UNITED STATES COURT OF APPEALS

1 FOR THE SECOND CIRCUIT 2 3

_______________ 4 5 August Term, 2001 6 7 (Argued March 7, 2002 Decided January 17, 2003) 8 9 Docket No. 01-7729 10 11

_______________ 12 13 HOWARD E. MANDELL, 14 15 Plaintiff-Appellant, 16 17 v. 18 19 THE COUNTY OF SUFFOLK and JOHN GALLAGHER, Police Commissioner, 20 21 Defendants-Appellees

. 22 23

_______________ 24 25 Before: 26 CARDAMONE, F.I. PARKER, and B.D. PARKER, Jr., 27 Circuit Judges

. 28 29

_______________ 30 31 Plaintiff Howard E. Mandell appeals from a judgment filed 32 June 7, 2001 in the United States District Court for the Eastern 33 District of New York (Mishler, J.), dismissing his claims of 34 religious discrimination and First Amendment retaliation and 35 granting defendants Suffolk County and Police Commissioner John 36 Gallagher summary judgment pursuant to Fed. R. Civ. P. 56(c). 37 38 Affirmed in part, vacated in part, and remanded. 39 40

_______________ 41 42 ALAN POLSKY, Bohemia, New York, for Plaintiff-Appellant

. 43 44 DIANE L. BECKMANN, Assistant County Attorney, Hauppauge, New York 45 (Robert J. Cimino, Suffolk County Attorney, Hauppauge, New 46 York, of counsel), for Defendants-Appellees

. 47 48

_______________ 492

CARDAMONE, Circuit Judge: 1 This is an appeal in an employment discrimination case. 2 There is a nursery rhyme that teaches "sticks and stones may 3 break my bones, but names will never hurt me." Such is a lesson 4 particularly doubtful in the workplace, as illustrated by this 5 case, because alleged epithets and demeaning invective directed 6 at a plaintiff by his or her superiors or co-workers can, if 7 believed by a factfinder, subject an employer to legal liability 8 for discrimination. 9 Plaintiff Howard E. Mandell, a practicing Jew and a now10 retired employee of the Suffolk County Police Department (Suffolk 11 County Police or the department), instituted the instant action 12 against defendants, the County of Suffolk and John Gallagher, its 13 police commissioner, individually and in his official capacity, 14 in the United States District Court for the Eastern District of 15 New York (Mishler, J.). 16 Adverse employment actions were taken against him, plaintiff 17 contends, because of his religion, and also in retaliation for 18 his June 1987 testimony before the Suffolk County Legislature's 19 Public Safety Committee and for his 1992 interview with Newsday, 20 the Long Island daily newspaper. Accordingly, the complaint 21 alleges religious discrimination in violation of Title VII of the 22 Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and First 23 Amendment retaliation in violation of 42 U.S.C. § 1983. It also 24 asserts claims under New York State's Human Rights Law, N.Y. 253

Exec. Law § 296, and the New York State Constitution, Article 1, 1 § 8. 2
BACKGROUND 3
I Facts 4
A. Plaintiff's Allegations of Pro-Catholic and 5 Anti-Jewish Bias Within the Suffolk County Police Department 6 7 Because we are reviewing a dismissal of the complaint at the 8 summary judgment stage, we view the facts in the light most 9 favorable to plaintiff and resolve all factual disputes in 10 plaintiff's favor. SeeFed. R. Civ. P. 56(c). Plaintiff was 11 employed by the Suffolk County Police for over 30 years, retiring 12 with the rank of deputy inspector in 2001. He joined the 13 department as a police officer in 1969 and attained the rank of 14 captain in 1988, through a series of promotions based on civil 15 service examinations. Mandell asserts that throughout his police 16 career he faced a pro-Christian and, more specifically, pro17 Irish-Catholic bias. Further, he contends anti-Semitism for a 18 long time has been a part of the department culture. He has 19 repeatedly been a target of anti-Semitic remarks and taunting, 20 such as being called "that Jew" and "Jewboy" and being told that 21 all Jews stick together, and was subjected to insulting and 22 demeaning conduct by fellow officers. He relates that on one 23 occasion, for example, another officer tossed a dime on the floor 24 before him to see if he would stoop down to pick it up. 25 Plaintiff claims also to have heard virulent anti-Semitic remarks 26 directed at other Jews, such as "f***ing Jews" and "f***ing Jew 274

lawyer." Although these overt expressions of anti-Semitism in 1 his presence virtually ceased in 1989 upon his promotion to 2 deputy inspector, he attributes this to his rank, not to a shift 3 in the department attitude toward him. 4 Rabbi Jeffrey Wartenberg, a Suffolk County police chaplain, 5 supported plaintiff's allegations, stating in an affidavit that 6 during his 20 years with the department he had heard many Jewish 7 officers complain about the disparaging remarks made against 8 their religion. Based on his experience, Rabbi Wartenberg 9 concluded that "anti-Semitism is a way of life within the 10 Department" and that Jewish officers had been held back in their 11 careers by superiors with negative feelings about them. He said 12 his complaints to every police commissioner, including defendant 13 Gallagher, did not result in any corrective action, and the 14 Suffolk County Police continues to favor Catholics, while Jewish 15 officers are only promoted in the rare cases where merit is the 16 sole criterion. 17
B. Plaintiff's Career Before 1997 and His Public 18 Criticism of the Department 19 20 In June 1987, when he was a police lieutenant, Mandell 21 testified before the Suffolk County Legislature's Public Safety 22 Committee. His testimony described the department as 23 insufficiently proactive in fighting organized crime, resistant 24 to change, and more focused on protecting its internal 25 bureaucracy than on protecting the public. He also set out his 26 view that the "old-boy network" within the department covered up 275

officers' misconduct, including criminal activity, and that 1 racism and anti-Semitism were systemic. On the following day, 2 plaintiff's photograph and an excerpt from this testimony 3 appeared on the front page of Newsdayunder the headline, 4 "Suffolk Cop Charges: 'They Look Out For Their Own.'" 5 Apparently members of the department were offended because 6 in January 1988 plaintiff was expelled from the Suffolk County 7 Patrolmen's Benevolent Association for having "branded the entire 8 department as racist and anti-semites." Plaintiff says his 9 expulsion was another manifestation of the general hostility 10 toward him, triggered by his testimony, that persisted in the 11 department for years. 12 Later in 1988 Mandell was promoted from lieutenant to 13 captain. This promotion, like those before it, was not 14 discretionary to the commissioner, but based on a civil service 15 examination, subject to the commissioner's bypass. As part of 16 the promotion procedure, Mandell's then-supervisor Inspector John 17 J. Stewart wrote an evaluation that gave a generally positive 18 assessment of plaintiff's work as a police officer, describing 19 him as an "acceptable candidate for promotion to the rank of 20 Captain." In the evaluation Stewart also stated that plaintiff 21 was "a somewhat controversial individual" and complained that he 22 (Stewart) had spent too much time on issues relating to 23 plaintiff, the media, and internal investigations. He wrote, 24 specifically underlining the second clause, 256 While I do not consider that the attitude 1 projected [by plaintiff] should necessarily 2 affect [plaintiff's] suitability for 3 promotion [to captain], I do feel that his 4 attitude should be taken into account when 5 placing him in any future assignment

. 6 7 This evaluation was placed in plaintiff's personnel file. 8 A year later plaintiff was promoted to the rank of deputy 9 inspector. This promotion was distinct from Mandell's preceding 10 promotions because all promotions beyond the rank of a captain 11 were made at the discretion of the police commissioner, who at 12 that time was Daniel Guido. Unlike the commissioners before and 13 after him, Commissioner Guido was not from Suffolk County; he was 14 an outsider and a known reformer. Mandell attributes his 15 promotion to Commissioner Guido's effort to institute a merit16 based promotion policy and maintains that after Commissioner 17 Guido's resignation, the department reverted to its "old-boy 18 network's" practices of nepotism and cronyism. The 1989 19 promotion to deputy inspector was not only plaintiff's sole 20 discretionary promotion; it was also his last. 21 Several years later, in the summer of 1992, at his 22 supervisor's request, Mandell gave an interview to Newsdayfor 23 its series of articles entitled "Black 'n' Blue in Wyandanch: 24 Summer in the 1st Precinct." The series focused on the operation 25 of the predominantly white police force in a predominantly black 26 community of Wyandanch. The second article quoted plaintiff as 27 saying that the Suffolk County Police had difficulty recruiting 28 black officers because the black community viewed police officers 297

as oppressors. The article reported, in addition, plaintiff's 1 comment that he had to remove some officers with racist attitudes 2 from covering Wyandanch despite his efforts to screen officers 3 for racist attitudes before assigning them there. 4 After the publication of the Newsdayarticle, Mandell's co5 workers' hostility toward him escalated. For example, other 6 police officers would not talk to him unless they had to, and two 7 police chiefs expressly warned him that his comments in Newsday 8 might harm his chances for advancement. Within days of 9 publication, Chief Edwin Michel told him that if he wanted to be 10 a chief he would have to learn to keep his mouth shut, and Chief 11 Gerald Marcoe advised that his career might be adversely affected 12 because he was "still carrying the baggage from having 13 testified," referring to the 1987 Public Safety Committee 14 testimony. In January 1993, five months after the interview, 15 Mandell was transferred from the executive officer position he 16 held in the First Precinct to a post of commanding officer in the 17 Staff Services Bureau. Plaintiff viewed this transfer as 18 punishment because his superiors knew he preferred to work in the 19 more prestigious patrol division rather than in the desk job at 20 Staff Services. 21
C. Plaintiff's Career During Gallagher's 22 Tenure as Commissioner 23 24 In January 1997 defendant John Gallagher became police 25 commissioner of Suffolk County. The crux of plaintiff's 26 complaint is that Gallagher, who is Irish-Catholic, promoted a 278

pro-Catholic mentality in the department. At official police 1 functions Gallagher made statements like "[W]e are all good 2 Christians," and, "[W]e can all work well together because we all 3 went to good Christian schools, were taught by the Christian 4 Brothers and learned good Christian values." Defendants respond 5 that Gallagher's statements were innocuous and taken out of 6
context. 7 During Gallagher's tenure as commissioner, Shomrim, a 8 fraternal organization for Jewish police officers that Mandell 9 co-founded, saw its membership decrease dramatically; the 10 organization was defunct when plaintiff retired. Plaintiff 11 contends that this occurred under Gallagher's administration 12 because visibility as a Jew in the department was seen as a 13 liability. 14 On four separate occasions between 1997 and 1999, Gallagher 15 declined to promote plaintiff to the rank of an inspector: on 16 August 4, 1997 (one position open); on September 7, 1998 (two 17 positions open); on August 30, 1999 (two positions open); and on 18 November 7, 1999 (one position open). These promotions went to 19 Catholic officers instead. 20 When he was passed over the first time in August 1997 21 Mandell complained to Gallagher about discrimination in the 22 department. Defendant said he would institute a formal internal 23 affairs investigation. Dissatisfied with this response, 24 plaintiff wrote a letter on August 25, 1997 to Suffolk County 25 Legislator Maxine Postal. In the letter he criticized 269

Gallagher's decision to forward his discrimination complaint to 1 Internal Affairs, and labeled defendant as "either the most 2 pathetically inept Commissioner that we have ever had or the most 3 devious." It is sharply contested whether Gallagher saw a copy 4 of this letter prior to the instant litigation. 5 In November 1999 Gallagher involuntarily transferred 6 plaintiff, who was then a commanding officer -- a top-ranking and 7 decision-making position in a division -- to the more subordinate 8 position of executive officer. This transfer was perceived as a 9 demotion not only by plaintiff but also by his fellow officers 10 who commented that the transfer was not favorable, not in 11 anticipation of a promotion, and that it was plain the department 12 was trying to force plaintiff to resign. 13 II Proceedings Below 14 The instant action was commenced in March 1999, with an 15 amended complaint filed in February 2000. In the amended 16 complaint Mandell contends that the four denials of promotion to 17 inspector in 1997-1999 and the 1999 transfer to executive officer 18 were motivated in part by religious discrimination and in part by 19 retaliation for his public criticism of the department. At the 20 close of discovery, defendants moved for summary judgment on a 21 number of different grounds. Concluding that plaintiff had 22 failed to establish a prima faciecase of discrimination or to 23 adduce evidence of a causal connection between the two instances 24 of speech and the adverse employment actions at issue, the 25 district court granted defendants summary judgment on all 2610

plaintiff's claims. This appeal ensued. We affirm, in part, and 1 vacate and remand, in part. 2
DISCUSSION 3 I Standard of Review 4 A district court's grant of summary judgment is reviewed de 5

novo. Graham v. Long Island R.R. , 230 F.3d 34, 38 (2d Cir. 6 2000). A district court may award summary judgment only if, 7 after drawing all reasonable inferences and resolving all 8 ambiguities in the non-moving party's favor (here plaintiff), it 9 concludes that no genuine issue of material fact exists and the 10 moving party is entitled to a judgment as a matter of law. Fed. 11 R. Civ. P. 56(c). To overcome such a motion, the non-moving 12 party must offer sufficient proof to allow a reasonable 13 factfinder to decide in its favor. In discrimination cases where 14 state of mind is at issue, we affirm a grant of summary judgment 15 in favor of an employer sparingly because "careful scrutiny of 16 the factual allegations may reveal circumstantial evidence to 17 support the required inference of discrimination." Graham, 230 18 F.3d at 38. 19 II Title VII and State Human Rights Law 20 Claims Against Gallagher 21 22 Although the district court ruled in favor of defendant 23 Gallagher on other grounds, the district court's dismissal of 24 plaintiff's Title VII claims against Gallagher in his personal 25 capacity must be affirmed because under Title VII individual 26 supervisors are not subject to liability. See Wrighten v. 2711

Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam); Tomka v. 1 Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); see also Shumway 2 v. United Parcel Serv., Inc. , 118 F.3d 60, 63 (2d Cir. 1997) 3 (noting that "an appellate court may affirm the judgment of the 4 district court on any ground appearing in the record"). 5 Individual liability is sometimes possible, however, under New 6 York's Human Rights Law. Gregory v. Daly, 243 F.3d 687, 689 n.1 7 (2d Cir. 2001); Tomka, 66 F.3d at 1317. Since the parties have 8 not briefed this issue, either in the district court or on 9 appeal, and because, as discussed below, we vacate the dismissal 10 of the state Human Rights Law claims against the county, we also 11 vacate the dismissal of those state claims against Gallagher, 12 without prejudice to his raising the issue of individual 13 liability on remand. 14 III Title VII and State Human Rights Law 15 Claims Against County 16 17 We analyze plaintiff's federal and state law discrimination 18 claims together since in other contexts we have applied federal 19 standards of proof to discrimination claims under the state Human 20 Rights Law. See Abdu-Brisson v. Delta Air Lines, Inc. , 239 F.3d 21 456, 466 (2d Cir.), cert. denied, 534 U.S. 993 (2001) (age 22 discrimination); Weinstock v. Columbia Univ. , 224 F.3d 33, 42 n.1 23 (2d Cir. 2000) (sex discrimination); Torres v. Pisano, 116 F.3d 24 625, 629 n.1 (2d Cir. 1997) (hostile work environment); Van Zant 25 v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996) 26 (hostile work environment and retaliation). As the parties do 2712

