The Honor able Da vid G. Trag er, Senior Judge of the United States District Court for the * Easter n District of Ne w York, sitting by desig nation. 08 -26 46 -cv Anemon e v. M TA UN ITED STA TES C OU RT OF AP P EA LS F OR THE SE CO ND CI RC UI T Aug ust Term 2008 Argued: J une 23, 2009 Dec ided: J anuar y 4, 2011

Docke t No. 08-2646-c v

_____________________________________

L OUI S R. ANEMONE, Plaintif f-Appellant , -v.- METROPOL I TAN TRANSPORTATI ON AUT HORI TY, PETER S. KAL I KOW, KATHERI NE N. L APP, GARY J . DEL L AVERSON, and MATT HEW D. SANSVERI E, Defendants-A

ppellees

.

_____________________________________ Be fore : MI

NER, L I VI

NGSTON, Circuit Judges , and TRAGER, District Judge

. *

Plaintiff-appe llant L ouis Anemone, the f ormer D irec tor of Secur it y and De puty

Ex ecutive Direc tor for the Metropolitan Tra nsportation Authority

(“MTA ”), a lleg es that the MTA a nd the individual Defe ndants in this case (c ollectively , “De fenda nts”), took a se ries of a dverse employ ment

a c tio ns a g a ins t hi m in res po ns e to h is p ro te c te d s pe e c h c on c e rn ingc or ru pti on a t th e MT A, in vio la tio n of

his fr e e sp e e c h r ig hts un de r t he fe de ra l and

Ne w Y or

k St a te c on sti tut ion s. He a lso2

a lle g e s th a t D e fe nd ants ’ c on du c t vi olate d h is d ue pr oc e ss ri ghts un der bo th t he fe de ra l and

state

co n s t i t u t i o n s . Anemone se eks re view of a May 2, 2008, g rant of summar y judgme nt in favor of Def endants e ntere d in the Southern District of New York (L oretta A . Preska, Chief Judge ). B e c a us e

we c onclude ( 1) that a n y re asonable jury would have to f

ind that Anemone would have bee n suspended and then terminated even absent any reta liatory intent on Def endants’ par t en gen d ere d by his alleg edly

protec ted spee ch, such that Def endants a re e ntitled, under Mt. Healthy City School District Board o

f E d u ca t i on v. Doy le, 42 9 U .S. 27 4 ( 19 77 ), to a de fe ns e to a ll A ne mon e ’s F ir st Am e ndme nt c la ims , a

nd (2 ) t hat th e dis tr ic t c ourt

c or re c tly re je c te d th e pr oc e dura l du e pr oc e ss

c la ims , w e a ff

ir m. Affir med.

MA TT HE W D. B RI NC KE RH OF F , E me ry

Ce lli Br incker hoff & Abady

L L P, New Yor

k, New Y ork (O. Andre w F. Wilson and Elora Mukhe rjee , on the brief ), for Plaintif f-Appellant

. L OUI S PEC HMAN, B erke -Weiss & Pec hman L L P, New York, Ne w York, for Defendant-Appe llee Matthew D. Sa ns v e rie

. NEI LH. AB RAMSON, Proskauer Rose L L P, New Yor k, New Y ork (Joshua F. Alloy , on the brief ), for De fe nd an tsAppellee s Metropolitan Trans

portation Author ity, Peter S. Kalikow, K

atherine N. Lapp, and Gary J. De llaverson

. L I VI NGSTON, Circuit Judge : Plaintiff-appe llant L ouis Anemone (“ Anemone” ) wa s, until May 2003, the Dire ctor of Security and a D eputy

Ex ecutive D irec tor of t he Metropolitan Transpor tation Authority

(“MTA ”). He a lleg es that his former employ er a

nd the individual MTA Def endants, Peter

Kalikow, KatherineB e c a us e of the pr oc e dura l po stu

re of the c a se , w e vie w the fa c ts i n th e lig ht m os t 1 favor able to the non- moving pa rty
. Have y v. H omebound M

ortg., Inc. , 547 F.3d 158, 163 ( 2d Cir. 2008). Acc ording ly , the following fac ts, unless otherwise noted, a re undisputed or

draw n fr om A ne mon e ’s te sti mony and , in the e ve nt o f a

dis pu te , a

re c on str ue d in the lig ht m os t favor able to Ane mone. 3 L app, Ga ry Dellave rson, and Matthew Sansverie (collec tively , “De fenda nts”), took a se ries of adver se employ

ment actions ag ainst him, culminating in his termination, as a result of his protected speec h highlig hting the MTA ’s per ceive d failure to addre ss his corruption conc erns. He claims that the y the re by vi ol ate d his f

re e sp e e c h r ig hts un de r t

he fe de ra l and

Ne w Y or

k St a te c on sti tut ion s. Anemone a lso alleg es that De fenda nts’ conduct violated his due proce ss rig hts under both the fe dera l

and state c on sti tut ion s. He a

pp e a ls f ro m a Ma y 2, 20 08 , g ra

nt o f s umm ary

jud g me nt i n D e fe nd a nts ’ favor enter ed in the Southern District of New Y ork (L oretta A . Preska, Chief Judge ). B eca use we conclude (1) that a

ny rea sonable jury

would have to find that Anemone would have been suspende d

and the n te rm inate d e ve n a

bs e nt a ny re ta li ato ry in te nt o n th e De fe nd ants ’ p art e ng e nd e re d b y

his alleg edly protec ted speec h, such that De fenda nts are e ntitled, under Mt. Healthy City School District Board of Education v. Doy le, 429 U.S. 274 (1977), to a de fense to all Anemone’ s First Amendme nt

c la ims , a nd (2 ) that the dis tr ic t court c or re c tly re je c te d the pr oc e dura l due pr oc e ss cl a ims , w e a ff ir m. BACK GR OUND I. F ac tu al B ac kgr ound 1 Anemone w as hired on a

n at-will basis in Dec ember 2001 to serve as t h e fi rst Direc tor of Security and a D eputy Ex ecutive Direc tor of the MTA. I n this role , he had overa ll responsibilit y for the sec urity

of the MTA’ s infrastruc ture an d the safe ty of its transportation sy stem. The Chief of Police of the MTA Police Depa rtment (“MTA PD”) and the secur ity direc tors of the MTA’ s variousAs the district court noted, the connec tion between the se investig ations and Ane mone’s 2 and Casale ’s offic ial positions wit h the MTA is not clea r fr om the rec ord, beyond Anemone’ s descr iption of these inquiries as “ secur ity -bolstering investigative eff orts.” See A nemonev. 4 operating a g encie s repor

ted direc tly

to him. Anemone supervised the day -to-day operations of the MT A PD , c oo rd inate d s e c ur ity op e ratio ns of

va ri ou s g ro up s conne c te d with the MT A, and le d ta sk fo rc e s i na s s e s s i n g t h r e a t s t o t h e M T A ; d e v e l o p i n g m e a n s o f m i t i g a t i n g M T A se c ur ity

vu lne ra bil iti e s; a nd se e kin g g ra

nts fro m th e F e de ra l E me rg e nc y Ma na g e me nt A g e nc y

to a dd re ss

weaknesses in the MTA’s infrastruc ture. Be fore taking this position, A nemone had se rv ed i n the New Y ork Police De partme n t (“NY PD”) for 35 y ear s, becoming the Chief of D epar tment before

re tir ing in 199 9. As Di re c tor of Se c ur ity of the MT A, An e mon e wa s e xpe c te d to and did c oo pe rate with various investig atory ag encie s, including the Manhattan and Quee ns District Attorney s’ offic es

and the MT A’ s Of

fi c e of the I ns pe c tor Ge ne ra l (“ OI G” ). Al tho ug h th e pa rt ie s d isp ute the e xten t to which press relations constituted a part of Anemone’s responsibili ties, Anemone c ontends that he spoke with the pre ss only if direc ted by

Kather ine L app, the MTA’ s Ex ecuti v e Di rec tor, or Peter Kalikow, its Chairman. Sub se qu e nt to An e mon e ’s hir ing , N ic ho la s Ca sa le wa s h ir e d a s D e pu ty Di re c tor of Se c ur ity for the MTA , repor

ting dire ctly

to Anemone. Casa le had pr eviously worke d fo r Anemone in the NYPD and wa s rec ruited by him to joi n the M TA. W hile at the MTA, Casa le and Ane mone tog ether

c re a te d th e Joint I nfr a str

uc tur e Ta sk

F or c e (“ JI TF ” ), a

su bd ivi sio n o f A ne mon e ’s op e ra tio ns , to sp e arh e a d th e MT A’ s e ff

or ts t o s e c ur e its inf

ra str uc tur e fr om t e rr or ist

thr e a ts. Be fore the eve nts at issue here , both Anemone a nd Casale had bee n involved in conducting

corr uption investigations at the MTA. The first such investigation a rose when Anemone disc overe d 2Metro. Transp. Auth. , No. 05 Civ. 3170, 2008 W L1956284, at *2 n.6 (S.D.N.Y. Ma y 2, 2008). 5 that sever al MTA contr actor s were submitt ing “ inflated a nd unrea sonable bills” for the ir work f or the MTA. With C asale , and in consultation with Gar y Dellave rson, t he MTA’s Direc tor of L abor Relations and a f

ellow Deputy

Ex ecutive D irec tor, Anemone beg an investig ati n g t h ese billing pr a c tic e s and dis c ov e re d ev ide nc e of fr a ud on the pa

rt of the c on tr a c tor s Ge lle r Ala rm s a nd I -L ite Electric

. Anemone briefe d his superior, L app, on his finding s and on the potential involvement of at least two MTA e mploy ees. Tog ether , they decide d to r efe r the matter to the Manhattan District Attorney ’s offic e (“Manhattan DA’s office” ), which then opened its own investig ation. Around the same ti me, Anemone also beg an an investigation of another c ontrac tor, Fig liolia Pl umbing, ba sed on a tip from De llaverson. The investigations ult imately re s u l t ed in guilty pleas by the MTA

em p loy ees involved a

nd the pay

ment by I -L ite Electric and F igliolia Plumbing of substantial restit u t i o n t o the MTA. See A nemone v. Me tro. Trans p. Auth. , N o . 0 5 Ci v . 3 1 7 0 , 2 0 0 8 WL 1956284, at *2 (S.D.N.Y. Ma y 2, 2008). Ba sed in part, a lthough c erta inly not exclusi vely , on his conduct duringthese c orruption investigations, Anemone’s de puty , Casale, e ng ender ed a se ries of c omplain ts. These include d a complaint to L app from an Assis tant District Attorney in the Manhattan D A’s off ice that dur ing the I -L ite investigation Casale “wa s undertakinghis own investigation, in direct contravention to what their [office’ s ] investigation was.” L app De p. at 124. L app, who he rself ha d extensive criminal jus tic e e xpe ri e nc e pr ior

to joi nin g the MT A, ind ic a te d th a t th is c omp la int ra ise d “ se ri ou s c on c e rn s” and she “ did not have the [level] of comfort that [Anemone] was supervising [C asale ] as closely as [she] might wa

nt.” Id. at 170. Kalikow ha d also complained dire ctly to Anemone that Casale wa s6

like “a bull in a c hina shop” a nd had requested that Anemone fire him, althoug h Kalikow had been dis su a de d f

ro m th is p os iti on

a t th a t ti me . A ne mon e De p. a t 77–7 8. Th e re ha d a lso be e n c omp la int s from the MTA Police Be nevolent Association and from an Assis tant Gene ral Counsel for the MTA. Finally , Dellave rson asser ted that a number

of people had complaine d to him “that Anemone wa s in essence tolerati n g

th is s e r iously

bullshit , g ross, abusive be havior on Casa le’s par t at virtually

ever y turn.” Dellave rson Dep. at 220. Anemone ha s acknow ledg ed both that he r ece ived complaints from various sourc es and that Casale “was very roug h around the edg es.” Anemone D ep. at 68. He has also admitted that he did not conduc t a ny further inquiry into the complaints but instea d defe nded his de puty , stating to K alikow, for e x ample, that Casale “wa sn’t hired to make friends.” Id. at 77. The instant controve rsy

arose out of sever al conve rsations alleg ed to have taken plac e among Dellave rson, Anemone , and Casale reg ardingthe outg oing pr esident of the L ong I sland Rail Road (“L I RR”), Ken Baue r. Acc ording to Anemone, Dellaver son told Anemone and Casale that Ba uer

was a “bad guy ” and that i t wa s “s u rp ri s ing to him” that they had not come a cross a

ny corr uption involving B auer . Id. at 103, 105. I n one conve rsation, occ urringin l at e 2 0 0 2 or ea rly 2003, Dellave rson mentioned a c ompany called Plasser

Americ an (“ Plasse r ” ) , wh ic h s upplied specia l track maintenanc e ra ilroad ca

rs to the L I RR. At som e point, “bec ause Baue r had [ also] been mentioned,” Anemone understood Dellaverson to be “ leading[Anemone and Casa le] to P lasser,” id. at 114, althoug h he could not re call De llaverson spe cifica lly attributing w

r o n g doing to Plasser

or stating that the re wa s a

ny c on ne c tio n w ithB a

ue r. De llave rs on

ne ve r a sk e d f

or the inf or ma tio n h e pr ov ide d to be kept c o n f

id e n ti a l, a lt

h o u g h A n e mo n e a s s e rts th a t h e an d Ca s a le u n d e r s to o d th is to be Dellave rson’s desire

.7

Around the sa

me tim e as the conve rsation in which De llaverson a lleg edly sug g ested a relationship between B auer and Plasser, in mid-January 2003, Anemone ha d a dispute with L app, his su pe ri or , r e g ard ingano the r i nv e sti g a tio n und e rt aken by An e mon e and

Ca sa le int o p os sib le problems in the billing pra ctices of J ohn Wood, an outside attorney used by the MTA. W i thout L a pp ’s kn ow le dg e or

a pp ro va l, Ca sa le ha d re qu e ste d Wood ’s bil lin g re c or ds . L a pp , a ng e re d b y thi s reque st, told Anemone in res p o n s e that “she w ould be the dete rmining f actor in any future investigations” by

the J I TF. She thre atene d “dra stic action” i f s he wa s not able to “de termine the

avenue s of investig ation that would be pursue d,” id. at 46–47, and i n s t ructed Anemone to c lear future inve stigative steps with her. Ane mone, who wa s “insulted” by this conversation, prepar ed a letter of r esig nation but was ultimately talked out of submitting it by Dellave rson. Me a nwhi le, a s a

re su lt o f h is e arl ie r c on ve rs a tio n w ithDe llave rs on , A ne mon e tol d Ca sa le to “continue .

. . or begin nosing around” t he Baue r-Plasser relationship. Id. at 149. This subsequent inv e sti g a tio n le d Ca sa le to Jo sep h Tr ima rc hi, B a ue r’ s f or me r d ri ve r, wh o h a d b e e n s ub se qu e ntl y assig ned to Anemone ’s and Casa le’s task for ce. A ccor ding to Ane mone, Trimarc hi told C asale that Plasser had “ wined and dined” Baue r and that Trimarc hi had driven Ba uer to the airpor

t for a f light to Aus tr ia

fo r w hic h Pl a sser pai d and to t he Wal do rf

-A sto ri a fo r a no the r P la sse r- re la te d e ve nt. Casale f ormally commence d an inves t i gat i o n into the alleg ations reg ardingBa uer a nd Plasser on Fe bruar y 11, 2003. Anemone the rea fter dir ecte d Casale to contac t the Quee ns District Attorney ’s office (“Q ueens DA’s office” ) about the i nvestig ation, not informing L app in spite of her J anuar y d i r e c t i v e . C a s a l e f

i r s tc o n t a c t e d

t h e Q u e e n s D A ’ s o f

f i c e i nm i d

- F e b r

u ar y. On Fe b ru ar y

25 or 26, just day s befor e an impendingMTA boar d meeting , Anemone8

belatedly informed L app of the Ba uer/Plasser inve stigation. Specifica lly , h e informe d L app that “[Casale] and the people at [t he J I TF] had alleg ations that Ba uer ha d been w ined and dined by the Plasser Corporation and . . . that there was a small c ontrac t w ith Plasser that was to be voted on on Thursday at the boar d meeting .” App. at 678. He ha s subsequently admitted he may

have use d the t er m “conf

idential informant” in this conve rsation with L app — henc e sug g esting that the information came from such a source ; however , Anemone ha s also claimed that he may have use d the word “ source ” instead. A ccor ding to L app, upon hea ring of the B auer

/Plasser alleg ations, she instructed Ane mone to cea se his investigation, be cause she was g oing to r efe r the matter to the O I G, the ag ency

authorized to investigate alleg ations of misconduct by MTA offic ials. Anemone took the direc tion as “somewhat of an insult.” Anemone Dep. at 162. On Fe bruar y 27, the MTA B oard of Direc tors had a public me eting , and the c ontrac t betwee n Plasser and the L I RR that Anemone ha d flag g ed wa s taken off

the ag enda. I n explaining this move, Kalikow asser ted that there had been “ an impropriety alleg ed aga inst the president of the L ong I sland Rail Road for re ceivingg ifts from the Plasser Corp.” A

pp. at 980.13. T h e m a t t e r w a s r e p o rt e d

i nt h e p r e s s t h e f

o l l o w i n g d ay. Anemone unde rstood that L app wa s not authorizing him to continue the B auer /Plasser investigation — that he had ar g ued that the investigation should stay with the J I TF, and that he ha d lost. He has admitted spec ifically “that duringthe Fe bruar

y 26 meeting , Kather ine L app instructed [hi m] to cea se th e i n v es tigation of Mr. Ba uer’ s contac ts with P lasser A merica n” bec ause “ she planned to refe r t h e i n v estig ation to the MTA inspector g ener al’s off ice.” Anemone D ep. at 352. Anemone c onvey ed the c onversation with L app to Casale, telling him that “[they ] were out.” Id. at 173. Anemone ne verthe less “thoug ht it was okay for [C asale ] to continue the investig ation,” id. at9

353, stating in testimony

in a sepa rate proc ee d i n g broug ht by Casale that he told Casale af ter the board me eting that he “t h o u gh t i t was a g ood idea that he contac t ag ain or visit the Quee ns DA’s office ,” App. at 1397. He has ag ree d that “it’s fa ir to say , at least fr om Casale’s pe rspec tive, [C asale ] had [ Anemone’ s] authority to g o to the Queens DA .

. . .” Anemone Dep. at 179. He state d that a lth ou g h he tho ug ht “ no bo dy wo uld ob je c t to a law e nf or c e me nt o ff

ic ia l of the Qu e e ns DA [’s ] statur e be inginf

or me d, ” he did

no t te ll L a

pp be c a us e he wa s “ up se t” and

“ did n’t th in k th is wa s a g ood decision she wa s making .” Id. at 354. He fear ed she would halt the i nvestig ation beca use she had indicate d that she wa nted the OIG t o h an d l e i t, and he “ had no conf idence at this point i n the ins pe c t or g e ne ra l’ s c a

pa bil iti e s o r h is i nte g ri ty

int o f oll ow ingthe se le a ds ” and

“ ha d d ou bts a bo ut M s. L app’s a bility to follow these lea ds where ver the y led.” Id. at 355. L app did indeed r efe r the investig ation to the OI G and, on F ebrua ry 27, Maura

Daly , a Senior In v e s t i g a t i v e A t t o r

n e y w i t h t h e O IG , s p o k e w i t h A n e m o n e a b o u tt h e m a t t e r . A c c o r d i n g t o D a l y, Anemone told her

that Casale wa s the source of t he allega tion reg arding Ba

uer a nd Plasser and that there was a

“conf idential informant,” or “CI ” involved. Ane mone disputes whether he eve r stated to Daly that there was a confidential informant. Howe ver, in a Marc h 2003 deposition before the MTA (“ Marc h 2003 deposition”), Ane mone ag ree d with Daly that “[d] uring th e co u rs e of that

conver sation [he] told [her] that Nicholas Casa le was the source of the a lleg ation and that he ha d a confide ntial informant” a nd that he “ might

have use [d] that word with” her. A pp. at 672–73 (empha sis added). A nemone f urt h er testified that he believe d at the time that a “ confide ntialAnemone ha s disputed whether there is any

one ac cepte d definition of “c onfidential 3 inf or mant, ” a lth ou g h h e ha s a lso a g re e d th a t us ingthe te rm “ c omm un ity so ur c e ” wi th D a ly would have be en “mor e cor rec t.” Id. a t 67 6. De fe nd ants a sse rt that a “ c on fi de nti a l in fo rm ant” re fe rs sp e c if

ic a lly to s ome on e wh o is pr ov idi nginf or ma tio n to a

law e nf or c e me nt a g e nc y , w ho is reg istered with that ag ency , and who ha s reque sted confide ntiality . Acc ording to Anemone, a “community

source ,” in contra st, refe rs to someone who in the c ourse of conver sation with an investigator might supply information either

unwittingly

or without being conscious of the fac t that the information mig ht be used in a c riminal investigation. 10 inf or mant” e xiste d and that it

wa s T ri marc hi, De llave rs on , o r p os sib ly so me on e e lse

. Whe n D a ly 3

a sk e d to sp e a k to Ca sa le , A ne mon e ind ic a te d h e tho ug ht t here mi ght be a

“ c on fl ic t of

int e re st” beca use he thoug ht the OI G was inve stigating Casa le in an unre lated matter . Anemone D ep. at 196. I n his March 2003 de position, Anemone stated that he ma y also have been ref

err ing to the c oncer

n that “[Casale] didn’t want to revea l th e n am es o f his community source s,” and that he per haps improperly

termed this conc ern a

“conf lict of interest.” App. at 673. Neve rtheless, on Fe bruar

y 28, Casale spoke with Nick Kapur , the Deputy I nspector G ener al

a t th e OI G. Ca sa le c on fi rm e d th a t he ha d a “ so ur c e ” in t

he B a ue r/ Pla sse r i nv e sti g a tio n a nd that hi s

source was a

citizen of the United States an d a resident of Ne w York. Casa le also cla imed there might be a “conflict of interest” with the OI G handling t he case. Despite assurance s that his source’ s confide nt i ality

would be prote cted, Casa le re fused to g ive Kapur the identity

of his source

. Ac c or din g to A ne mon e ’s Marc h 2 00 3 d e po sit ion , h e “ did no t di re c t [Cas ale ] to c oo pe rate immediately and [ he] did not direc t [C asale ] not to cooper ate.” App. at 697. Anemone also did not himself disclose the sourc e of Casa le’s information to the OI G. Daly testified that the OI G thoug ht the exist ence of a CI

meant there was signific ant information they wer e not g etting, w hile Matthew Sansverie, the I nspector Gene ral, asser ted that he thought it mea nt the source had something moreAnemone ha s acknow ledg ed that he w as aw are that Casale made this statement and has 4 conce ded that Casale may have ma de it based not on a conver sation with Dellaver son but rather on his own “surmising.” Anemone D ep. at 215. When pre ssed as to whe ther such be havior fr om his deputy

was a cce ptable, Ane mone stated that in some situations a “white lie” may be appropr iate, stating that “our lives . . . a re f illed with those lit tle dece ptions.” Id. at 221. 11 than “a n alleg ation as [barebone s] as wining and dining ,” Sansver ie Dep. at 195. Wit h Anemone’ s knowledg e and pe rmission, Casale met with the Quee ns DA’s off ice the very same da y he spoke w ith Ka p u r. At t h e meeting, he indicated that he “had a source of information at the hig hest level of the MTA, and [that] t his source had bee n proven c orre ct prior.” Casale De p. at 91. He la te r t e sti fi e d th a t “ Ido n’ t be lie ve I e ve r u se d, qu ote , c on fi de nti a l in fo rm a nt, close quote, c onfidential informa nt ref err ing to Gary

Dellave rson to the Quee ns district attorney at any time.” Id. On Marc h 3, Casale spoke with Stephe n Spahr, the OI G First Deputy I n s pector Gene ral, an d o t h er m ember s of the OI G staff . Casale c laimed his source was “ very upset” that Kaliko w h a d r e ve a le d th e inv e sti g a tio n at th e F e br ua ry 27 bo ard me e tin g “ and

re fu se d to c ome forwa rd.” Id. at 140. Spahr ag ain assure d him that the source ’s confide ntiality would be pre serve d 4

and that the OI G wo uld be satis fi e d fo r the mom e nt to kn ow the CI ’s e vid e nc e wi tho ut h is i de nti ty be ingre ve a le d. Ac c or ding to a me mor and

um m a de by

the OI G o f t

his c on ve rs a tio n, Ca sa le nonetheless sa id he had no spe cifics a nd sug g ested that the O I G contact the Amt rak O I G re g arding

an ea rlier c ase involving Plasser. At this p o i n t , L app aske d Anemone to have Casale cooper ate a nd identify

the source

. Anemone did not identify Dellave rson at that point, but inst ead told Dellave rson as we ll as L app that the re wa s a

