1994, Edwin Garcia was a police officer for the Hartford PD. In November
1990, Garcia was promoted to sergeant, making him one of the first Hispanic officers to reach
the level of sergeant in the Hartford PD. In 1993, Garcia was also elected to the General
Assembly of the State of Connecticut.
On April 23, 1994, Garcia was present at an incident at the El Coqui Café in Hartford,
Connecticut involving Hartford PD police officers and members of the Hispanic community.
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Garcia, who was off-duty that evening, was at a restaurant in Hartford with friends, including
Jose Rodriguez. Cesar Cordero, the owner of the El Coqui Café, arrived at the restaurant and
asked Rodriguez to come to the Café to fix his computer. Garcia accompanied Cordero and
Rodriguez to the Café, and the three of them arrived at the Café at approximately 1:15AM. At
2:27AM, after Hartford’s 2AM mandated closing time, Officer Donald Rodrique observed
activity at the Café. He found that the doors to the Café were locked, but that people remained
inside. Rodrique later stated that he intended to give the owner a warning, close the Café, and
send everyone home.
When Rodrique knocked on the door, Cordero ignored him, and Rodrique called for
backup. Sergeant Richard Kemmett, Officer Ezequiel Laureano, and Officer Feirravanti arrived.
After the officers again knocked on the door to the Café, someone let them inside and told them
that Cordero was in the basement. Laureano proceeded downstairs and found Cordero there with
plaintiff Garcia. Cordero went upstairs with the officers; Garcia stayed downstairs, but was able
to watch and listen to the interactions between Cordero and the officers through the bar’s
surveillance equipment.
Cordero was placed under arrest for allegedly hindering the officers’ investigation by
dimming the lights to the Café. When Kemmett attempted to place Cordero under arrest,
Cordero struggled with Kemmett and ran towards the basement stairs. When Kemmett gave
chase, Kemmett pushed Cordero down the stairs and the two of them became embroiled in a
scuffle. Rodrique attempted to help Kemmett arrest Cordero, while Laureano kept an unknown
individual from interfering. Garcia did not intervene, and instead placed a call to Chief
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Croughwell, Mayor Michael Peters, and Deputy Mayor Eugenio Caro as he watched the arrest
unfold. According to Garcia, Kemmett was “pummeling” and “pounding” Cordero.
After the incident, Garcia met with Croughwell, Peters, and Caro, and explained that he
thought that Kemmett used excessive force against Cordero. When the meeting was over,
plaintiff and Chief Croughwell agreed that no information would be given to the press because
the police department would investigate the incident. Someone, however, leaked the incident to
the press, and the local media began running articles about it. One article reported Chief
Croughwell dismissing Garcia’s complaint as “overstated.” On May 4, 1994, Garcia held a press
conference responding to what he deemed to be Chief Croughwell’s attempt to assail his
reputation. An article published shortly thereafter discussed plaintiff’s press conference and how
he accused fellow officers of bias in targeting a Hispanic bar.
Defendant Blanchette, an investigator with the Internal Affairs Division of the Hartford
PD (“IAD”), investigated the El Coqui incident to determine whether the arrest of Cordero was
lawful, whether Kemmett used excessive force, and whether Garcia acted properly. After the
investigation, Garcia was charged with two violations: (1) undermining the good order,
efficiency and discipline of the department; and (2) failure to take appropriate action concerning
illegal activity, which was communicated to him by letter sent by Chief Croughwell on May 27,
1994.
Approximately six months later, Garcia was involved in another incident that ultimately
led to disciplinary charges. On November 13, 1994, Karla Krengel, an editor with WFSB
Television, visited the Hartford PD station house. When she entered the building, she saw
Garcia and engaged him in conversation. Garcia asked Krengel about people who worked at the
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television station, and the topic of Brian Garnett, a reporter at WFSB, came up in their
conversation. Garcia said that he did not like Garnett because of a story Garnett wrote about
Garcia before his election. Garcia allegedly told Krengel that “you can tell Brian that if I ever
see him somewhere I’m gonna beat the - - - - out of him.” Krengel was shocked and told Garnett
about the conversation. Garnett filed a complaint against Garcia with IAD on December 23,
1994. The complaint reported the comments Garcia made to Krengel, and also stated that a
WFSB anchorman, Dennis House, told Garnett that Garcia had made a similar statement to
House when he saw Garcia in the apartment building where they both lived.