not contend that federal and state standards diverge, we will for 1 purposes of this opinion assume that the standards of proof 2 applicable to plaintiff's Title VII and Human Rights Law claims 3 are the same in all relevant respects. 4 A. Prima Facie Case 5 Mandell's religious discrimination claims are analyzed under 6 the burden-shifting framework of McDonnell Douglas Corp. v. 7
Green, 411 U.S. 792 (1973). See Meiri v. Dacon, 759 F.2d 989, 8 994 (2d Cir. 1985) (applying the McDonnell Douglasframework to a 9 religious discrimination claim). At the first stage of the 10 McDonnell Douglasanalysis, a plaintiff has the burden of 11 establishing a prima faciecase of discrimination by showing that 12 he or she: (1) is a member of a protected class; (2) was 13 qualified for the position at issue; (3) was denied the position; 14 and (4) that the circumstances of the adverse employment decision 15 give rise to an inference of discrimination. Howley v. Town of 16
Stratford, 217 F.3d 141, 150 (2d Cir. 2000); Rosen v. Thornburgh, 17 928 F.2d 528, 532 (2d Cir. 1991). Defendants do not contest the 18 first three elements, focusing instead on the fourth element, and 19 contending, as they did in the district court, that the 20 circumstances do not give rise to an inference of discrimination. 21 The burden of establishing a prima faciecase under 22 McDonnell Douglasis minimal. Howley, 217 F.3d at 150. In the 23 case at hand, plaintiff's evidence of discrimination falls into 24 three categories: (1) Gallagher's statements indicating his 25 preference for promotion of Christians or Catholics; (2) evidence 2613

of department culture tolerant of anti-Semitism; and (3) 1 promotion of Catholic officers on the four occasions at issue. 2
1. Gallagher's Comments. At an official police function 3 shortly after he became commissioner, Gallagher addressed members 4 of the department in a speech replete with references to 5 Christian values and Catholic education, including such comments 6 as the "all good Christians" remarks noted earlier. On another 7 occasion, the commissioner professed his belief in absolute papal 8 authority at a breakfast meeting with department members. From 9 these statements, a reasonable juror could infer that Gallagher 10 viewed Catholicism -- or, more broadly, Christianity -- as a 11 necessary part of a good police officer's make-up and that he 12 considered non-Christian officers to be lacking the right make13
up. 14 In his response, Gallagher declares that he mentioned 15 Christian schooling only in pointing out that Chief Monteith and 16 he had attended the same school run by the Christian Brothers 17 order, and the Pope's absolute authority, he said, was used as an 18 analogy to a police commissioner's prerogative to circumvent 19 hierarchical channels of communication and to work directly with 20 officers at the various level of the chain of command. At the 21 summary judgment stage, however, we must resolve all factual 22 disputes in plaintiff's favor. Accepting plaintiff's account of 23 Gallagher's comments as true, a reasonable juror could conclude 24 that these comments indicated Gallagher's pro-Christian or pro25 Catholic bias. 2614 The trial court rejected the proof regarding Gallagher's 1 preference for Catholics as insufficient to support a prima facie 2 case of religious discrimination, absent any proof of animus 3 directed specifically at Jews. We think this reasoning was 4 error. First, contrary to the district court's belief, plaintiff 5 did submit evidence of anti-Jewish animus, which we discuss in a 6 moment. Second, to establish a claim of religious 7 discrimination, plaintiff does not have to prove that defendants 8 discriminated solely against his religion. An employer 9 discriminating against any non-Catholic violates the anti10 discrimination laws no less than an employer discriminating only 11 against one discrete group, in this case, Jews. 12 2. Culture of Department. Anti-Semitic comments and 13 behavior have traditionally been part of the culture of the 14 Suffolk County Police Department. The facts section detailed the 15 epithets aimed at plaintiff and the department's tolerance for 16 anti-Semitic conduct, such as the coin toss mentioned earlier, 17 which was a reference to the demeaning ethnic stereotype that 18 Jews are "cheap." Although most of these examples of overt anti19 Semitism pre-date plaintiff's 1989 promotion to deputy inspector, 20 a reasonable juror could find this improved behavior reflects not 21 a change in attitude, but only greater caution by fellow officers 22 regarding their conduct in the presence of an officer who 23
outranked them. 24 Further support for plaintiff's allegations about the 25 department's culture bias is provided by the affidavit of Rabbi 2615

Wartenberg who served as the Suffolk County police chaplain for 1 20 years. Although his affidavit contains a number of conclusory 2 characterizations, Rabbi Wartenberg also avers that he had 3 communicated his concern about anti-Semitic attitudes within the 4 department to every commissioner with whom he had worked, 5 including Commissioner Gallagher. All responded by acknowledging 6 that anti-Semitism was a problem, but failed to take any concrete 7 action to remedy it. For instance, throughout his tenure as a 8 chaplain, Rabbi Wartenberg said he had never seen an official 9 statement issued by a commissioner condemning anti-Semitism, nor 10 had he ever heard of a police officer receiving punishment beyond 11 chastisement for anti-Semitic conduct. 12 This proof indicates that department leadership, including 13 Gallagher, knowingly tolerated anti-Semitic attitudes and 14 conduct. Interpreted in the light most favorable to plaintiff, 15 it suggests an anti-Jewish bias on defendants' part and therefore 16 further supports the assertion that Gallagher's decisions not to 17 promote plaintiff and to transfer him to a subordinate position 18 were motivated by an illegal animus. 19 3. Promotion of Catholic Officers. On four occasions 20 Gallagher passed over plaintiff for promotion to inspector in 21 favor of others. Of the six deputy inspectors promoted in 1997- 22 1999, five were concededly Catholic. Mandell admittedly does not 23 know the religion of the sixth deputy inspector though he 24 believes he is also Catholic. Defendants do not dispute the 25 religious backgrounds of the promoted deputy inspectors, 2616

declaring instead that such promotions are not proof of 1 discrimination. 2 A showing of disparate treatment -- that is, a showing that 3 the employer treated plaintiff "less favorably than a similarly 4 situated employee outside his protected group" -- is a recognized 5 method of raising an inference of discrimination for purposes of 6 making out a prima faciecase. Graham, 230 F.3d at 39. A 7 plaintiff relying on disparate treatment evidence "must show she 8 was similarly situated in all material respects to the 9 individuals with whom she seeks to compare herself." Id

. 10 Ordinarily, the question whether two employees are similarly 11 situated is a question of fact for the jury. In the instant 12 case, plaintiff has adduced enough evidence to support a finding 13 that the promoted officers and plaintiff were sufficiently 14 similarly situated to support an inference of discrimination. 15 Mandell and the promoted officers were all qualified and Mandell 16 had greater or comparable seniority, having spent more time in 17 rank and more time in the department than all but one officer of 18 those promoted ahead of him. 19 In contesting the significance of the promotions, defendants 20 first rely on Gallagher's statement that at the time of the 21 promotions he was not aware of the promoted officers' religious 22 backgrounds. Additionally, defendants assert that an inference 23 of discrimination is not warranted because on each of the four 24 occasions the pool of candidates included other deputy inspectors 25 with similar or greater seniority than plaintiff's, some of whom 2617

Gallagher knew to be Catholic and yet chose not to promote. Yet, 1 even were Gallagher's denials of knowledge to be believed, it 2 still remains true that in a predominantly Christian department, 3 Gallagher's decision to reject the one known Jewish candidate in 4 favor of a candidate of unknown religion, coupled with his pro5 Christian comments, could support an inference of discrimination. 6 In any event, we think the proof detailed in (1), (2), and (3) is 7 sufficient to satisfy plaintiff's minimal prima facieburden. 8
B. Defendants' Proffer of Legitimate Nondiscriminatory Reasons 9 Given that plaintiff has established a prima faciecase of 10 discrimination, we now turn to the remaining two stages of the 11 McDonnell Douglasanalysis. Under McDonnell Douglas, once 12 plaintiff establishes a prima faciecase, a presumption arises 13 that his employer unlawfully discriminated against him. Tex. 14 Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To 15 rebut this presumption, the employer must come forward with 16 admissible evidence of legitimate nondiscriminatory reasons for 17 its adverse actions toward plaintiff. See id

. 18 With respect to the August 1997 promotion, Gallagher's 19 deposition testimony provides sufficient evidence of legitimate 20 reasons for his decision not to promote plaintiff. Gallagher 21 testified that in evaluating candidates for the August 1997 22 promotion he relied heavily on the recommendations of police 23 chiefs and the deputy commissioner. Several of the chiefs as 24 well as precinct community leaders recommended the officer 25 ultimately promoted at that time, Deputy Inspector Hamann. In 2618

addition, Gallagher maintains that he chose Hamann because Hamann 1 was already working in the precinct where the vacancy existed, 2 and was therefore familiar with conditions there. 3 Gallagher further attributes his decision not to promote 4 plaintiff to the negative impression plaintiff made on him during 5 a 1997 interview. He states in vague terms that Mandell "did not 6 project the image . . . of someone who has a positive grasp" of 7 some unspecified "areas" of interest to Gallagher. While 8 defendant does not clarify what particular "image" he was 9 seeking, it appears that the negative impression stemmed at least 10 in part from plaintiff's reaction during the interview to 11 Gallagher's expressed preference for promoting an officer from 12 within the precinct. Plaintiff told Gallagher he considered this 13 approach unfair because it disadvantaged officers in support 14 services functions, a position Mandell then held. 15 Gallagher's testimony also provides evidence of 16 nondiscriminatory reasons for the post-1997 denials of promotion. 17 Gallagher explains that he chose not to promote Mandell on those 18 three occasions because of plaintiff's derogatory comments about 19 him in the letter sent to County Legislator Postal, which 20 plaintiff wrote after being passed over for the August 1997 21 promotion. The letter characterized Gallagher as either "inept" 22 or "devious," and it further labeled him a "modern day version of 23 Pontius Pilate" because plaintiff thought that by referring his 24 discrimination complaint to the Internal Affairs Bureau, 25 Gallagher washed his hands of the anti-Semitism problem in the 2619