“ c on fi de nti a l in for mant .” An e mon e no w c on te nd s th a t, at th e tim e , h e tho ug ht b oth Dellave rson and Tr imarchi, “ and possibly others unknown to him,” we re the “sourc e of12

inf or ma tio n. ” Ap p. a t 98 0. 52 . A ne mon e a lso “ le t [Ca sa le ] kn ow [L a pp ] is furi ou s. ” He tol d Ca sa le that he was “ try ing to f

end her off, ke ep him in the g ame,” but that he nee ded “some thing to answ er her.” Id. at 1410. On Marc h 3, Casale wr ote an e mail to Anemone stating: “Dire ctor, Confidential community

source ref

uses further interviews and reg istration. Source’ s initi al alleg ation involved M r . B a u e r b e i n g w i n e d an d d i n e d b y P l a s s e r o f f i c i a l s . S o u r c e s t a t e s t h a t t h e r e c o r d s a re sti ll available . Submit ted for y our information.” Id. at 220. Anemone forwa rded the email t o L app the same da y , addi n g “N o l uck with the sourc e comingforwa rd. Sug g est the I G continue the investigation.” Id. at 221. Anemone h as ad m itted that this email was an attempt to cr eate the impression that he was c ooperating with the OI G, as L app had dir ecte d, while not in fac t cooper ating and still hidi ng the source ’s identity

. Id. at 1499. Acc ording to Casal e, the “ source ” mentioned in his email to Anemone was De llaverson. Anemone c laims that this was also his understanding , that it refe rre d either t o De l l averson or Trimarc hi, and that he ha d asked C as al e t o go to Dellaver son to see if he would g o to the Quee ns DA’s of fice to be re g istered. I n re s ponse to the question, “Did Mr. D ellaver son ref use fur ther interviews? ” (a s alleg ed in Casale’s email), Casa le claimed, “ What I ’m saying he re is that Mr. De llave rs on

did no t w ant at that ti me to dis c us s any fu rt he r i n c omi ngfo rw ard

a s th e c omm

un ity

source of all my information.” Casale Dep. at 107. Casale conce ded that he had no t asked Dellave rson whethe r he w ould be re g istered a nd testified that he ha d written that D e ll a verson r efuse d

re g istratio n “ [b]e c a

us e Iwa s conve y ing to Chie f An e mon e the fa c t th a t I tho ug ht w e we re ou t of

tim e and that it was — it was immi n ent t hat Mr. De llaverson would be exposed as the source of the information.” Id. at 114.13

A n e mo n e h a s a g ree d that neither D ellaver son nor Trimar chi would have been r eg istered e ven if their identities had be en disclosed, b eca use they wer e not conf

idential informants. Ane mone claims now that it was possible that Dellave rson m ight have bee n reg istered a nd that it would not have be en a “sig nificant event” if Casale had reg istered him or Trimarc hi. Anemone Dep. at 389. He ha s acknow ledg ed that the differ ence betwee n a community source and a c onfidential informa nt is that “[a ] confidential informant would be somebody reg istered,” id. at 431, bu t c la ims Ca sa le “used the term community source in his conversations with m e, and he used the na me Gar y [Dellaverson] in conversations with m e,” id. at 432–33. He ha s also conce ded that he kne w L app

was seeking to ha

ve Casale reve al the identity of his sour ce, that she had asked him t o “[ h]ave [C asale ] cooperate , identify the source ,” and that, desp i te his own knowledg e that the sourc e wa s Dellave rson, he “wa s n’t about to expose him.” Anemone De p. at 135. Critically , Anemone ha s admitted that he did not do so despite L app’s repe ated reque sts, be cause “I told he r what Ithought she nee ded to know and nothingmore. . . . I had lost trust in [L app]. I had lost trust in the chair man of the MTA, Mr . Kalikow.” Id. at 392. The OI G, which was frustrated by Casale’ s unwillingness to name his informant, announc ed that it was g oing to ta

ke the unusual step of seeking a subpoena of Casale, stating that “[g]iven the g ra vit y of the a lle g a tio n a

nd the pu bl ic sc rutiny

a lr e a dy a c c or de d th is q

ue sti on it i s c le a rl y

unacc eptable that HQ staff would withhold information critical to moving ahea d with an expeditious inquiry into the alleg ation.” App. at 202. On Marc h 4, Sansverie se nt an email dire cting his staff to a sk Ca sa le “ ho w he di d (or did no t) [ ]co mpl y wi th t he re g s o f h is d e pa

rtme nt i n d e a lin g wi th confide ntial inf

ormants,” adding that “[h] opefully , this was not some rec kless alleg ation made out14

of Casale’ s or Anemone’ s dislike f or B auer , which fe eling may be mutual. . . . We are conducting a police c orruption investig ation as we ll as a run down of t he ‘alleg ations’ aga inst Ba uer.” App. at 205. On the same day , Casale, a ccor ding to the t estimony of J ack Ry an, the Chi ef A ssistant District Attorney for the County

of Que ens, sent two JI TF de tectives, Tri m ar ch i an d Alex Rubino, to the Quee ns DA’s off

ice to discuss the investig ation, even thoug h “they rea lly didn’t know much more .” Ry an De p. at 24. As Ry an desc ribed the infor mation they provided, “ we didn’t know if the re w as any there there .” Id. at 59. They had only press c lippings on B auer , and Rubino specific ally stated there was no c onfidential informa nt. T ri m ar chi s imilarly

rec alled not under standing why he wa s direc ted to meet with Ry an and f elt it was “kind of e mbarra ssing,” beca use he w as just Ba

uer’ s driver a nd “ther e wa s nothing to say .” Trimar chi Dep. at 104. Anemone a

nd Casale a lso spoke to Ry an toge ther on Marc h 4 by phone. At no time during this conversation did Anemone indicate that his task forc e wa s no longe r investig ating the matter. He ha s testified that he himself “used that phrase, [confide ntial informant,] . . . in t hat discussion on the speake r phone. I think I did a ny way . I don’t know.” App. at 708. He ag ree d “t h at [ h e h ad]

a dv ise d M r. Ry an o r M r. Mans fi e ld [a lso wi th t he Qu e e ns DA ’s off

ic e ] that Mr . Ca sa le wo uld attempt to c onvince a confide ntial inf ormant to c ooperate with the ir offic e.” Id. Anemone te stified in this l itigation that Ry an “may have used the term CI ,” and that “[w]hen [Ry an] sa id is there a CI ,” either he or Casale resp o n d ed “Yes.” Ane mone Dep. at 434. Anemone c laims now that “[h] ad I known that we’ d been sitti ng here now three y ear s later a nd that letting that ter

m slide as easily

as Idid during that conver sation, Icer tainly would have c orre cted him at that point.” Id. at 435. Ry an himself testified af

firmatively

that Anemone “ told me there w as a CI .” Ry an De p. at 97.15

During this March 4 c onversation, Casale was a sked for the name of

t h e source , but he

r e f u s e d to p r o v id e it

. H e c la im e d h is s o u r c e w a s “ in

th e w in d

. ” Ca s a le D e p . a t 1 5 1

. Ry an stated that Casale told him that “[Casale] spent the weeke nd with [his source] and wa s try ing to talk the guy in. ” Ry an D e p . a t 8 2

. Wh il e Ca s a le late r c la im e d h e “ d [i dn ’ t] r e c a ll ” w h e th e r h e to ld an y one he “spent the w eeke nd trying to c onvince the sour ce to c ome forw ard,” he has a cknowledg ed that he “wa s never

with . . . Del l av er s o n , ” t h e individual he now identifies as this source . App. at 1578. During the ca ll, Anemone also tol d Ry an that bringing the ca se to Quee ns was “pr obably premature” and that he w anted to “r ethink it.” Anemone D ep. at 236. Acc ording to Ry an, Casale asked him not to tell L app that Casale had g one to see the Quee ns DA, asser ting that he would be fired if Ry an did, with Casale ac knowledg ing he “may have a sked Mr. Ry an not to tell Mr s. L app that [he] was ther e.” C a s a l e D e p . a t1 4 4

. Ryans u b s e qu e n t l y a s k e d

A n e m o n e t o c a l l h i m l a t e r i nt h e d ay. Coincidentally , L app called R y an around the s ame tim e for advice on dealingwith Casale. I n talking w ith her, it was cle ar to Ry an that L app did not know C asale and Ane mone had c ontacted the Quee ns DA’s off

ice on the B auer

/Plasser matter. When he later talked to Anemone , he aske d Anemone to “ please call [L app] and tell her be fore Ihave to c all her a nd tell her.” Anemone D ep. at 239. Ry an testified that “[Anemone] sa id some thing to me to the eff ect that [Casale] had spent the wee kend trying to talk the CI i n an d t h at h e hoped that he would have him by the following Fr iday .” Ry an De p. at 16. Ry an also stated t hat he did not believe that Casale ha d a CIand aske d Anemone if

there was a

n informant. Ry an testified “ Ialso told him i t di d n ’t rea lly matter if ther e

was a CI , to just tell us that there isn’t one

. We don’ t ne ed a CI to inve stigate, we c an g o forwa rd, but we ca

n’t be c hasing our tails think i n g t h er e’ s a CIwhen ther e’s not one . . . .” Id. at 17.Anemone c laims that he said they had a “ source ” rather than a CI

. Id. at 240. 5 16 Anemone stated that “I

thought I set him straig ht when I

told him y es, there is.” Anemone Dep. at 241. Acc ording to An em o n e, “it was c lear that [R y an] had doubts” as to the e x istence of a 5 confide ntial informant. Id. at 241. Ry an wa s also aware t h at t h e OIG w as see king to c ompel Casale’ s testimony

and wa rned A nemone “ don’t let [C asale ] perjure himself.” Ry an De p. at 17. Th a t a ft e rn oo n of Marc h 4, Ca sa le wa s fo rm a lly su bp oe na e d by the OI G. Ac c or din g to b oth Spahr and D aly , it was the only time they

could re call issuing a s u b poena f or an MTAemploy ee. Anemone c ontacted the MTA Gene ral Counsel’s office to tr y to quash the subpoena . He a lso went to D ellaver son for help, and has admitted that in doing so, he did not indicate to D ellaver son that he was try ing to pr otect him, but rathe r sug g ested that there was another source . Anemone, w hile he

c la ime d th a t he tol d Ca sa le to b e tr uth fu l, a lso a dmi tt ed that he un de rs too d Ca sa le wa s tr y ingto avoid beingdeposed. On Marc h 5, afte r the pressure from Ry an, Anemone finally advised L app that he had be en to the Quee ns DA’s off

ice, a nd she “r eac ted in a very forc eful and ang ry manner .” Ane mone Dep. at 260. L app re calls Ane mone def ending his actions on the g round that he a nd Casale “had a CI ,” and that “the y

went to the Quee ns DA’s office to he lp the m g et the CI to come for war d.” L app De p. at 165. L app tol d Anemone that Casale had to a ppear befor e the OI G for the deposition, that failure to d o s o w ou ld r e su lt i n d isc ipl ina ry a c tio n, and

sh e dir e c te d h im t o r e qu ir e Ca sa le to c oo pe ra te wi th the OI G. Anemone did not order Casale to appea r, although he testified it was his understandingthat Casale wa s g oing to a

ppear . On Marc h 7, Anemone had lunch with Ca sale and Dellave rson. Dellave rson, who, ac cording17

to h is t e sti mony , h a d n o id e a that he wa s th e su

pp os e d “ sourc e” of

the B a ue r/ Pla sse r a lle g a tio ns , soug ht to “enlist[ ] Anemone’s support t o . . . s ecur e [Casale’s] cooper ation with the I nspector Ge ne ra l,” and to “ se c ur e [Ca sa le ’s ] e xit fr om the or g anizatio n . . . in a wa y that didn ’t exac e rb a te what dama g e had a lrea dy been done .” De l l averson Dep. at 288–89. At this meeting, it wa s clea r t o A n e m o n e t h a tC a s a l e ’ s j o b w a s i nj e o p ar dy. Ca s a le s u b s e qu e n tl y

r e qu e s te d

an d A n e mo ne authorized a “medica l le ave.” Despite Dellave rson’s eff orts, Casale failed to a

ppear at the OI G on Marc h 1 0, a s h is s ub po e na re qu ir e d, a ft e r w hic h Sa

ns ve ri e sent an e ma il t o D e llave rs on a sk ingif Ca sa le wa s o n s ome kin d of lea ve. I n a la te r e ma il that sa

me da y , Sa ns ve ri e ma de c le a r t o De llave rs on

his c on c e rn

that the re qu e st fo r me dic a l le a ve wa s f a br ic a te d, a s it

c oin c ide d s o c los e ly wi th t he date on wh ic h Ca sa le wa s re qu ir e d by su bp oe na to c ome in f

or an in te rv ie w. L a

pp a g a in direc ted Anemone to advise Casale he wa s expected to co o p er at e with t he OI G, with Anemone communicating the order to his deputy but not himself order ing Ca sale’s a ppear ance befor e the OI G. On March 1 1, Sansverie me t with Ry an and the Quee ns DA’s staf f, at whic h time Ry an indicated to Sansverie as well t hat he did not believe the re w as in fac t a CI . Sansverie e mailed L app afte r the mee ting with the Queens DA ’s offic e, notifying he r that Casale had conta cted the D A’s office well af

