15-3539-cv 

Zehner v. Jordan-Elbridge Bd. of Educ., et al.

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR 

AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A 

SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 18th day of November, two thousand sixteen. 

PRESENT: 

JOHN M. WALKER, JR., 

PETER W. HALL, 

DENNY CHIN, 

 Circuit Judges. 

 

_____________________________________

DAVID ZEHNER, 

 Plaintiff-Appellant, 

 v. 15-3539-cv 

 

JORDAN-ELBRIDGE BOARD OF EDUCATION, JORDAN-ELBRIDGE CENTRAL SCHOOL DISTRICT,

MARY ALLEY, DIANA FOOTE, JEANNE PIEKLIK, CONNIE DRAKE, PENNY FEENEY, LAWRENCE 

ZACHER, DANNY LOUIS MEVEC, JAMES FROIO, 

 

Defendants-Appellees, 

WILLIAM SPECK, 

 Defendant. 

_____________________________________ 

For Appellant: STEPHEN CIOTOLI, Esq., O'Hara, O'Connell 

& Ciotoli, Fayetteville, NY. 
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For Appellees: CHARLES C. SPAGNOLI, The Law Firm of 

Frank W. Miller, East Syracuse, NY (for 

Jordan-Elbridge Board of Education, 

Jordan-Elbridge Central School District, 

Mary Alley, Diana Foote, Jeanne Pieklik, 

Connie Drake, Penny Feeney, James Froio), 

Thomas J. Mortati, Esq., Burke, Scolamiero, 

Mortati & Hurd, LLP, Albany, NY (for 

Lawrence Zacher), Danny Louis Mevec, 

Esq., (pro se), Mevec Law Firm, PLLC, 

 Syracuse, NY. 

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

New York (Mordue, J.). 

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

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

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

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

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

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

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

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

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

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

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

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

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

Zehner had not demonstrated he had engaged in any protected associational activities. On 
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appeal, Zehner claims that genuine issues of disputed material fact exist to preclude summary 

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

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

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

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

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

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

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

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

A. Collateral Estoppel 

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

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

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

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

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

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

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

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

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

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

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

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

the burden of proof can render the issues in two different proceedings non-identical, and thereby 
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make collateral estoppel inappropriate.”). For substantially the same reasons as articulated by 

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

B. First Amendment Retaliation Claims 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2006) (internal quotation marks omitted). Causation can be demonstrated “indirectly by showing 
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that the protected activity was followed by adverse treatment in employment, or directly by 

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

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

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

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

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

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

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

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

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

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

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

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

summary judgment on the element of causation is inappropriate. 

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

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

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

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

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

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

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

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

that state action taken on the basis of both valid and invalid motivations is not constitutionally 
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tainted by the invalid motive if the action would in any event have been taken on the 

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

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

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

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

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

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

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

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

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

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

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

Zehner.1

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

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

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

procedures for various issues. 

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

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

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

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

 

1 The Board attempts to rely on affidavits of Board members to support its defense that it would have taken the same 

actions regardless of Zehner’s protected conduct. Evaluating the credibility of such testimony, however, is an 

inappropriate consideration for a court on summary judgment. See Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 

1997) (“Credibility assessments, choices between conflicting versions of the events, and the weighing of evidence 

are matters for the jury, not for the court on a motion for summary judgment.”).
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complaints against Zehner until approximately seven months after the issuance of these two 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

potentially interfere with or disrupt the government's activities” in a manner outweighing 
8 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in favor of defendants was improper. 
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C. New York Education Law § 3028-d Retaliation Claim 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

with this decision. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk