Jose Cotarelo v. Village of Sleepy Hollow Police Department, Jimmy Warren, Jr., Phillip Zegarelli, Mario Defelice, Village Trustee, Robert Higle, Richard Ziejack, Patricia Rodriguez, Daniel Stever, James Hart, Dwight Douglas, Village Administrator, All Sued in Their Individual Capacities, Docket No. 04-4627-Cv

Citation: 460 F.3d 247Docket: 247

Court: Court of Appeals for the Second Circuit; August 9, 2006; Federal Appellate Court

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Jose Cotarelo, a police officer with the Sleepy Hollow Police Department since 1986, appeals a summary judgment that dismissed his First Amendment claim of employment retaliation related to his political affiliation and protected speech. The United States Court of Appeals for the Second Circuit affirmed the dismissal, finding that the defendants established that the same adverse employment action would have occurred regardless of Cotarelo's protected activities.

The factual background reveals that after Cotarelo was disciplined for hunting on duty in 1991, he and Detective Frank Corona expressed concerns in a 1998 letter to Police Chief Jimmy Warren, Jr. about discrimination and bigotry against Spanish-speaking officers in the department. Specific incidents cited included derogatory remarks and refusal to assist Spanish-speaking officers. Following this, Cotarelo filed a federal lawsuit in 1999 claiming a hostile work environment, which settled in 2001 without admission of liability.

Post-lawsuit, Cotarelo admitted to intentionally reducing his ticket and summons issuance, negatively affecting his productivity evaluation (BETA score). After passing the Civil Service test for sergeant in 2001, he was interviewed along with other candidates by the Police Committee for promotion, which included members of the Village Board of Trustees who would recommend candidates to the Mayor for board approval.

The Police Chief recommended Officer Hood for promotion to sergeant, ranking him first among candidates Hood and Cotarelo, while not recommending Nevelus. The Police Committee unanimously supported Hood's promotion, which was subsequently approved by Mayor Zegarelli and the Board of Trustees. Cotarelo was not promoted to detective despite others being promoted in 2001 and 2003, as Chief Warren advised him to improve his BETA scores, which had been among the lowest. Cotarelo's scores remained poor, and he misinterpreted a lack of communication from Chief Warren as a personal slight. Additionally, Cotarelo's political affiliations with past opponents of Mayor Zegarelli contributed to the perception that he was less favorable for promotion.

In May 2002, Cotarelo filed a lawsuit alleging that his non-promotion to sergeant was due to discrimination based on his national origin, a letter he sent to Chief Warren, and a prior lawsuit. He amended his complaint in 2003 and 2004 to include claims related to his past lawsuits and political affiliations. The district court granted summary judgment in favor of the defendants on all claims, with Cotarelo appealing specifically the summary judgment on his First Amendment claim. The court's review of the summary judgment is de novo, considering evidence favorably for the non-moving party and determining if any genuine issues of material fact exist.

To defeat a motion for summary judgment on a First Amendment retaliation claim, a plaintiff must demonstrate three elements: 1) the speech in question is protected; 2) the plaintiff experienced an adverse employment action; and 3) a causal link exists between the protected speech and the adverse action. The causal connection must be strong enough to suggest that the protected speech was a significant motivating factor behind the adverse employment action. Even with these elements satisfied, a defendant may still win if it can prove that the adverse action would have occurred regardless of the protected speech.

For speech to qualify as protected under the First Amendment, it must address a matter of public concern. Generally, speech related to political, social, or community issues is protected. Courts have established that discrimination within a government workplace is a matter of public concern, even if specific grievances seem personal. In this case, Cotarelo's complaints about discrimination were deemed protected, despite lower court findings suggesting they were personal grievances.

Additionally, the plaintiff must prove that the adverse employment action was a result of their protected speech. A failure to promote a qualified candidate can qualify as an adverse action. Cotarelo claims he was denied promotions to sergeant and detective due to his protected activities, citing four key pieces of evidence: 1) a prior candidate's lack of rehire linked to issues mentioned by the Mayor; 2) a consultant's findings indicating favoritism towards connected officers; 3) the Mayor's inquiry about interactions with someone suing the Village; and 4) the Chief's reference to Cotarelo's lawsuit during a promotional interview.

The first three events mentioned do not pertain specifically to Cotarelo, with issues regarding Corona being vague and unrelated to the case, and the importance of personal connections being a sentiment rather than a factual basis for political influence. The reference to a lawsuit during appellant's interview was linked to a decline in productivity rather than to Cotarelo himself. Even if Cotarelo's speech were a factor in the denial of his promotion, appellees could still succeed in a summary judgment if they demonstrate that the same employment decision would have occurred regardless of the speech. Cotarelo's record in the Department significantly undermines his promotion candidacy, highlighted by a prior fine for misconduct, low productivity rankings over two years, and a deliberate choice to maintain low productivity. The trustees provided legitimate reasons for promoting Officer Hood over Cotarelo, citing superior rankings, interview performance, and scores. Subsequent promotions of other officers occurred after Cotarelo's productivity worsened and after he limited communication with Chief Warren due to a rumor. 

For the First Amendment claim, adverse employment actions based on political affiliation are prohibited, requiring proof that the conduct was protected and a motivating factor in the adverse action. Although there is an inference that Mayor Zegarelli might favor political supporters, Cotarelo presents limited evidence of politically motivated employment decisions. The record indicates that Chief Warren was supportive of Cotarelo's promotion aspirations and actively sought ways to assist him, with no documented discussion of Cotarelo's political affiliations during the promotion deliberations.

Cotarelo's potential promotion was not influenced by political affiliation, as he exhibited low productivity, a poor disciplinary record, and limited communication with Warren. The defendants established, as a matter of law, that Cotarelo would not have been promoted regardless of these factors, consistent with the precedent set in Vezzetti. The district court's summary judgment in favor of the defendants is affirmed. Notably, Cotarelo admitted in his deposition that after filing a lawsuit in 1999, he intentionally reduced his ticket writing to avoid conflict with fellow officers and believed this would improve his standing among them. He also ceased casual communication with Warren, suspecting Warren favored another candidate for promotion, yet maintained a professional dialogue concerning police matters.