ter the O I G had been g iven re sponsibili ty for the inve stigation, adding that “it smacks of i nsubordination if someone high i n the P D knew I was taking it over and they went to Quee ns DA any way three day s later. . . . [I ]n m y opinion it was an arme d coup at Hea dquarte rs.” App. at 216. When L app re sponded by asking Sansverie if

he knew when Ane mone had f

irst spoken to the Qu e e ns DA ’s of

fi c e , Sa ns ve ri e wr ote : F ir st, I ’m g oin g to a ssume , unle ss I le arn oth e rw ise fr om you , th a t y ou tol d [An e mon e ] at

that Tue sd ay me e tin g that y ou wo uld be a sk ingthe I G t o in ve sti g a teDe llave rs on la te r t e sti fi e d th a t he did

no t r e c a ll a

nd did no t be lie ve tha

t he e ve r s a id 6 any thing to Ane mone or Casa le that would have led a r easona ble per son to conclude that he b e l i e v e d B a u e r w a s i n v o l v e d

i ne t h i c a l v i o l a t i o n s o r

c r i m e s . A n e m o n e d i s p u t e s t h i s t e s t i m o n y, ho we ve r, and

we have thu s c re dit e d h is v e rs ion of e ve nts
. Anemone ha s since conc eded that he used the te rm with both. 7 18 thi s matte r, no t th e PD. (D id you by any c ha nc e g e t e xplic it wi th him and a dv ise him t o c e a s e an d

d e s i s tw h a t e v e r

h e w a s d o i n g an d

b r i n g i tt o m e ?) Se c o n d , my

r e c o ll e c ti o nf

r o m w h a t I

h e ar d y e s te rday was th a t t

h e n e xt c on ve rs a tio n b e tw e e n Ca sa le and /or [An e mon e ] an d Q ue e ns oc c ur re d on F e b. 28 th or later . . . . [W ]hi le Casale c alled per haps a w eek be fore the L I RR C om m i t tee meeting to report he had “ something big ,” . . . Que ens re ports no further contac t on the matter until Fe b. 28th when Nick pr oduced his “ evidenc e” at the Quee ns DA’s Offic e. Id. at 217. On M ar ch 1 2 , S an s v er i e e m a i l e d D e l l av er s o nt o ad v i s e h i m t h at h e w o u l d b e m ak i n g a motion to compel Casale’s par ticipation i n t h e OI G deposition. Sensing that Casa le’s Ane moneapprove d “medica l leave” might be illeg itimate, Sansverie added that if the OI G found e vidence that this was the ca se, it would demand “ swift and fina l administrative action.” Id. at 206. On Mar ch 26, Casale be latedly

appea red f or his de position, at which time he finally named De llaverson a s the

“ so ur c e ” that ha d p ro mpt e d th e inv e sti g a tio n in to P la sse r an d note d tha t Tri marc hi pr ov ide d s ome additional information. The same day , Dellave rson was also deposed by the OI G. He te stified that he wa s not a confide ntial informant, nor ha d he ever been off ere d status as such. An e mon e c la ims , 6 howeve r, that af

ter De llaverson’ s deposition, Dellaver son said to him “Ididn’t appre ciate that Nick identified me a s the source .” Ane mone Dep. at 148. On Marc h 27, Anemone was hi mself deposed by the OI G. Anemone te stified that he may have a dvised L app and D ellaver son that a “c onfidential informa nt” exist ed, and ag ree d he mig ht

719

have us e d th e wo rd

wi th D a ly

a s w e ll. He also conce ded that he used the term with the Quee ns DA’s office

. Anemone now

admits that “[t] here was no confide ntial inf ormant as it is used in common p o l ice pa rlanc e.” A nemone De p. at 311. Ca s a le w a s e v e n mo r e d e f in it iv e , s tati n g tha t “Mr. De llave rs on

wa s n e ve r a

c on fi de nti a l in fo rm ant.
. . . It’ s mi nd bo g g lin g to beli eve that y ou wo uld want to make t h e No . 2 man of the MTAinto a confide ntial informant, which some dr ug deale r become s beca

use he’s rec eiving a benefit.” Casale Dep. at 271. Anemone’ s “take -aw ay ” fr om the deposition was that the OI G had a n “intere st in nailing [Casale] and/or [him] ,” Ane mone Dep. at 369, and “ [w]he the r o r n ot [h e ] wa s g oin g to b e emp lo y ed in the futur e wa s in the ba c k o f [h is] head,” id. at 363. When he completed his de position, while he “didn’t believe [he w as g oing to be terminated],” he “ assumed that it . . . could be a possibili ty .” Id. at 364. On the af ternoon of Ma

rch 28, the day

afte r Anemone’s depositi on at the OI G, Anemone and Casale went to the New Y ork Times ’ office s to meet with two repor ters, Randy

Kenne dy and B ruce L amber t. Anemone did so, he nowclaims, bec ause he believed that “the only hope wa s to raise the g overnor ’s inter est in this is sue, . . . not throug h his polit ical appointed or elec ted offic ials, but throug h the medium of

using the press to tell our story .” Id. at 299. He did not take the direc t action of c a lli ngGo ve rn or

Pa taki, e ve n th ou g h th e pa ir kn e w e a c h o the r, be c a

us e An e mon e “ fe lt the pr e ss of time.” Id. at 362. Moreove r, Ane mone fe lt that it was part of his “job duties” to g o to the New Y ork Times under these circ umstances, albeit as the “ last option available.” Id. at 304. Howeve r, he also testified that he thoug ht he “ wa s t er m i n ated because [he] went to The Times a s a citizen whose duty

it was to alert . . . the pe ople in the city and the state of the da

ng ers pose d by

an ag ency almost out of control . . . .” Id. at 320. Casale testified that at the time he and Anemone went to the20

ne ws pa pe r, he “ be lie ve [d] th a t it

wa s c le ar t

hat a t th e ve ry le a st the y wo uld te rm inate me .” Ca sa le Dep. at 207. The repor ters beg an to put togethe r a f ront pag e story

that would appea

r on the Times we bs ite on Marc h 29 and appe ar in print the following day

. I n it, Ane mone and Casa le contende d that toplevel MTA of

fi ci al s were fr

ustrating corr

uption investigations. The a rticle, hig hlighting the “extraordinar

y rift” Anemone’s alleg ations repr esente d, stated t hat Anemone and Casale “had ma de the highly unusual decision to speak publicly about the alleg ations,” but “a s a last re sort, afte r trying repe atedly

to work throug h internal c h annels.” App. at 228–29. Be y ond his alleg ations of obstructed

corr uption investigations, Anemone expli citly connected his corr uption claims to his role as the MTA’s Dire ctor of Sec urity , stating that the corr uption he identified “thre aten[ed] to un dermine eff orts to protect the transit sy stem from terrorism” and “le[ft] the age ncy vulnera ble bec ause ma

ny of [the alleg edly

corr upt contrac tors] have acc ess to inf ormation like blueprints and sec urity plans.” Id. He c harg ed that his investigative eff orts wer e being repeatedly impeded by MTA offic ials and that in his sit uation, “[t] y pically , [he] would resig n, but if [he’s] out, [he] can’ t help them.” Id. at 229. Dellave rson, L app, and Sansverie all beca me aware of t he article’s publi cation on Marc h 29, wh e n it fi rs t a pp e are d o nli ne . B e tw e e n M arc h 3 0 and Ma rc h 3 1, Sans ve ri e dr a ft e d th e I nte ri m Report, a report on the OI G’s inqui ry into the Bauer /Plasser alleg ations and the alleg ed obstruction of that in qu ir

y by An e mon e and Ca sa le

. Th e Re po rt iss ue d o n M arc h 3 1, a Sun da y . Wh ile Sans ve ri e acknow ledg ed that it wa s unusual for the MTA to issue an interim repor t in an employ ee misconduc t

c o n te xt an d f

o r h im to c o me in o n a Sun d ay to dr a f t it , h e n o te d s e v e r a l r e a s o n s f o r is s u in g the21

Report when he did. First, the timing r efle cted to some d egr ee t h e conc lusion of the OI G’s investigation, since Anemone ’s and Casa le’s depositi ons had both conc luded by Marc h 28. Second, the rushed draf

ting also ref

lected the exigenc y imposed by his loss of trust in Anemone a nd Casale. Acc ording to S an s verie , Anemone’ s lack of c ooperation with the OI G, the “sig nificant lac k of candor ,” and his “ failure to provide direc tion” of Casale all contributed to a situation of pe rce ived exigenc y . Sansverie D ep. at 116. Th ir d, and re la te dly , a pu

bli c , a nd in S ans ve ri e ’s min d in c or re c t,

acc ount of Anemone ’s ac tions withi n the MTA had now been published in the Ne w Yo r k Time s . Whil e the Repor

t closely followed on the he els of the Times story , howeve r, no party disputes that signific ant portions of it were draf ted be for e the Times article appea red. The fa cts section of the Report larg ely mirrore d the ac count outlined here . I t focused on An e mon e ’s c la im that Ca sa le ha d a “ c on fi de nti a l in fo rm ant, ” an in fo rm ant t he Re po rt c on c lud e d d id not in f act e x ist. The Report hig hlighted the difficulties the OI G experienc ed in g etting Ca sale a nd Anemone to c ooperate. I n a dd iti on , it re po rt e d th e vis its by

JI TF de te c tiv e s to the Qu e e ns DAin

e ar ly M ar c h , a s w e ll a s A n e mo n e ’ s o w n c o n v e r s a ti o n s w it h Ry an , an d c lo s e d b y c h r onicling the testimony g iven by Casale a nd Anemone to the O I G at the e nd of Mar ch. Wit h respe ct to the Bau er / P lasser inve stigation, the Report noted that Anemone ’s and Casale’ s actions “evince[d] a gra ve deviation from acc eptable pr actice s by two high r anking MTA offi c ia ls c h ar g e d w it

h th e mo s t s e n s it iv e o f d

u ti e s in th [i s ] p o s t Se p te mb e r 1 1 e r a . ” App. at 213. I t c oncluded they had “fa

bricat[ ed] a confide ntial inf ormant in or der to a ccuse the forme r President of the L I RR of misconduct,” an d t h at their “subse quent ac tions . . . are r eplete w ith obstruction, half-tr uths a nd outrig ht misreprese ntations made to avoid admitting the ir wrong doing.” Id. With22

respe ct to the conf

idential informant, it noted that both Anemone a nd Casale ha d admitted there was

never any such “c onfidential informa nt.” While Anemone cla imed he had ma de a “ mistake,” the Report sug ges t ed that, given Ane mone’s experienc e as a police off

icer , the “e normity

of such a ‘mistake’ a

nd the lack of

g ood faith exhibit ed by

Anemone in making suc h a ludicrous c laim are evident.” Id. The Repor

t highlig hted Anemone ’s and Casa le’s dec ision to g o to the Quee ns DA’s office rathe r than c ooperate with the OI G. Over all, it conclude d that the two had e ng ag ed in “police misconduct of the hig hest order , contriving a non-e x istent informant and using such an ug ly device to acc use an individual of spe cific w rong doing w ithout evidence.” Id. a t 21 4. I t st a te d th a t “ wi thi n day s of making the damning admission [in the ir depositions] that there never was a co n fi d ential inf or mant, Mr

. Ca sa le and

Mr . A ne mon e too k d e sp e rate a c tio n, a tte mpt ingto c loa k th e mse lve s in the g arb of

whistleblower be fore the MTA could take action ag ainst them for this misconduct.” Id. Th e I nte ri m Re po rt

c on c lud e d b y

statin g tha

t: Anemone’ s and Casale ’s willingne ss to fabricate an infor mant and their r epeated, aff irmative attempts to induce indivi duals to believe that there was specific e vidence a g a ins t K e n B a

ue r w he n th e re wa s n on e sh ou ld b e mor e tha n e no ug h b a sis fo r t

he ir termination. Given the c ritical nature of the s ecur ity of the MTA a

nd the nee d for c omp le te c on fi de nc e in t

he me tho ds of tho se e ntr

us te d with pr e se rv ingit, su c h a c ts perpe trated by the Direc tor and Deputy Direc tor of Security undermine the confide nce of

all who must deal with them. Anemone and Casale h ave tr aded on their cr edibility , and, havinglost it , can no long er c ommand t h e respe ct or trust of those they

supervise or

repor t to. Id. at 215. Qu e e ns Di str ic t A tto rn e y

Ric ha rd A. B ro wn

a lso iss ue d a

pu bli c state me nt w he n th e I nte ri m Re po rt wa s re le a se d, no tin g that his of fi c e ha d a tte mpt e d to i nv e sti g a te the a lle g a tio ns br ou g ht t o it by Casale, but that despite both An emone’ s and Casale ’s assura nces that there w as a c onfidential23

informant, both A nemone and Casale had now ac knowledg ed no such infor mant exis ted. He a dded that he wa s “disappointed — and, quite fra nkly , somewhat be wildere d” by Anemone’ s and Casale ’s actions. App. at 230. After rec eiving the I nterim Report, Dellaverson decided to put Anemone on a dminist rative le a ve , wh ile g ivi ng him an o pp or tun ity to r e sp on d to the Re po rt
. Ac c or din g to D e llave rs on , b e c a us e Anemone ha d used the term “conf idential informant” specifica lly with him, he knew that aspe ct of the repor t to be fac tual and so was particula rly struck by “the repor

t’s conclusion [t hat] n o s uch confide ntial informant exist ed.” D ellaver s o n De p . at 235. Wit h respe ct to the Tim es s t o r y, Dellave rson stated that it “ had nothing to do with [his] decision to pla ce e ither [Anemone or Casa le] under a dminist rative le ave.” Id. at 248. He a cknowledg ed, howe ver, that Anemone’ s exercise of “no judg ment” in making “base less alleg ations ag ainst his employ er in the N ew Yor k Times . . . and his c on ne c tio n o f tho se ba se le ss al le g a tio ns to a n a sse rt ion

that pl a c e d M TAc us tom e rs a t r isk ” did influence his subsequent dec ision to fire Anemone

. Id. Despite his suspended status, on April 11, 2003, Anemone appea red befor e the New Y ork State Assembly

Standing Committee on Corporations, Authorities, and Commissions, s peakingas “Dire ctor of Sec urity

of MT A.” His testimony outlined his concer

ns with the past investigative eff orts of the OI G and complained that he had now been ma de the tar g et of a n OI G investig ation for no leg itimate rea son. He claimed t hat hi s conce rns about corr uption wer e connected to his positi on as Dire ctor of Sec urity

at the MTA be cause corr upted offic ials can be blackmailed by third parties and ter rorists, there by b ec oming se curity threats: “We can’t se cure the MTA unless we have the absolute conf

idence in the people that a re w orking for us.” App. at 180.24

Ab ou t on e we e k late r, on Ap ri l 18, 200 3, Sans ve ri e se nt a le tte r to K a lik owe xpre ssi nghis

conce rn with Anemone’ s and Casale’ s conduct in a nother are a. Anemone and Casale ha d cre ated a Counter Te rror ism Advisory Board (“CTAB” ), ostensibly to provide expertise to the JI TF in a

va ri e ty of are a s. Ho we ve r, a pp oin te e s inc lud e d, a mon g oth e rs , a ur olo g ist wh o w a s f ri e nd s w ithbo th Casale a nd Anemone, Ca sale’s la ndlord, a sec urities trade r and hor se bre eder who ha d socialized with Anemone, and a retire d corpor ate f inancial of

fice r who ha d also socialized with Anemone a nd

se rv e d wi th him on a

ho sp ita l bo ard

of dir e c tor s. Whil e the CTAB had never met, its members wer e g iven police- sty le badg es and pa rking placa

rds. Sansverie ’s letter to Ka likow highlig hted “Ane mone’s and Ca sale’s c avalier attitude tow ar d t h e prope r for mation of such a boa

rd, . . . the number of misre prese ntations they made a bout the board . . . [ and their] actions in providing Police Depa rtment identification ca

rds, par king pla car ds and badg es . . . without a s much as a bac kg round chec k (or f

urther MTAapprova l) . . . .” Id. at 241. He c oncluded that “ [t ]he board’s a ctual membership complete ly

belies its aug ust sounding role and betr ay s the fac t that, despite claims made to the publ ic and the l aw enforc ement communit y , there was no boa rd of e x perts behind Ane mone’s and Casale ’s moves.” Id. Anemone w as t erminate d on May 8, 2003, as he was advised in a letter f rom Dellave rson, to whom the d ec i s i o n h ad bee n deleg ated by L app. The letter stated, “ Iam writing to advise y ou that, based on my

car eful re view of the i n formation in m y possession and known to me, y our employ ment as Deputy Ex ecutive Direc tor/Direc tor of Secur ity is being terminated be cause of y our failure to perfor

m the duties and re sponsibili ties of y our position in a satisfa ctory manner , including y our fa ilure to proper ly

supervise the Deputy

Direc tor of Secur ity .” App. at 250. Dellave rson has25

state d that the de c isi on “ wa s p re dic a te d u po n a ny numbe r o f t

hin g s, ” inc lud ingthe I nte ri m Re po rt , De llave rs on ’s and

L a pp ’s “ los s o f .

. . con fi den ce” in A ne mon e , “ his fa ilure to f oll ow[L a pp ’s ] direc tion, his failure t o supervise Mr. Casale,” and finally , Anemone’ s “dec ision and . . . lack of any discretion,” not in spea

king to the Times , “but in what he s p o k e t o T h e New Y ork Times and the basele ss alleg ations that he made ag ainst his company .” De llaverson De p. at 253. L app conc urre d that te rm inatio n w a s a

pp ro pr ia te ba se d on “a va

ri e ty of fa c tor s, ” inc lud ing “ re c e ivi ng. . . c omp la int s about his staff, i.e., M r. Casale,” L app De p. at 91, the fa ct that Anemone and Casale , despite her direc tions, “broug ht the m atter to the Queens District Attorney office without [ her] knowledg e,” id. at 94, the cl ai m ab o u t the exist ence of a c onfidential informa nt that both the OI G and the Q ueens DA’s of fice had found not to be acc u ra t e, and A nemone’ s “misjudgments or que stions about judgme nt, and the fa ilure to take dire ction,” id. at 95. On September

10, 2003, the OI G submitted a final re port on the B auer /Plasser investigation, finding that Ba

uer ha d been e ntertaine d five times by Plasser but conc luding that the meals did not establish a quid pro quo re lationship with respect to Plasser’ s contrac t with the MTA, beca use the Plasser contract was a “sole source procur ement” f or a c erta in machine that only Plasser make s, the contra ct price was ne g otiated down sig nificantly , and B auer was not involved in procur ement. B auer

wa s u lti ma te ly

fo un d to have c omm itt e d e thi c s v iol a tio ns , w iththe fi nd ing s r e po rt e d in a pr e ss rele ase on D ece mber 5, 2003. W h i l e b o t h An em o n e a n d C as al e w er e e n t i t l edt o av ai l t h em s el v es o f a “n am e- cl ea ri n g”Whe n A ne mon e re qu e ste d a “ name c le ari nghe ari ng ” in a le tte r s e nt b y

his a tto rn e y

to 8 the MTA on May

9, 2003, he wa s informed that the me ans of pur suing suc h a hea ring under N ew York lawwas throug h an Ar ticle 78 proc eeding . Unlike Casale, he never filed for such a proce eding

. Anemone , 2008 WL 1956284, at *7. 26 hear ing in a

proce eding under N ew Yor k’s A rt i cl e 7 8 , only

Casale did. On Novembe r 6, 2007,

8 Hea ring Offic er Kenne th F einber g issued his de cision in that m atter. He c on c lud e d th a t Ca sa le

“ fa ile d to pr ov e by

a pr e po nd e ra

nc e of the e vid e nc e that th e state me nt t hat he wa s d ish on e st i n

connec tion with the Plasser American matter is false.” Casale v. MTA, I ndex No. 115718/03 (SKH), at 3 (N.Y . Sup. Ct . Nov. 5, 2007) (N ame- ClearingOpinion). I nstead, “ C as al e’s own te stimony demonstrates that in his dogg ed pursuit of this g oal [ o f i n v es t iga ting potential c orruption in the MTA] he violated direc tives from Katherine L app, the Ex ecutive Direc tor of the MTA, conc eale d these violations from L app, the Que ens DA a nd the OI G, and obstruc t ed t h e i nvestig ation of the OI G.” Id. II. P roce dural Hi story As n o t ed , An em o n e d i d n o t ch o o s e t o av ai l h i m s el f o f an Ar t i cl e 7 8 n am e- cl ea ri n g h ea ri n g. I nstead, he filed his complaint in the instant action on Marc h 24, 2005, asser ting that the MTA and the ind ivi du a l D e fe nd ants too k a numbe r o f a dv e rs e e mpl oy me nt a c tio ns in r e ta liatio n f or F ir st Amendment-pr otected a ctivit y e x posing c orruption at the MTA, in violation of 42 U.S.C. § 1983 and the Fir st and Four

teenth Amendme nts to the United States Constit ution, a s well as provisions of the New Y ork State Constitut ion. He fur ther a sserted tha t , b as ed on the manne r in which he was suspended a

nd then fire d and on the r elea se of a lleg edly defa matory s t at em ents about him in the press, De fenda

nts denied him due proc ess of lawunder both the fede ral Constit ution and the New27

York State Constituti on. Wit h respe ct to all his constituti onal claims, he a sserted that the individual De fe nd ants ha d a lso c on sp ir e d in vio la tin g his ri g hts . F ina lly , h e a sse rt e d sta te law c la ims a g a ins t the MTA under

New Y ork Civil S ervic e L aw § 75- b. On May 27, 2005, Sansverie moved to dismiss the complaint. I n an opinion issued J anuar y 24, 2006, then-Chief Judge Michae l B. Mukase y dismiss ed Ane mone’s due pr ocess a nd conspirac y claims ag ainst Sansverie, but d id not dism iss the First Amendment c laims. Anemonev. Me tro. Transp. Auth. , 410 F. Supp. 2d 255, 264 (S.D.N.Y. 2006). The court noted t hat t he speech for which An e mon e a lle g e d r e ta liatio n c on c e rn e d M TAc or ru pti on and thu s r e la te d to an is su e of “ pu bli c

conce rn.” Id. at 265. I t further conclude d that the alleg ations that Sa n s v er i e had instigated an

a lle g e dly re ta li ato ry

inv e sti g a tio n le a din g to A ne mon e ’s su sp e ns ion and fi ri ngwe re su ff

ic ie nt, if proven, to c onstitut e an ad v er s e employ ment action and that Anemone ha d sufficie ntly pleade d a

causa l connec tion betwee n the protected speech and adver se ac tion. Id. at 267. The district c ourt also ruled that ne ither qualified immunity nor absolute immunity

justified gra n t i ng Sansverie’ s motion to dismiss on the First Amendme n t claims

. Id. at 271. I t determined, how ever , that Anemone ha d failed to state a claim for a

proce dural due proce ss violation, as S an s verie had no means of pr oviding Ane mone wit h any proce ss in the first plac e. See id. at 270. Fina lly , it dism issed

su a s po nteAnemone’ s various conspiracy claims ag ainst the individual Defe ndants, applying the intracor porate conspirac y

doctrine a

nd rea soning that all the individuals wer e employ ed by the MTA and ag ents of the MTA, a

nd that the MTA ca

nnot conspire with itself. Id. at 271. The district c ourt later denied a motion for reconsider ation on the intrac orporate conspira cy ruling

. Anemonev. Me tro. Transp. Auth. , 419 F. Supp. 2d 602, 603 (S.D.N.Y. 2006)

.An e mon e ha d p re vio us ly wi thd ra wn his c la ims ma de purs ua

nt t o N e w Y or

k Ci vil 9 Service L aw § 75- b. See A nemone , 2008 WL 1956284, at *1. 28 The c ase w as subseque ntly rea ssigne d to J udg e L oretta A. Preska, and on May 2, 2008, she iss ue d a n o pin ion g ra nti ngDe fe nd ants ’ m oti on s f or su mma ry jud g me nt o n a ll remain ingc la ims

. 9 The district cour

t concluded that e ven assuming that Anemone spoke on a matter of public conc ern, the MTA had an “ade quate justification” to ter minate him “bec ause, on this re cord, a rea sonable jury could not find that the MTA ter minated him f

or ‘exposing corr

uption’ within the org anization, that is, for speaking out on a

matter of public c oncer

n.” Anemone , 2008 WL 1956284, at *8. The district court found that “the on ly e v i d e n c e o f

an y improper reta liatory motive on the part of a ny Def endant is the fac t that Anemone’ s suspension occur red on A pril 1, only three day s after the publication of the Ne w York