department. Gallagher maintains that he received a copy of the 1 letter prior to the September 1998 round of promotions and was 2 influenced by its content, as well as by the negative impression 3 made on him by Mandell's 1997 interview. 4 Defendants do not articulate any basis for the 1999 transfer 5 from commanding officer to the more subordinate position of 6 executive officer. In fact, in their briefs in the district 7 court and here, defendants address the transfer claim primarily 8 by stating that officers other than plaintiff have also been 9 transferred from commanding officer positions to executive 10 officer positions. Without any evidence with respect to the 11 circumstances of these transfers, the fact they occurred is not 12 relevant to our analysis. Accordingly, defendants failed to 13 carry their burden of establishing legitimate nondiscriminatory 14 reasons for the demotion, and the dismissal of plaintiff's claim 15 of discriminatory transfer must be vacated. 16
C. Plaintiff's Ultimate Burden of Establishing Discrimination 17 Once the employer produces evidence of legitimate reasons 18 for its actions, the burden shifts back to the plaintiff to 19 prove, by a preponderance of the evidence, that the real reason 20 for the adverse employment decision was discrimination. Although 21 plaintiff is not required to show "that the employer's proffered 22 explanation is unworthy of credence," evidence of pretext may 23 help plaintiff carry his ultimate burden on this final stage of 24
the McDonnell Douglasanalysis. Burdine, 450 U.S. at 256. 2520 As noted above, defendants have established legitimate 1 reasons for the 1997-1999 denials of promotions but not for the 2 1999 transfer. Accordingly, our analysis on the final stage of 3
the McDonnell Douglasframework is limited to plaintiff's claims 4 of illegally denied promotions. 5 Mandell presented evidence suggesting that defendants' 6 reliance on plaintiff's letter to Legislator Postal as a reason 7 for denying plaintiff promotions is pretext. Legislator Postal 8 and her assistant, who handles Postal's correspondence, submitted 9 affidavits stating that they never showed plaintiff's letter to 10 anyone or copied it, and that their practice generally is to 11 treat all incoming correspondence as confidential. Plaintiff 12 similarly denies ever forwarding a copy of his letter to anyone. 13 From this proffer, a trier of fact could find, contrary to 14 defendants' assertions, that Gallagher did not see the letter 15 until the commencement of this law suit and that defendants may 16 therefore be using the letter as a pretext to cover up a 17 discriminatory motive. See Reeves v. Sanderson Plumbing Prods., 18
Inc., 530 U.S. 133, 147 (2000). 19 Further, even though plaintiff does not present evidence 20 directly contradicting defendants' remaining stated reasons for 21 not promoting him -- plaintiff's 1997 interview with Gallagher 22 and, with respect to the 1997 round of promotions, chiefs' 23 recommendations of Hamann and Hamann's greater knowledge of the 24 precinct -- this failure is not fatal to plaintiff's claims. We 25 have previously cautioned that an employer may not rely solely on 2621

wholly subjective and unarticulated standards as a basis for its 1 promotion decisions. Byrnie v. Town of Cromwell, Bd. Of Educ. , 2 243 F.3d 93, 104 (2d Cir. 2001). An employer's explanation of 3 its legitimate nondiscriminatory reasons must be "clear and 4 specific." Meiri, 759 F.2d at 997. Here, Gallagher's 5 explanation of the negative impact of the 1997 interview is 6 couched in vague and general terms since the "positive image" 7 that, in his view, plaintiff failed to project is not described 8 in any concrete terms. Given plaintiff's evidence of Gallagher's 9 pro-Christian statements at official police functions, a 10 reasonable factfinder could believe that the sought-after 11 "positive image" incorporated Christian religious affiliation and 12 that Gallagher refused to promote plaintiff because plaintiff did 13 not meet that requirement. Gallagher admittedly knew that 14 plaintiff was Jewish and therefore, even without knowing the 15 other candidates' religion, could have chosen to avoid plaintiff 16 as the one known non-Christian candidate. 17 Defendants are on more solid ground in relying on police 18 chiefs' recommendations of Hamann and on Hamann's prior knowledge 19 of the precinct as a basis for Gallagher's decision to promote 20 him rather than plaintiff in 1997. Plaintiff has not produced 21 any evidence of anti-Semitic comments or conduct by the five 22 chiefs who submitted recommendations to Gallagher. Contrary to 23 plaintiff's argument, his own and Rabbi Wartenberg's generalized 24 descriptions of pervasive anti-Semitism within the department are 25 not sufficient to support an inference that those five police 2622

chiefs' recommendations were in fact tainted by anti-Semitic 1 sentiment. But even here the ultimate decision to accept these 2 recommendations was Gallagher's. Because, as discussed above, 3 plaintiff has presented evidence indicating Gallagher's pro4 Christian bias, we cannot conclude that proof of the police 5 chiefs' recommendations entitles defendants to judgment as a 6
matter of law. 7 In sum, we think that based on the evidence submitted in 8 support of plaintiff's prima faciecase and on plaintiff's 9 evidence of pretext, a reasonable juror could find that 10 defendants' 1997-1999 decisions not to promote plaintiff to the 11 rank of inspector were motivated by religious discrimination. We 12 must therefore vacate the dismissal of plaintiff's claims of 13 discriminatory failure to promote under Title VII and the Human 14 Rights Law. 15 IV 42 U.S.C. § 1983: First Amendment Retaliation 16 Analysis turns to plaintiff's claim of First Amendment 17 retaliation under 42 U.S.C. § 1983. Mandell alleges that, by 18 failing to promote him to the rank of inspector in 1997-1999 and 19 by transferring him to the position of executive officer in 1999, 20 defendants illegally retaliated for his public criticism of the 21 department before the County's Public Safety Committee in 1987 22 and for his 1992 interview with Newsday. The district court 23 summarily rejected this claim for lack of proof of causal 24 connection between the speech and the alleged adverse employment 25 actions. On appeal, defendants additionally insist that 2623

plaintiff's speech does not enjoy constitutional protection, that 1 he suffered no adverse employment actions, and that he failed to 2 establish a basis for the County's liability under Monell v. 3 Department of Social Services, 436 U.S. 658 (1978). Further, 4 they maintain that Gallagher is entitled to qualified immunity. 5
A. Retaliation in General 6 Although a public employee "does not relinquish First 7 Amendment rights to comment on matters of public interest by 8 virtue of government employment," these rights are not absolute, 9 because the government, as an employer, has a legitimate interest 10 in regulating the speech of its employees to promote the 11 efficiency of its public services. Connick v. Myers, 461 U.S. 12 138, 140 (1983) (citing Pickering v. Bd. of Educ. , 391 U.S. 563, 13 568 (1968)). The extent of permissible government regulation of 14 speech under these circumstances is determined by balancing the 15 interest of the employee, in his role as a citizen, in commenting 16 on matters of public concern against the interest of the 17 government, in its role as an employer, in promoting the 18 efficiency of the services it performs through its employees. 19 Morris v. Lindau, 196 F.3d 102, 109-10 (2d Cir. 1999). 20 Before reaching this balancing test a court must be 21 satisfied that a plaintiff claiming First Amendment retaliation 22 has demonstrated that: (1) his speech addressed a matter of 23 public concern, (2) he suffered an adverse employment action, and 24 (3) a causal connection existed between the speech and the 25 adverse employment action, "so that it can be said that his 2624