One month prior to this incident, in October 1994, the Hartford PD posted a notice to all
sergeants that they had the opportunity to sit for an examination to be promoted to lieutenant.
The department indicated that there were eleven positions available. Garcia took the test, and,
on December 29, 1994, he was told that he had ranked third out of the forty-six sergeants who
took the examination. Garcia’s name was included on a list of thirteen people for Chief
Croughwell to interview and consider for the eleven available lieutenant positions.
Chief Croughwell interviewed all the candidates, including Garcia, on December 30,
1994. Chief Croughwell did not promote Garcia, and informed him of his decision by letter
dated January 6, 1995. Chief Croughwell’s letter did not give Garcia a reason for denying him
the promotion. Chief Croughwell promoted candidates ranked 1–2 and 4–12 and did not
promote Garcia (who ranked 3rd) and the 13th ranked candidate. Ten out of the eleven
candidates promoted were white.
On April 6, 1995, after a hearing for which Garcia was represented by counsel, the
hearing officer Garcia selected found him guilty of violating the Hartford PD Code of Conduct
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and recommended that Garcia be demoted from Sergeant to Police Officer. Specifically, the
hearing officer concluded that by not intervening in the arrest of Cordero, either to assist the
officers or to stop any police brutality, and thereby failing to take appropriate action concerning
illegal activity, Garcia violated Article V, Section 22 of the Hartford PD Code of Conduct.
Further, by making statements to the press that “discredit[ed]” the Hartford PD and its officers in
violation of the Hartford PD media policy, the hearing officer concluded that Garcia violated
Article 1, Section 1.00 of the Code of Conduct by undermining the good order, efficiency, and
discipline of the police department.
On April 10, 1995, Chief Croughwell notified the plaintiff that he concurred with the
hearing officer’s findings, but not the recommended penalty, and instead suspended Garcia for
thirty working days. The Union filed a grievance challenging the suspension, and the penalty
was upheld for just cause by an arbitration panel from the Connecticut State Board of Mediation
and Arbitration. The Union then filed a motion with the Connecticut State Superior Court to
vacate the arbitration award on the grounds, inter alia, that it offended public policy by violating
the First Amendment. The Superior Court denied this motion. On April 24, 1995, Garcia was
additionally charged with “conduct unbecoming of an employee” and “using unnecessary,
violent, abusive or profane language to citizens while on duty” in connection with the comments
he made to Krengel about Garnett on November 13, 1994.
In May 1995, while Garcia was suspended, the department held a second round of
lieutenant promotions, choosing from officers who had already taken the lieutenant’s exam.
Chief Croughwell neither interviewed Garcia nor notified Garcia that he was being considered
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for promotion. On May 18, 1995, Chief Croughwell notified Garcia that he had not been
promoted to lieutenant.
After another formal hearing, on November 28, 1995, Garcia was found guilty of the
violations arising out of the November 13 incident. On December 18, 1995, Chief Croughwell
followed the recommendation of the hearing officer and gave Garcia a written reprimand and
suspended him for forty-five days. The Union filed a grievance challenging the suspension; the
arbitration panel upheld the suspension for just cause. The Union then filed a motion with the
Connecticut State Superior Court to vacate the arbitration award; again, the Connecticut Superior
Court denied the motion. Garcia ultimately resigned from his position with the police
department effective January 3, 1997, after he entered nolo contendere pleas in state-court
prosecutions, for several counts of election law violations and witness tampering.
Garcia originally commenced the instant action on February 14, 1995. He amended his
complaint on May 21, 1996, suing the Police Department, Chief Croughwell, Robert Casati,
Timothy Hogan, Timothy Palmer, and James Blanchette. The defendants-appellees answered
the amended complaint on September 29, 2010, and moved for summary judgment on October 5,
2010.