Tim es article .” Id. a t *9 (e mph a sis in o ri g ina l) . M or e ov e r, it n ote d th a t, w hil e temporal proximit y

is often sufficie nt to create an issue of fac t as circ umstantial evidence of improper intent, it is not in and of itself sufficie nt in every case . Id. at *10. The court pointed to the fac t that Dellaver son decide d to terminate Anemone a nd conclude d that a re asonable jury could not find that Dellave rson had an imprope r motive, g iven Anemone ’s long and intensifying history of insubordination and Dellaverson’ s ear lier active role in initiating and participating in the corr uption investigations. See id. at 11–15. Anemone ’s spee ch to the Tim es wa s a lso “ a ‘u nit ary a c t’ tha t c ou ld prompt either a permissible or impermissible response from the g overnme nt employ er.” Id. at *12. Punishi ng Anem o n e fo r t he disruptive cha rac ter of the speec h was pe rmissible, the district court conclude d, and De llaverson testified that wh at he found objectionable w as not exposure of the alleged “c o rr uption” but that the alleg ations of a “ cover up” we re ba seless and c olored by29

implausible alleg ations of a ter rorism threat. Id. I n the alt er native, the c ourt held that under Mt. Healthy City School District Board of Education v. Doy le, 429 U.S. 274, 287 (1977), no re asonable jury could fa il to find that Anemone would have been terminated even without his speech to the Times , as a r esult of his various ac ts of ins ub or din a tio n w hic h h a d le d to an inve sti g a tio n th a t w a s a lr e a dy on g oin g by

the tim e he sp ok e to the newspa

per. Id. at *15. The district court held that Anemone ’s comments to the Que ens DA’ s

o f f i c e an d h i s t e s t i m o n y t o t h e S t a t e A s s e mb l y w e r e c o v e r e d b y Garce tti v. Ceballos , 547 U.S. 410, 4 2 6 (2 0 06), and thus did not constitute protecte d speec h. Id. a t * 1 6

. F in a ll y , th e d is tr ic t c ourt dismiss ed Ane mone’s due pr ocess c laim on the theory t h at a post-deprivation Article 78 re medy pr ov ide d due proce ss f

or any a lle g e d s tig ma

An e mon e ha d s uf

fe re d b y vir tue of the De fe nd a nts ’ actions. Id. This appea l followed. DI SCU SSIO N I. Stand ard of Review Th is C ourt

re vie ws g ra

nts of su mma ry jud g me nt de novo

. Mc

Br idev . B IC Con su me r P ro ds

. Mfg. Co. , 583 F.3d 92, 96 ( 2d Cir. 2009). We uphold a g rant of summar

y judgme nt “only

wher e,

c on str uin g a ll the e vid e nc e in t

he lig ht m os t f

a vo ra ble to t he no n- mov ant a

nd dr awi nga ll r e a so na

ble infere nces in that pa

rty ’s favor, ‘ther e is no g enuine issue a s to any materia l fac t and . . . the movant is e n t itled to judgment as a matter of la

w.’” Id. at 96 (omission in original) (quoting Fe d. R. Civ. P. 56(c))

. I I . Fi rs t A men d men t R et a l i a ti o n Cl a i msBe cause we f ocus on the inevitability

of Ane mone’s discipline and subse quent 10 termination reg ardle ss of any protec ted spee ch, we have no oc casion to consider whether , as Anemone a

rg ues, the district cour

t should have ana ly

zed the motivations of actors other than De llave rs on

in a sse ssi nghis re ta liatio n c la im. 30 Th e dis tr ic t c ourt grant e d s umm ary jud g me nt t o D e fe nd ants on a ll o f A ne mon e ’s F ir st Amendment cla ims under § 1983 on at least one of the following three g rounds. Fir st, it held that

no re a so na

ble jur y c ou ld f ind tha t D e llave rs on

te rm inate d A ne mon e ou t of a de sir e to punis h h im for his alleg edly

protec ted expressive ac tivity . Second, and in the alternative, i t held that under Mt

. Healthy a re as o n ab l e j u ry could not help but find that Anemone would have suf fer ed the a lleg ed

a dv e rs e e mpl oy

me nt a c tio ns e ve n in the a bs e nc e of his a lle g e dly

pr ote c te d a c tiv ity . T hir d, it h e ld that at l east two inst ance s that Anemone c ites as protec ted ac tivity — his contact with the Que ens DA a n d h i s testimony

befor e a State A ssembly leg islative committee — wer e in fa ct unprotec ted

em p l oy ee spe ech unde r Ga rc e tti

. W e a f f i r m t h e d i s t r i c t c o u rt ’ s g r an t o f s u m m ar y j u d g m e n t to Def endants on the Mt. Healthy g round. 10 A. The St anda r d for Est abl ishi ng a F ir st Am e ndm e nt Re ta lia ti on C lai m An e mon e c on te nd s th a t he wa s su bje c te d to a dv e rs e e mpl oy me nt a c tio ns , c ulm inatin g in h is termination, in r etaliation for his a lleg edly protec ted expressive ac tivity exposi ng corr

uption in the MT A. He po in ts to t

hr e e ins tanc e s o f a lle g e dly pr ote c te d s pe e c h: ( 1) his (a nd Ca sa le ’s )

conver sations with the Queens D A’s off ice, c ulminating in the Mar ch 4, 2003, communication among Anemone, Ca sale, a nd Ry an re g ardingthe B auer /Plasser investigation; (2) his Ma rch 28, 2003 communication with New York Ti mes repor ters, which r esulted in the Times article rec ounting Anemon e’ s al leg ations that MTA offic ials were impeding c orruption investig ations and there by31

“ un de rm in[i ng ] ef

fo rt s to pr ote c t th e tr ans it sy ste m fr om te rr or ism ,” Ap p. a t 228; and (3 ) h is A pr il 11 , 2 00 3 a

pp e ara nc e be fo re the Ne w Y or

k S ta te As se mbl y

Stand ingCom mit te e on

Cor po ratio ns , Authorities and Commissi ons. Th is C ourt

ha s p re vio us ly

ou tli ne d th e sta

nd ard fo r a sse ssi ngwh e n th e sp e e c h o f a publ ic

e mpl oy e e is p ro te c te d f

ro m r e ta li a

tio n b y the F ir st A me ndme nt. Th is s tand ard “ e nta ils tw o in qu ir ie s: (1) ‘ whether

the employ ee spoke as a citizen on a matter of public conc ern’ and, if so, (2) ‘whe ther the re le va nt g ov e rnme nt e nti ty ha d an a de qu a te jus tif ic a tio n fo r tr e a tin g the e mpl oy e e di ffer e ntl y from any other membe r of the g ener al public.’” Ru oto lo v. City of N e w York, 514 F.3d 184, 188 (2d C i r. 2 0 0 8 ) ( qu o t i n g Garce tti v. Ceballos , 547 U.S. 410, 418 (2006)) . To survive summary judgme nt on a F irst Amendment re taliation claim, a public employ ee “ must bring forth evidenc e showing that he has e ng ag ed in protec ted Fir st Amendment ac tivity , he suff ere d an adve rse employ

ment action, and ther e wa s a ca

usal conne ction betwee n the protec ted ac tivity and the a dverse employ ment action.” Dillon v. Morano , 497 F.3d 247, 251 (2d Cir. 2007)

. I n addition, “wh en t h e p l aint iff’s pr ote c te d c on du c t is a un it ary e ve nt t hat c ou ld p ro mpt

e ith e r a pe rm iss ibl e or

an im pe rm iss ibl e

rea son on the part of

the def endant to ac t, . . . claims of alleg ed ret ali ation for the e x erc ise of a constitutional or statutory rig ht require focusingpreci s el y o n whether the def endant a cted f

or an impermissible reason, a

nd not merely

in response to the plaintiff’s conduct.” Gree nwich Citi zens Committee, Inc. v. Counties of W arren & W

ashington Indus. Dev. Age ncy , 77 F.3d 26, 33 ( 2d Cir. 1996). The plaintiff bear s the “initial bur den of showingthat an improper motive play ed a substantial part in def

endant’ s action.” Sc ott

v . Co ug hli n , 344 F.3d 282, 288 ( 2d Cir. 2003). Even if the plaintiff makes out a prima fa cie r etaliation claim, a g overnme nt defe ndant may32

still rec eive summary

judgme nt if it establishes its entit l em ent t o a re levant def ense. O ne such defe nse, ar

ticulated in Mt. Healthy , 429 U.S. at 287, provides that “e ven if ther e is evidenc e that the

a dv e rs e e mpl oy

me nt a c tio n w a s moti vat ed in pa rt by pr ote c te d s pe e c h, the g ov e rnme nt c an avo id liability if it can show that it woul d have taken the same adve rse a ction in the absenc e of the protec ted spee ch.” He il v . S an tor o , 147 F .3 d 103 , 1 09 (2 d Ci r. 19 98 ). “ Th e c on sti tut ion a l pr inc ipl e at stake [, i.e. , fr eedom f

rom reta liation for protec ted spee ch,] is sufficiently vindicated if suc h an employ ee is plac ed i n n o wo rse a position t han if he had not eng ag ed in the [protected] conduc t.” Mt. Healthy , 429 U.S. at 285–86. This “princ iple preve nts an employ ee who eng ag es i n unprotec ted conduct f rom escapi n g d iscipline for that c onduct by the fa ct that it was re lated to protec ted conduct,” He il , 147 F.3d at 110, and ensure s that an “employ ee who makes a n unprotec ted statement is not im muniz ed fr om discipline by the fa ct that t h i s s t at em ent is surrounded by protec ted statements,” id. (q u o t i n g W ate rs v . Ch ur c hil l , 511 U.S. 661, 681 (1994) (inter n al quotation mark omitted)). We have no t ed t h at “althoug h the lang uag e in Mt. Healthy ref ers to the plaintiff’ s conduct , the [S upreme ] C ourt’s ana ly sis, pr operly understood, attempts to w eig h the impact of the de fe nd ant’ s impermissible reason on the def endant’ s decision to act, ” s u ch that a def endant c an “avoid liabili t y

by showing that it would have take n the same a ction in the absenc e of the impermissible reason.” Gree nwich Citi zens Comm. , 77 F.3d at 32. The burde n is on the g overnme nt to make out the def

ense. He il , 147 F.3d at 110

. The g overnme nt can a lso avoid l iability under w hat is commonly ref err ed to as the Picke ring balanc ing te st. See P icke ring v. Bd. of Educ. , 391 U.S. 563 (1968). Unde r t h i s d efe nse, “[a] g overnme nt employ er ma y take a n adver se employ

ment action ag ainst a public employ ee f or spee ch33

on ma tte rs of

pu bli c c on c e rn

if : ( 1) the e mpl oy e r’ s p re dic tio n o f t he dis ru pti on that suc h spe e c h w ill

cause is reasona

ble; (2) the potential for disruption outweig hs the value of the spee ch; and ( 3) the employ er took the a dverse employ m en t ac t ion not in retaliation for the e mploy ee’ s speec h, but beca use of the pote ntial for disruption.” J oh ns on v . G an im , 34 2 F .3 d 10 5, 11 4 (2 d Ci r. 20 03 ). Thus , “def endants may

. . . esca pe liability

if they can demonstrate that

. . . the plaintiff’s e x pression wa s likely to disrupt the g overnme nt’s activities and that the ha rm ca used by the disruption outweig hs the value of t he plainti ff’ s expression.” Skehan v. Village of Mamaronec k , 465 F.3d 96, 106 ( 2d Cir. 2006), overruled on other grounds by Appel v. Spiridon , 531 F.3d 138, 140 (2d Cir. 2008). Ag ain, the burde n is on the defe ndants. Id. B. A pp li c a t io n o f Ga rc e tti to P laintif

f’s S peech to t he Queens DA At the ou tse t, A ne mon e c la ims that his an d Cas a le ’s c on ta c ts w iththe Qu e e ns DAc on sti tut e First Amendme nt-protec ted spee ch on the g round that he a nd Ca s al e “w ent outside the cha in of command to make statements to a neutra l third party about their suspici o n s ab o u t L I RR gra ft and MTA cor ruption.” Appe llant’s Br . at 55 The district c ourt held that these c ontacts we re ma de “pursua nt to [ Anemone’ s ] official duties” and w ere thus not insul ated f rom employ er discipline under Ga rc e tti

. See Anemone , 2 0 0 8 W L1 9 5 6 2 8 4 , at * 1 6 (c i t i n g Ga rc e tti , 5 4 7 U

. S. a t 4 2 6 )

. We

a g re e wi th t

he dis tr ic t c ourt
. Ga rc e ttireinfor ced “ the pre mise that while the F irst Amendment invests public employ ees with cer tain rig hts, it does not empower them to ‘c onstitut ionalize the employ ee g rieva n ce.’ ” Ga rc e tti , 5 4 7 U. S