speech was a motivating factor in the determination." Id. at 1 110; see also Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001) 2 (describing elements of First Amendment Retaliation claim). If 3 the plaintiff produces evidence of these three elements, the 4 government may nevertheless escape liability on either one of two 5 separate rationales. One way the government may prevail is by 6 demonstrating by a preponderance of the evidence that it would 7 have taken the same adverse action in the absence of the 8 protected speech. Morris, 196 F.3d at 110. Alternatively, the 9 government may show that plaintiff's speech was likely to disrupt 10 the government's activities, and the likely disruption was 11 "sufficient to outweigh the First Amendment value of plaintiff's 12 speech." Locurto, 264 F.3d at 166. If the government relies on 13 the latter rationale and the balance of interests indeed weighs 14 in the government's favor, plaintiff may still succeed by proving 15 that the adverse action was in fact motivated by retaliation 16 rather than by fear of disruption. Id

. 17
B. Retaliation in This Case 18 Applying these principles to Mandell's case, we find wholly 19 unpersuasive defendants' contention that plaintiff's 1987 Public 20 Safety Committee testimony did not enjoy a constitutionally 21 protected status because it was a disgruntled employee's 22 complaint about his own promotional opportunities. Such 23 characterization of Mandell's testimony finds no support in the 24 record. As a general rule, speech on "any matter of political, 25 social, or other concern to the community" is protected by the 2625

First Amendment. Connick, 461 U.S. at 146. Plaintiff's 1 testimony criticized the department's approach to fighting 2 organized crime, its resistence to change, and its systemic 3 racism and anti-Semitism. All these subjects are clearly matters 4 of public concern. 5 Similarly meritless is defendants' contention that plaintiff 6 suffered no adverse employment action. Adverse employment 7 actions include both refusals to promote and demotions. Morris, 8 196 F.3d at 110. It is undisputed that defendants refused to 9 promote plaintiff to the rank of an inspector, and that the 1999 10 transfer placed plaintiff in a position subordinate to the one he 11 had previously held. 12 Again, defendants maintain plaintiff failed to establish a 13 causal connection between his public criticism of the Suffolk 14 County Police and the adverse employment decisions. "Causation 15 can be established either indirectly by means of circumstantial 16 evidence, for example, by showing that the protected activity was 17 followed by adverse treatment in employment, or directly by 18 evidence of retaliatory animus." Id. at 110. We think Mandell 19 adduced sufficient direct evidence of retaliatory animus to 20 create a triable question of fact on this issue. Several reasons 21 lead us to this result. 22 The 1988 letter expelling plaintiff from the Suffolk County 23 PBA expressly stated that he was being removed for having 24 "branded the entire department as racist and anti-semites." This 25 expulsion shows that, at least during the months following 2626

Mandell's testimony, a substantial number of police officers 1 viewed the testimony as a betrayal of the department. An 2 evaluation placed in plaintiff's personnel file in May 1988 3 contained negative comments and recommendations plainly brought 4 on by that testimony. Specifically, Inspector Stewart wrote 5 negatively about plaintiff and although the inspector did not 6 recommend denial of plaintiff's next promotion -- the non7 discretionary promotion to the rank of a captain -- he did 8 emphasize that Mandell's "attitude should be taken into account 9 when placing him in any future assignment." Because this 10 evaluation was placed in plaintiff's file, it could have 11 reasonably impacted Mandell's career opportunities in the ensuing 12
years. 13 Further, during the days following the Newsdayinterview, 14 Chief Michel told plaintiff that he would have to learn to keep 15 his mouth shut, and Chief Marcoe told him that his career might 16 be adversely affected because of the "baggage" created by his 17 1987 testimony. The latter comment suggests that negative 18 attitudes towards Mandell caused by that testimony lingered for 19 at least five years. Because both Michel and Marcoe were among 20 those chiefs who recommended candidates other than plaintiff for 21 the 1997 promotion to inspector, a reasonable factfinder could 22 find their comments indicate a retaliatory animus that influenced 23 their decision not to recommend plaintiff. 24 Defendants urge that the substantial time lapse between 25 plaintiff's speech and the adverse employment actions precludes a 2627

finding of causation. They correctly point out that to provide 1 an independent basis for an inference of causation, temporal 2 proximity must be significantly greater (meaning that the time 3 lapse must be shorter than it is in this case). See, e.g., 4 Morris, 196 F.3d at 113-14 (holding that absent other evidence of 5 retaliatory motivation, no inference of causation follows from 6 fact of adverse action occurring two years after speech). It 7
should be noted that Morris, the case defendants primarily rely 8 on, was an employment termination case. It makes logical sense 9 that if an employer wishes to retaliate by firing an employee, he 10 is likely to do so soon after the event. In a failure to promote 11 case, however, the opportunities for retaliation do not 12 necessarily immediately present themselves. Be that as it may, 13 however, plaintiff here does not rely on temporal proximity as 14 affirmative evidence of causation. He offers instead direct 15 evidence of retaliatory animus discussed above. Further, some of 16 plaintiff's evidence -- namely, Inspector Stewart's evaluation 17 and Chief Marcoe's 1992 reference to the "baggage" of the 1987 18 testimony -- indicates that plaintiff's criticism of the Suffolk 19 County Police may have had a lasting effect on plaintiff's 20 career. In light of this evidence, we cannot conclude that the 21 time lapse, though admittedly lengthy, conclusively establishes 22 lack of causation. 23 Defendants also declare that an inference of causation is 24 not justified because Gallagher said he was not aware of 25 plaintiff's negative statements about the department until after 2628