The district court granted defendants-appellees’ motion for summary judgment in its
entirety, by order dated September 26, 2011. With respect to plaintiff’s discrimination claims,
the district court concluded that “there is no genuine issue of material fact as to whether the
plaintiff was discriminated against because of his race,” as “[t]he record demonstrates that
nondiscriminatory reasons existed for refusing to promote the plaintiff.” Specifically, the district
court noted that, at the time of the December 1994 promotions, (1) the plaintiff was awaiting a
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hearing on the charges arising out of the April 23 incident, (2) the deputy chiefs had
recommended Garcia not be promoted, and (3) it would have been embarrassing to the
department if Garcia were promoted in the face of charges that could later be sustained. By the
time of the May 1995 promotions, Chief Croughwell averred that nothing had changed, other
than the fact that Garcia had been suspended, which the department argued rendered him
ineligible for promotion. With respect to the IAD investigations, the district court concluded that
there existed no evidence suggesting the investigations into Garcia’s conduct were instigated
because of his race or national origin.
The district court also concluded there were no genuine disputes of material fact that
could sustain Garcia’s First Amendment retaliation claim. The court determined that because
Garcia spoke to the press only after Chief Croughwell had told the media Garcia had
“overstated” his complaint, and because Garcia stated he was attempting to “defend” himself,
“[t]he record demonstrates that the speech was to redress a personal grievance and was never a
matter of public concern,” thus falling outside the First Amendment protection against retaliation
accorded to Garcia as a public employee. In the alternative, the district court also concluded that
qualified immunity would protect Chief Croughwell from liability for the retaliation claim.
Additionally, the district court granted defendants’ motion for summary judgment on
Garcia’s Monell claim against the City of Hartford and the Hartford PD; his claims of
discrimination pursuant to the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. §
46a-60; and his claim of intentional infliction of emotional distress. Garcia appeals, contending
that the district court erred in dismissing his employment discrimination claims and his First
Amendment retaliation claim.
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II. Discussion
“We review a district court’s grant of summary judgment de novo.” Lombard v.
Booz-Allen & Hamilton, Inc., 280 F.3d 209, 214 (2d Cir. 2002). In reviewing a summary
judgment decision, we apply “the same standards applied by the district court.” Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 566 (2d Cir. 2011). Under this standard,
“[s]ummary judgment may be granted only if ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
In determining whether there is a genuine dispute as to a material fact, we must resolve all
ambiguities and draw all inferences against the moving party. See Donnelly v. Greenburgh Cent.
Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012).
For a claim of employment discrimination under 42 U.S.C. §§ 1981 and 1983, we apply
the familiar burden-shifting framework set forth by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973). Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107, 123 (2d Cir. 2004).
[A] plaintiff must first establish a prima facie case of discrimination. The burden then
shifts to the employer to articulate a legitimate, nondiscriminatory reason for its
employment action. If the employer meets this burden, the presumption of intentional
discrimination disappears, but the plaintiff can still prove disparate treatment by, for
instance, offering evidence demonstrating that the employer’s explanation is pretextual.
Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003) (citation omitted). When the defendant
offers a legitimate, nondiscriminatory reason for the adverse employment action, the burden is
on the plaintiff to point to evidence that reasonably supports a finding of prohibited
discrimination; otherwise, the defendant is entitled to summary judgment. Farias v.
Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). “Of course, to defeat summary judgment
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. . . the plaintiff is not required to show that the employer’s proffered reasons were false or
played no role in the employment decision, but only that they were not the only reasons and that
the prohibited factor was at least one of the motivating factors.” Back, 365 F.3d at 123 (internal
quotation marks and brackets omitted).
Garcia contends that defendants discriminated against him on account of his race or
national origin in two ways: (1) by refusing to promote him to lieutenant; and (2) by conducting
frivolous and retaliatory investigations into his conduct. We are not persuaded on either ground.
We begin with Chief Croughwell’s decisions not to promote Garcia. Defendants’ proffered
nondiscriminatory reason for these actions is that because Garcia was awaiting a hearing on the
charges arising out of the April 23 incident at the El Coqui Café at the time of the first round of
lieutenant promotions in December 1994, and because Chief Croughwell concluded that it would
have been embarrassing to the department if Garcia was promoted in the face of charges that
could later be (and were) sustained, Chief Croughwell decided that it was unwise to promote
Garcia at that time. Later, by the time of the May 1995 promotions, Garcia had been suspended
due to the El Coqui incident, which, according to the defendants, rendered him ineligible for
promotion.