. at 4 2 0 (q u o t i n g Con nic k v . M y e rs , 461 U. S. 138 , 154 (1 98 3) ). Thus , th e Sup re me Co u rt held that “whe n public employ ees make stateme nts pursuant to their offic ial duties, the34

employ ees a

re not spea

king a s citiz ens for

First Amendme nt purposes, and the Constit ution does not insulate their communications from employ er discipline.” Id. at 421. This is true even w hen such speec h reg ards a

matter of public c oncer

n. Huth v. Haslun , 598 F.3d 70, 74 ( 2d Cir. 2010). I n W e int ra ub v . B oa rd

of E du c ati on of t

he City Sc ho ol Dis tri c t of

theCity of N e w York, 593 F .3 d 1 96 (2 d Ci r. 20 10 ), a pu bli c te a c he r fi le d a

g ri e va nc e wi th h is unio n r e pr e se ntativ e in r e sp on se to the alleg edly inadequate discipline imposed on a student who had throw n a book at him during class on two occ asions. Id. at 198–99. This Cou rt n o ted that, under Ga rc e tti , “[t] he objec tive inquiry into whether a publi c employ ee spoke ‘pursua nt to’ his or her officia l duties is ‘a prac tical one.’” Id. a t 20 2. We h e ld t hat “ un de r t

he F ir st A me ndme nt, sp e e c h c an b e ‘p ur su ant to’ a pu bli c employ ee’ s officia l job duties even though it is not requir ed by , or included in, the e mploy ee’ s job descr iption, or in response to a r equest by the employ er.” Id. at 203. The g rieva nce in that case “wa s ‘pursua nt to’ [t he plaintiff’ s] official duties beca use it was ‘pa

rt-and- parc el of his conc erns’ about his a bil ity to ‘ pr op e rl y

e xec ute his du tie s’ a s a pu bli c sc ho ol t e acher — n a me ly , to ma int a in classroom discipline.” Id. (c i t at i o no m i t t ed ) ( qu o t i n g W ill iam s v . D all

as In de pe nd e nt S c h. Di st. , 480 F.3d 689, 694 ( 5th Cir. 2007)). Ap ply ingthi s f ra me wo rk to A ne mon e ’s a

n d C a s a l e ’ s c on ta c ts w iththe Qu e e ns DA , w e e a sil y

c on c lud e that e ve n a ssumin g the ir sp e e c h to th e Que ens DA ’s of fi c e wa s o n a

ma tte r o f p ub lic

conce rn, it was cle arly

pursuant to their off

icial duties so as to fall squar ely within Ga rc etti

. An emone testified that as Direc tor of Secur ity at the MTA, he regularly interac ted with District Attorney s’ offic es and vie wed c ooperating with these office s as amonghis d u t i es. There is no question that Casale’s a nd Anemone’ s initi al contac ts wi th the Quee ns DA conc erningthe35

Ba uer/Plasser inve stigation we r e o f th is c hara cter

— that Anemone soug ht to involve the DA’s off ice in an offic ial inves t i gat i on being conducte d by the J I TF. Indeed, A nemone doe s not contend oth e rw ise bu t in st ead argue s th a t on c e he we nt “ ou tsi de the c ha in o f c omm and ” and pe rs ist e d in the se c on ta c ts a ft e r L a

pp tol d h im the inv e sti g a tio n w ou ld b e ha nd le d b y the OI G, his subsequent discussions with the Queens DAwer e prote cted. For the following rea sons, we disag ree . Whe n a g ov e rnme nt em

plo y e e c on c e de dly e ng a g e s in spe e c h pur su ant t o h is o ff ic ia l dutie s, the fa ct that he pe rsists in such spe ech afte r a supervisor has told him to stop does not, w ithout more, transfor m his speech into protec t ed s p ee ch made as a pr ivate citizen. Cf. Thompson v. District of Col um bia , 53 0 F .3 d 9 14 , 9 18 (D .C. Cir . 2 00 8) (“ [I ]t wo uld be inc on g ru ou s to int e rp re t Ga rc e tti , a

case conce rned with a llowing the g overnme nt to control its employ ees w ithin their jobs, as giving br oa de r p ro te c tio ns to d iso be die nt e mpl oy e e s w ho de c ide the y kn ow be tte r tha n the ir bo sse s h owto perf orm their duties.”) . L app, as A nemone’ s supervisor, wa s entrusted with ensuring that his official communications with investigating a g encie s like t h e Que ens DA’ s office wer e “a ccur ate, d e monstrate[d] sound judgme nt, and promote[d] the employ er’ s missi on.” Gar cet ti , 547 U.S. at 423. She thus had the authority to take cor

rec tive action with re g ard to such spe ech — a n authority

that did not evaporate s i mply beca use Ane mone def

ied her instructions to turn the Ba uer/Plasser inv e sti g a tio n o ve r t o th e OI G. Te lli ng ly , the re is no e vid e nc e in the re c or d that An e mon e e ve r t old th e Que e ns DA ’s of

fi c e tha t th e JI TF wa s o ff

the c a se , a

nd that he wa s a c tin g so le ly a s a pr ivate person. Indeed, by

his own testimony , Anemone c ontemplated the possibili ty that even a fter L app’s instruction, his deputies might work on the Bauer /Plasser matter in conjunc tion with the Queens DA

. I n s uc h c ir c ums tanc e s, An e mon e ’s c on ta c ts w iththe DAwe re c le arl y of fi c ia l, p art and

pa rc e l of hisBe cause we c onclude that both Ane mone’s and Ca sale’s c ommunications with the 11 Quee ns DA’s off

ice we re pur suant to their offic ial duties, we ne ed not dec ide whethe r Ane mone has standing to assert a

First Amendme nt claim on the theory that he wa s the subject of reta liation by

rea son of the alleg edly

protec ted spee ch of his subordinate , Casale. Se e Hu th , 598 F.3d at 75. 36 duties as MTA’s Dir ector of Secur ity . Acc ording ly , we c o n cl u d e t h at Anemone ’s and Casa le’s communications with the Quee ns DA’s off ice did not constitute protec ted spee ch. 11 C. Defendants’ Mt. He alt hy De fens e We will assume for the pur poses of thi s appea l that materia l issues of fac t exi st as to whether Anemone w as ac ting in an of ficial c apac ity

or as a private c itiz en whe n he spoke to New Y ork Times

re po rt e rs and te sti fi e d be fo re the Ne w Y or k St a te As se mbl y ’s Stand ingCom mit te e on Cor po ratio ns , Authorities, and C ommissi ons. Even assuming that Anemone spoke as a c itiz en on a matter of public conce rn in ea ch instance , we n ever theless conc lude that g iven the undisputed evide nce of An e mon e ’s ins ub or din a tio n a nd the MT A’ s ong oin g e ff

or ts to a dd re ss i t — e ff

or ts b e g inn ingwe ll befor e any alleg edly protec ted conduct on Anemone’ s part — any rea sonable jury would find that An e mon e wo uld have be e n te rm inate d e ve n a bs e nt a ny de sir e on the De fe nd ants ’ p art

to p un ish him in retaliation for

his alleg edly

pro t ec t ed s p ee ch. Se e Sc ott , 344 F.3d at 288. Accor dingly , the Def endants prope rly

wer e g rante d summary

judgme nt reg ardingAnemone’ s rema i n i n g claims of unlawful re taliation.

1. Anem one’s Insub ordination The re cord c ontains undisputed evidence of Ane mone’s insubordinati o n an d the re sulting tension b et we en An em o n e a n d h i s s u p er i o rs — t en s i o nt h at p re d at edt h e B au er / P l as s er i n v es t i gat ion, let alone the Ne w Yo r

k Time s ar t icle, and only

esca lated ther eaf

ter. F irst, there is uncontr overte d37

evidenc e of a

history of complaints re g ardingCasale — c omplaints that Anemone admittedly failed to investigate and, indee d, dismiss ed on the g round that “N ick wasn’ t hired to make f riends.” Anemone D ep. at 77. Ane mone’s fa ilure to respond to c omplaints with respect to his deputy ’s conduct in these past instances w as exace rbate d by his failure to dire ct Casale to c ooperate with the OI G investig ation, despite cle ar know ledg e that Casale was re fusing to provide the OI G with the information it sought. Se c on d, An e mon e ro uti ne ly di sre gardedth e chai n o f com man d. For ex amp le, L app explic itl y informed Ane mone in J anuar y 2 0 03 that “[s] he wa

nted to deter

mine the ave nues of investig ation that would be pursue d” in the future and that ther e would be “ drastic a ction” for non-complianc e. Id. at 47. Howeve r, despite this cl ea r di rec tive, Anemone ig nored he r express instruction to turn the B a ue r/ Pla sse r inv e sti g a tio n ov e r to the OI G. I ns te a d — and c on str uin g the re c or d in the lig ht m os t favor able to him — Anemone a t best acc eded to and then actively participated i n Casale’ s continued

c on ta c ts with the Qu e e ns DA ’s of fi c e wi tho ut L a

pp ’s kn ow le dg e : in

his ow n w or ds , A ne mon e “ tol d [L app] what Ithought she neede d to know and nothing more.” Id. at 392. Third, Anem o n e ei ther re cklessly misled or outrig ht lied to his superiors and the Que ens DA’s o f f ic e thr o u g h o u t M ar c h 2 0 0 3 , u n ti l h e w a s c o mp e ll e d to p r o v id e te s ti mo n y to th e OI G on Marc h 27, with reg ard to the e x istence of a confidential informant. L app, De llaverson, a nd Ry an,

as we ll as Daly from the OI G, each testi fied that Anemone told him or her persona lly that there was a conf idential informant providing information re g ardingthe B auer /Plasser inv e s tigation. Anemone does not seriously

dispute this testi mony , conce ding that he told L app and Dellave rson that there was a conf idential informant, and that he may have used the ter m with Ry an and D aly

as we ll. Anemone38

has since admitted that there was no c onfidential informa nt in the Ba

uer/Plasser inve stigation. He now claims these r efe renc es we re a “mistake” or alter

natively ref lected a belief that a

confide ntial informant — whe ther De llaverson, Tr imarchi, or pe rhaps someone else — actually exis ted. Howeve r, g iven these repe ated ref ere nces, in c onjunction with Anemone’s e vasive be havior in not dir e c tin g C asa le to c oo pe rate wi th t he OI G a nd his a dmi tte d atte mpt

to c re a te a

“ pa pe r t ra il” wi th Casale to cove r his trac ks, any rea sonable jury would nece ssarily conclude that, at best, Anemone was recklessly misleading his superiors and c o-worke rs throug hout the time in which the OI G was

a tte mpt ingto i nv e sti g a te the B a ue r/ Pla sse r a lle g a tio ns . The e vidence of Ane mone’s deception of Dellave rson i s particular ly telling. In Marc h 2003, Anemone a

nd Casale were “in [ Dellave rson’s] office

. . . talking about how can [he] help them delay the I nspec t o r General fr om bring ing Ca sale in for testimony

so they can g et the conf

idential informant, the CI , who’s in t he wind, to testify .” De llaverson De p. at 286. B ut as Anemone argues in his briefing to this C ourt, Dellave rson himself was this confide ntial informant. See Appellant’s Br . at 14. As Ane mone testified, “G ary Dellave rson was the key g uy .” Ane mone Dep. at 435. Of

course , it is a disputed issue of fac t whether Dellave rson indicated to Ane mone that the Ba uer/Plasser a lleg ations should be investi g ated, and we resolve that dis pute in favor of Ane mone for the pur

pose of this appe al. Neve rtheless, Ane mone’s undisputed re fer encingof a c onfidential informant to Dellave rson — while Dellave rson was him se lf the ke y , pu ta tiv e c on fi de nti a l in fo rm a nt,

a s in dic a te d in

An e mon e ’s bri efi ng to thi s Co ur t and in h is d e po sit ion

te sti mony

— w a s c le a rl y misleading

. As Anemone himself testified, eve nbe for e he spoke to the Times , he believe d his job wasUnlike the spee ch to the Times , there is no indication that Anemone’s A pril 11 12 te sti mony be fo re the Ne w Y or

k St a te As se mbl y ’s Sta

nd ingCom mit te e on

Cor po ra tio ns , Authorities, and Commissi ons, the only other potentially

protec ted spee ch at issue in this case , play ed any

role in the de cision to terminate Ane mone. 39 in jeopardy . The re cord is cle ar a nd undisputed that, in fact, Ane mone was r ight. Mt. He althy provides a defe nse wher e a g overnme nt e mploy er can show that, even assuming an improper, reta liatory m o t i v at i o n , it would have take n the same a dverse action ag ainst an employ ee in the absenc e of suc h motivation. Se e Sc ott , 34 4 F .3 d a t 28 8. We h a ve lit tle dif fi c ult y c on c lud inga s a

ma tt e r o f la w th a t t h e D e f e n d an ts in

th is c a s e e s ta

b li s h e d th e ir e n ti tl e me n t t o the Mt. Healthy defe nse. 2. Ane m one ’s Spe e c h t o t he Tim es This c onclusion is not altere d by the fa ct that Dellave rson has a cknowledg ed that the Times

art ic le a ff e c te d h is d e c isi on

to t e rm inate An e mon e . I mpo rt antl y , D e llave rs on wa s v e ry sp e c if ic in 12 his ex planation of whyhe dee med the Tim es story rele vant. Dellave rson, who play ed a sig nificant

ro le in An e mon e ’s e arl ie r, su c c e ssf ul c or ru pti on inv e sti g a tio ns , sp e c if ic a lly no te d th a t it

wa s b oth the per ceive d basele ssness of Ane mone’s cla ims that his corrup t i o n investigations were be ing obstructed a

nd the “co n n ection of those ba seless alleg ations to an asser tion that placed MTA customers at risk.” Del l av er s o n Dep. at 248. A s D e ll a v e r s o np h r a s e d h is c o n c e r

n , “ [A n e mo n e ] .

. . c ho se to m isr e pr esen t [ fact s] in a fa lla c iou s f

a sh ion to t he re po rt e rs in o rd e r t o ma ke thi s

connec tion that the org anization . . . was not adequately secur ing itself f

or its customers.” Id. at 260. On this recor d, the Def

endants may

well hav e es t ab l i shed their e ntitlement to a Picke ring defe nse with respe ct to Anemone’ s remar ks to the Times . O nc e An e mon e demons tr a te d th a t hi s40

speec h to the Times was a motivating fa ctor be hind at le ast one of the adver se employ ment actions he suff ere d – namely , his termination – the Def endants, to make out a P ic k ering d ef en s e, wer e require d to demonstrate that “ (1) [their] prediction of di sruption [from the speec h was] rea sonable; (2) the pote ntial disruptiveness [was] enoug h to outweig h the value of the s peec h; and (3) [they ] t ook action ag ainst [Anemone] based on this disrupti on and not in reta liation for the spee ch.” Loc ur to v. Giuliani , 4 4 7 F. 3 d 1 5 9 , 1 7 2

– 7 3 (2 d C i r. 2 0 0 6 ) ( qu o t i n g Jeffries v. H arleston , 52 F.3d 9, 13 (2d Cir. 1995)). Wit h reg ard to the pot ential for disruption emanating f rom Anemone ’s re marks, Ane mone himself rec og nized the MTA’s leg itimate c oncer ns reg arding public disclosure of se curity matters wh e n e xpla ini ngwh y , a s a general ma tte r, he ne e de d th e a pp ro va l of

L a pp to s pe a k to the pr e ss. Thus , he a c kn ow le dg e d “ a c on c e rn [wit hin the MT A] th a t se c ur ity

iss ue s sh ou ldn ’t

be pu bli c knowledg e or our

attempt s t o mitigate those secur ity conce rns shouldn’t be publicly broadc ast.” Anemone D ep. at 18. As f or the F irst Amendment value of Anemone’ s secur ity -re lated spee ch, any weig ht we mig ht ordinarily attach to such speec h in othe r circ umstances is dimi nished here by the fac t that Anemone’ s claims that his investigation wa s impeded ar e co n clus ory , and belied by the

re c or d, whi ch sh ow s th a t a uth or ity ov e r t he B a ue r/ Pla sse r i nv e sti g a tio n w a s me re ly tr ans fe rr e d to the OI G. Fur

ther, Ane mone’s conne ction of his obstruction alleg ations to terror ism concer ns, the most incendiar

y aspec t of hi s comments to the Times , is without factual support. See A nemone , 2008 WL 1956284, at *14. And per haps most imp o rt an t l y , Anemone’s status as the top-leve l MTA of fi c ia l w ithre sp e c t to secur ity iss ue s, inc lud ingsa fe g ua rd ingtr ans it r ide rs fr om t e rr or ist thr e a ts, weig hs heavily

ag ainst him in t he Picke ring balanc e. See McEv oy v. Spe ncer , 124 F.3d 92, 103 ( 2d41

Cir. 1997) (“[W] here the employ ee holds a n extremely

confi d en t i al or hig hly

place d advisory p o s i t i o n , it would be unlikely if the Picke ring

balanc e we re to be struck in his favor . The tremendous disruption to t h e p u b l ic workpla ce likely to result from the c ritical spee ch of suc h an employ ee w o u l d i n most cases outwe igh a ny First Amendme nt interests possessed by that

e mpl oy e e .” ); see also Rank in v. Mc Pherson , 483 U.S. 378, 390 (1987) (“ The burde n of ca ution

e mpl oy e e s bea

r wit h re sp e c t to the wo rd s th e y sp e a k w ill va

ry wi th t he e xten t of

a uth or ity and pu bli c

acc ountability

the employ ee’ s role enta ils.”). All this said, we need not r esolve whether the Def endants established their entitlement to a Picke ring defe nse on the re cord he re, be cause we conclude that the clea rly disruptive char acte r of Anemone’ s speec h to the Times provides y et furthe r support for our dete rmination that a Mt. Healthy defe nse has be en amply

made out. Unde r Mt. Hea l t hy , evidenc e of the disruptive impact of po te nti a lly

pr ote c te d s pe e c h is re le va nt t o th e e x ten t that it

se rv e s a s an a dd iti on a l, p e rm iss ibl e

re a s o n f o r w h i c h t h e g o v e r

n m e n t c o u l d h a v e t a k e n an a d v e r s e e mp l o y m e n t a c t i o n a g a ins t a g overnme nt employ ee. Thus, as noted pre viously , “althoug h the lang uag e in Mt. Healthy re fe rs to th e p la in ti f

f ’ s [p r o te c te d ] conduct , the Court’s ana ly sis, properly understood, attempts to weig h the imp a c t of the de fe nd ant’ s impermissible reason on the def endant’ s decision t o act.” Gree nwich C i t i z ens Comm. , 7 7 F .3 d at 32 ; se e als o Sc ott , 344 F.3d at 288 (stating that in establishing a Mt

. Healthy defe nse, the de fenda

nt must “show it would have take n exactly the same a ction absent the improper motive ” (empha sis a dded))

. The rele vant question then, with respe ct to Anemone’ s speec h to the Times , is not whether he would have suf fer ed ter mination absent the spee ch itself, but rather whether “eve n without the improper motivation the alleg ed re taliatory action would have occur

red.”42

Sc ott , 344 F.3d at 287–88. We conclude that even a ssuming the De fenda nts here a cted partly on the basis of an improper reta liatory motive e manating from Anemone’ s speec h to the Times — a g ener ous assumption, even viewing the rec ord in the light most favora ble to Anemone — a

ny rea sonable jury

would deter

mine that A ne mon e wo uld

have su ff

e re d te rm inatio n a

bs ent a ny su c h mo tiv e . Co ns ide ri ngbo th An e mon e ’s no n- sp e e c h

- r e l a t e d m i s c o n du c t, b e g inn ingwi th h is s up e ri or s’ ini tia l di ssatis fa c tio n w ith his ability to control his de puty Casale and extending to his pattern of insubordination and de ception from F ebrua

ry throug h Marc h 2003, and the disruptive c hara cter of his speec h to the Times , th ere is s imp ly no qu e sti on

of ma te ri a l fa c t tha t Ane mon e wo uld have be e n s us pe nd e d a nd te rm inate d in any event. Finally , while the close proxi mity of the Interim Report to the Times interview mig ht ordinarily g ive rise to an inf

ere nce that an im permissible motive prompted bot h the i ssuance of the Report and Ane mone’s subseque nt discipline, we agr ee with the di strict court that the timing here ref lected instea d the steady

acc umulation of misconduct on Anemone’ s p a r t – mi s c onduct prompting the ultimate conclusion t h at s uspending and then ter minating him was ne cessa ry . As discussed

a bo ve , th e fu ll e xten t of

An e mon e ’s mis c on du c t on ly be c a me c le ar at th e ve ry e nd of Ma rc h, wi th his and Ca sa le ’s de po sit ion s b e fo re the OI G rev e a lin g the e xten t to wh ic h th e y ha d f a ile d to

c oo pe rate in t

he B a ue r/ Pla sse r i nv e sti g a tio n. Th e dis ru pti ve dim e ns ion

to h is Times comments then provided e ven further permissible and non-re taliatory rea sons to discipli ne him. Ultimately , we f ind

no ma te ri a l qu e sti on

of fa c t as to whe the r the De fe nd ants in thi s ca se wo uld have iss ue d th e I nte ri m Report, place d Anemone on a dminist rative le ave a nd subsequently

terminated him in the abse nceWe a ssume wi tho ut d e c idi ngtha t th e I nte ri m Re po rt

c on sti tut e d a

n a dv e rs e 13 e mpl oy me nt a c tio n. Withre g ard to h is s us pe ns ion

and su bs e qu e nt t e rm inatio n, An e mon e a sse rt s in his brief to this Court that “[ t] he district cour t erre d by conflating the MTA ’s adve rse a cts of ‘t e rm inatio n’ and

‘s us pe ns ion .’ ” Ap pe lla

nt’ s B r. a t 53 . We fi nd

that th e un dis pu te d e vid e nc e in the re c or d e sta

bli sh e s D e fe nd ants ’ Mt. Healthy defe nse for

both instances of a lleg edly reta liatory a dv e rs e e mpl oy

me nt a c tio ns . Anemone a lso asserts that the Apr il 18 letter sent by Sansverie to Ka likow conce rning 14 An e mon e ’s c on du c t in

fo rm ingthe CTA B wa s a se pa ra te a dv e rs e e mpl oy

me nt a c tio n s uf

fe re d in re ta liatio n f

or pr ote c te d c on du c t. It is c le ar, ho we ve r, that th is l e tte r i s n ot i tse lf su ff ic ie nt t o constitute an adve rse e mploy ment action. This Circuit has bee n cog nizant of the fac t that “adve rse e mploy

ment actions” c an take a wide va riety of for ms, see Zelnik v. Fashion Inst. of Tech. , 464 F.3d 217, 227 ( 2d Cir. 2006), althoug h we have noted that “ only reta liatory

conduct that would deter

a similarly

situated individual of ordinary firmness fr om exercising his or he r constitutional rights constitutes an a dverse action,” id. at 2 2 5 (q u o t i n g W ashington v. County of Rock land , 373 F.3d 310, 320 ( 2d Cir. 2004). Whil e the standa rd set out is broad, howe ver, no rea sonable jury

could find that the Apr il 18 letter sent by Sansverie c onstitut es such a n action. The letter included no propose d disciplinary measure but instead simply repor ted information g ather ed by

Sansverie’ s office in connec tion with his duties as the MTA’ s I nspector G ener al, a po sit ion lim ite d, a s th e dis tr ic t c ourt pu t it in t he ini tia l de c isi on

iss ue d in thi s c a se , “ to investigating a

buse and r ecommendingreme dial action and [which] does not contemplate a ny role for him in adjudicating a

n employ ee’ s employ

ment status with the MTA.” Anemone , 4 10 F. Sup p. 2d a t 27 0; se e als o N.Y. Pub. Auth. L aw § 1279( 4). F urthermor e, ther e is no indication that the April 18 letter w as eve n considere d in the subsequent dec ision to t erminate the alre ady suspended Ane mone. Under these c ircumstance s, we c annot conc lude that this letter, eve n assuming it wa s sent in retaliation for protec ted spee ch, constituted an a dverse employ ment action. 43 of any potentially

reta liatory

intent arising out of protec ted spee ch. The district cour t theref ore 13 proper ly g rante d summary

judgme nt to the Defe ndants pursuant to Mt. Healthy

. 14 I I I . Re mai n i n g Cl a i ms Wit h respe ct to Plaintiff’ s proce dural due proce ss claims, in Se ga l v . Ci ty

of N e w York, 459 F.3d 207 ( 2d Cir. 2006), we h el d t h at “in the c ontext of an at-will gove rnment employ ee, a

rea sonably

prompt, post-termination name- clea ring hear ing satisfies consti t utional due proc ess as long a s the proce dures aff

orded at such a

hear ing a re suf ficient to protec t the employ ee’ s reputational44

and prof essional intere sts. The ava ilability of such a hear ing . . . def

ea t s [ p laintiff’s] stigma-plus clai m s . ” Id. a t 21 8. An

Ar tic le 78 pr oc e e din g pr ov ide s th e re qu isi te po st- de pr ivatio n p ro c e ss — even if Anemone failed to pursue it. See , e.g ., Giglio v. Dunn , 732 F.2d 1133, 1135 ( 2d Cir. 1984). An em o n e co n ce d es h i s ar gu m en t t o t h e c o n t ra ry re qu i re s o v er tu rn i n g Segal , w hic h a pa ne l of thi s Court c ann ot d o. Thus , w e a ff irm th e di str ic t c ourt ’s dis mis sa l of his “ sti g ma -p lus ” du e pr oc e ss

c la ims

. Wit h respe ct to Anemone’ s conspirac y claim, havingfound that none of the individual Def endants in this case violated Plaintiff’s constitutional rig hts, w e need not de cide whe ther they can pr op e rl y be c ha rg e d w ithc on sp ir ing to vio la te the se ri g hts un de r § 1983

. As a re su lt, we do no t pa ss on this question. CO NC LU SION For all of t he foreg oing rea sons, the j udg ment of the district cour t is therefor e AF F IR M ED

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