the 1997 denial of promotion, and because plaintiff received one 1 discretionary promotion after his 1987 testimony. Yet, a trier 2 of fact does not have to believe Gallagher's denials of 3 knowledge, since in making his 1997 promotion decision Gallagher 4 consulted police chiefs who were aware of both the testimony and 5 the interview. Further, Gallagher's denials of knowledge, even 6 if truthful, are not dispositive because, as noted a moment ago, 7 Gallagher's choice in 1997 was based on recommendations of police 8 chiefs, two of whom had made statements indicative of retaliatory 9 animus. Moreover, Gallagher's asserted lack of knowledge is 10 irrelevant to the remaining denials of promotions and to the 1999 11 transfer decision, as Gallagher admittedly reviewed plaintiff's 12 1987 testimony shortly after the 1997 denial of promotion. 13 Nor does plaintiff's claim of retaliation fail because of 14 his 1989 promotion to deputy inspector. First, no promotions 15 followed the 1992 Newsdayinterview, the second instance of 16 protected speech. Second, a reasonable juror could find that 17 Commissioner Guido's administration in 1989 had a fairer and more 18 merit-driven promotion policy than Gallagher's administration in 19 1997-1999. 20 As a consequence, we believe plaintiff submitted adequate 21 proof to support a finding that his public criticism of the 22 department affected defendant Gallagher's promotion and transfer 23 decisions. 24 Finally, we reject defendants' argument that the state's 25 interest in regulating Mandell's speech outweighed his interest 2629

in the speech simply because when he gave his Newsdayinterview 1 he held the rank of deputy inspector. Defendants advanced no 2 reason why the interview was likely to disrupt the department's 3 operations, nor has our own review of the Newsdayarticle 4 revealed any basis for such a conclusion. See Lewis v. Cowen, 5 165 F.3d 154, 162 (2d Cir. 1999) ("The government bears the 6 burden of demonstrating that the speech threatens to interfere 7 with government operations."). 8
C. Municipal Liability 9 A municipal entity may be liable under 42 U.S.C. § 1983 only 10 if the alleged constitutional violation was caused by the 11 entity's "policy or custom." Monell, 436 U.S. at 694. The 12 "policy or custom" requirement, however, "is intended simply to 13 distinguish acts of the municipality from acts of its employees, 14 in order that municipal liability be limited to conduct for which 15 the municipality is actually responsible." Dangler v. New York 16 City Off Track Betting Corp. , 193 F.3d 130, 142 (2d Cir. 1999). 17 Thus, if the challenged action is directed by an official with 18 "final policymaking authority," the municipality may be liable 19 even in the absence of a broader policy. See Pembaur v. City of 20 Cincinnati, 475 U.S. 469, 481-83 (1986) ("Municipal liability 21 attaches only where the decisionmaker possesses final authority 22 to establish municipal policy with respect to the action 23 ordered."). Here, plaintiff challenges as retaliatory employment 24 decisions made by Gallagher, who, as the Suffolk County police 25 commissioner, had authority to set department-wide personnel 2630

policies. Gallagher's position provides a sufficient basis for 1 holding the County liable for his adverse decisions with respect 2 to plaintiff. 3
D. Qualified Immunity 4 Under the doctrine of qualified immunity, a government 5 official performing discretionary functions is shielded from 6 liability for civil damages if his conduct did not violate 7 plaintiff's clearly established rights or if it would have been 8 objectively reasonable for the official to believe that his 9 conduct did not violate plaintiff's rights. See, e.g. , Lewis, 10 165 F.3d at 166-67 (describing the qualified immunity doctrine). 11 Where specific intent of a defendant is an element of plaintiff's 12 claim under clearly established law, and plaintiff has adduced 13 sufficient evidence of that intent to defeat summary judgment, 14 summary judgment on qualified immunity grounds is inappropriate. 15
See Locurto, 264 F.3d at 169-70; Sheppard v. Beerman, 94 F.3d 16 823, 828 (2d Cir. 1996). In the present case retaliatory intent 17 is an element of plaintiff's claim, and we have already noted 18 that plaintiff's evidence of retaliatory animus is sufficient to 19 make defendants' motivation a triable issue of fact. Until that 20 issue is resolved by a factfinder, therefore, the retaliation 21 claim against defendant Gallagher cannot be dismissed on 22 qualified immunity grounds. 23 In sum, we conclude that the district court erred in 24 dismissing Mandell's retaliation claim for lack of evidence of 25 causation. And because defendants' remaining arguments lack 2631

merit, we must vacate the dismissal of this claim and remand it 1 to the trial court. 2
CONCLUSION 3 For the foregoing reasons, we affirm the dismissal of the 4 Title VII claim against Gallagher in his personal capacity, 5 vacate the district court's judgment in all remaining respects, 6 and remand the case to the district court for further proceedings 7 not inconsistent with this opinion. 8