Plaintiff points to the expert report of Dr. Leonard Territo, which he argues creates a
genuine dispute as to whether the defendants’ proffered reasons were pretextual, and which he
asserts that the district court wrongly overlooked. Dr. Territo, a professor of criminology and
former police officer, offered his opinions on both Garcia’s conduct and the conduct and
procedures of the defendants. A submission in opposition to (or in support of) summary
judgment need be considered only to the extent that it would have been admissible at trial. See,
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e.g., Fed. R. Civ. P. 56(e); see also Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d
736, 746 (2d Cir. 1998) (we review summary-judgment-related evidence rulings for “manifest
error”). We are skeptical of the admissibility of many of Territo’s conclusions, which frequently
appear to be speculative or conclusory, and would therefore be inappropriate for consideration on
summary judgment. See Major League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290,
311 (2d Cir. 2008). Given that Garcia placed such heavy reliance on Territo’s report in opposing
summary judgment, however, it would have been better for the district court to state its reasons
for concluding that this report did not impede summary judgment. Nevertheless, having
reviewed Dr. Territo’s report, we conclude that the report does not add any facts to the record
that create a genuine dispute as to any material fact. See Raskin v. Wyatt Co., 125 F.3d 55, 66
(2d Cir. 1997) (“[A]n expert’s report is not a talisman against summary judgment.”); Knight v.
City of New York, 303 F. Supp. 2d 485, 498 (S.D.N.Y. 2004) (holding that because a “report is
based largely on the expert’s interpretation of the factual record . . . even if admitted into
evidence, [it] would not alter the factual record sufficiently to enable a reasonable juror to find
[retaliation]”).
Garcia argues that the district court erred in crediting Chief Croughwell’s testimony that
he could not promote Garcia in 1995 because Garcia was suspended at the time, which was
corroborated by the affidavit of Joyce Chin, the former Principal Personnel Analyst for the City
of Hartford Personnel Department. Territo’s report states that, to the contrary, “in a similarly
situated case, Chief Croughwell promoted Sgt. Cherniak to the rank of lieutenant even as he was
suspended and under investigation for forging Court documents.” However, Garcia’s argument
suffers from a serious flaw: Territo disavowed this recitation of the facts at his deposition.
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Garcia does not acknowledge in his briefing that Territo retracted the conclusion upon which he
so heavily relies, coming dangerously close to misrepresenting the record to this panel. Neither
Territo’s opinion nor any other evidence in the record suggests that Chief Croughwell’s reasons
for not promoting Garcia were false or that Chief Croughwell based his decision in part on
Garcia’s race or national origin.1 To the contrary, as the district court pointed out, one of the
sergeants promoted to lieutenant over Garcia was also Hispanic.
We next turn to the investigations conducted by the IAD into Garcia’s conduct. Here,
defendants submitted evidence showing that the IAD investigations were prompted by
allegations of misconduct against Garcia. Out of these complaints, Garcia was charged in
connection with two incidents: the El Coqui incident and the incident where he made threats
regarding Brian Garnett to Garnett’s colleague, Karla Krengel. Both charges against Garcia
were ultimately substantiated. They were fully litigated as to their merits through disciplinary
hearings, appeals to arbitration panels, and appeals to the Connecticut Superior Court.
Territo’s conclusions about the propriety of the IAD investigations into Garcia’s conduct,
to the extent those conclusions are admissible or reducible to admissible evidence, do not alter
the factual record in any meaningful respect. His analysis of the investigation into the El Coqui
incident was based primarily on conclusory and speculative assertions in Garcia’s affidavit,
assertions that the district court correctly rejected as insufficient to create a genuine dispute as to
any material fact given the contrary evidence in the record. See Wyler v. United States, 725 F.2d
1At oral argument, plaintiff’s counsel suggested that Garcia’s 30-day suspension, which
began April 17, 1995, had terminated the day before Chief Croughwell notified Garcia that he
was not being promoted on May 18, 1995. The 30-day suspension, however, was for 30 working
days, not calendar days and, as Garcia was notified, was to “continue to and through May 29,
1995.”
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156, 160 (2d Cir. 1983). For example, Garcia stated in his affidavit and deposition that
defendant Blanchette was motivated by his “color or national origin” when he attempted to have
Garcia prosecuted for incidents where the investigations returned no proof. But, as the district
court noted, there was no evidence to support the contention that Blanchette attempted to
prosecute Garcia because of his race or national origin. To the contrary, the evidence shows
simply that Blanchette investigated complaints against Garcia that were referred to him. Indeed,
the record reflects that on at least one occasion, Blanchette found the allegation against Garcia to
be without substantive merit and recommended that the matter be closed.
Additionally, some of Territo’s conclusions are directly contradicted by the record. For
example, in arguing that Garcia was unfairly punished for not intervening in the El Coqui
incident, Garcia contends that the district court ignored that Officer Laureano was also present
and, according to Territo, “did not feel the need to intervene and assist.” J. App’x 483. This is
an incorrect characterization of Laureano’s description of the incident. Laureano testified at
Garcia’s disciplinary hearing that he did not assist in the arrest because he was busy preventing
an unknown male from interfering, and that “it would have been helpful if there were more
officers present because Lieutenant Kemmett was having difficulty [effectuating the arrest].” J.
App’x 356.2
Similarly, although Territo concludes that the evidence shows there was no investigation
into Kemmett’s use of excessive force (without citation to the record), the record reflects that
defendant Blanchette investigated the El Coqui incident in full, including whether Kemmett used
excessive force. These are not genuine disputes. Territo’s report adds no facts to the record that
suggest the defendants’ proffered reasons for investigating Garcia were false.
2
We note that Laureano’s version of the events was disputed by Garcia.
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Even accepting arguendo that all of Garcia’s and Territo’s conclusory assertions were
credited, Garcia still fails to point to evidence suggesting that discriminatory animus was a
motivating factor behind the investigations. Indeed, Territo himself speculated that someone in
the IAD was out to “get” Garcia because he broke the police code of silence by speaking to the
press, not because of his race or national origin. This does not show “that discrimination was the
real reason” for the investigations, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993), nor
does it even show that discriminatory animus was at least one of the “motivating factors” behind
defendants’ actions, Back, 365 F.3d at 123 (internal quotation marks omitted). Without any
evidence that could allow a reasonable jury to find that defendants’ proffered explanations for
either the refusal to promote or the IAD investigations were pretextual, Garcia’s discrimination
claims fail.
Turning to Garcia’s First Amendment retaliation claim against Chief Croughwell, we
agree with Garcia that his statements to the press were on a matter of “public concern” and thus
protected by the First Amendment. To prove that a public employer unlawfully retaliated
against an employee for their speech in violation of the First Amendment, the plaintiff must
show that (1) the speech at issue was “made as a citizen on matters of public concern rather than
as an employee on matters of personal interest,” Grillo v. N.Y.C. Transit Auth., 291 F. 3d 231,
235 (2d Cir. 2002) (per curiam); (2) he or she suffered an adverse employment action, Diesel v.
Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000); and (3) “the speech was at least a
substantial or motivating factor in the [adverse employment action],” Sheppard v. Beerman, 317
F.3d 351, 355 (2d Cir. 2003) (internal quotation marks omitted). “Whether an employee’s
speech addresses a matter of public concern is a question of law for the court to decide, taking
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into account the content, form, and context of a given statement as revealed by the whole
record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999).
Viewing the facts in the light most favorable to Garcia, the record shows that: (1) Garcia
informed Chief Croughwell, the Mayor, and the Deputy Mayor that he thought Hartford police
officers were discriminating against Hispanics and that Kemmett used excessive force against
Cordero at the El Coqui Café; (2) Garcia and Chief Croughwell agreed that the matter should be
handled internally and not through the media; (3) someone leaked the allegedly discriminatory
incidents to the media; (4) Chief Croughwell subsequently criticized Garcia’s complaints of
discrimination as “overstated”; and (5) Garcia held a press conference to rebut Chief
Croughwell. The district court erred in concluding that because Garcia spoke to the press to
protect his reputation, his speech was not protected by the First Amendment. Whether or not
Garcia held the press conference solely out of a desire to protect his reputation, he spoke about a
matter of public concern, namely, whether the police department was discriminating against
Hispanics. See Connick v. Myers, 461 U.S. 138, 148 n.8 (1983) (noting that the “right to protest
racial discrimination [is] a matter inherently of public concern”).
Defendants attempt to analogize this case to our decision in Ezekwo v. N.Y.C. Health &
Hospitals Corp., 940 F.2d 775 (2d Cir. 1991). This case is far afield from Ezekwo. In Ezekwo,
we held that statements made by a medical resident airing her “personal dissatisfaction” with the
competency of her residency program director were not brought under the ambit of the First
Amendment by “the mere fact that one or two of [her] comments could be construed broadly to
implicate matters of public concern.” Id. at 777, 781. Here, by contrast, the core of Garcia’s
dissatisfaction was with the Department’s handling of allegations of discrimination against
Hispanics.
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To hold that these statements were not a matter of public concern would unreasonably
allow public employers to innoculate themselves from First Amendment retaliation claims
simply by arguing that the employee spoke about an issue of public concern for “personal”
reasons. As a matter of law, Garcia’s speech “relat[es] to [a] matter of political, social, or other
concern to the community.” Connick, 461 U.S. at 146.
Nevertheless, we affirm the judgment of the district court on the district court’s
alternative ground of qualified immunity. See Leecan v. Lopes, 893 F.2d 1434, 1439 (2d Cir.
1990) (holding we are “free to affirm an appealed decision on any ground which finds support in
the record, regardless of the ground upon which the trial court relied”). We first note that Garcia
did not raise the issue of qualified immunity in his opening brief and has thus forfeited any
objection to the district court’s alternative ground. See JP Morgan Chase Bank v. Altos Hornos
de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made in an
appellant’s opening brief are waived even if the appellant pursued those arguments in the district
court or raised them in a reply brief.”). “Of course, we have discretion to excuse such an error if
manifest injustice would otherwise result.” Id.Here, there is no manifest injustice that would result in affirming the judgment. Garcia
argues that the record demonstrates that both Chief Croughwell’s decision not to promote him
and the IAD investigations were retaliation for Garcia’s decision to speak to the press, and that
he has therefore shown malice or reckless indifference to his federally protected rights sufficient
to overcome qualified immunity. See Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999).
We disagree, for substantially the same reasons discussed in our evaluation of Garcia’s
discrimination claims. The record is devoid of any factual evidence suggesting that either Chief
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Croughwell’s decision not to promote Garcia or the IAD investigations was retaliatory in nature.
To the contrary, defendants’ unrebutted evidence shows legitimate justifications for both.3
Accordingly, there is no need for us to entertain the forfeited argument in the interests of justice.
III. Conclusion
Accordingly, for the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
3
The hearing officer who conducted Garcia’s disciplinary hearing for the El Coqui
incident found that “Garcia’s statements to the press were totally inappropriate and violated the
media policy of the Hartford Police Department.” Chief Croughwell concurred with the findings
and imposed a 30-day suspension. This suspension (which was fully litigated as to just cause in
the Connecticut state courts) fails to show that Garcia’s comments to the press were a motivating
factor in Chief Croughwell’s decision not to promote Garcia. At the time he made that decision,
Chief Croughwell explicitly told Garcia that he was concerned about his various pending
disciplinary charges and investigations, including the pending charges relating to his failure to
intervene in the El Coqui incident and pending investigations into the threats made against
Garnett and potential violations of Connecticut election law, none of which involved an alleged
exercise of Garcia’s free speech rights. Specifically, Chief Croughwell noted that it would
“embarrass” the Hartford PD if Garcia was promoted and those disciplinary charges were
substantiated. Accordingly, there is nothing that suggests that it was not “objectively
reasonable” for Chief Croughwell to believe that he was acting lawfully by exercising his
discretion not to promote Garcia on these grounds. See Gubitosi v. Kapica, 154 F.3d 30, 33 (2d
Cir. 1998) (reversing denial of qualified immunity on summary judgment for police chief
accused of retaliation in violation of First Amendment where plaintiff failed to identify evidence
in the record suggesting police chief fired her for engaging in protected speech, as opposed to for
her disciplinary violations).
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