1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 _______________

5

6 August Term, 2001

7

8 (Argued March 7, 2002 Decided January 17, 2003)

9

10 Docket No. 01-7729

11

12 _______________

13

14 HOWARD E. MANDELL,

15

16 Plaintiff-Appellant,

17

18 v.

19

20 THE COUNTY OF SUFFOLK and JOHN GALLAGHER, Police Commissioner,

21

22 Defendants-Appellees.

23

24 _______________

25

26 Before:

27 CARDAMONE, F.I. PARKER, and B.D. PARKER, Jr.,

28 Circuit Judges.

29

30 _______________

31

32 Plaintiff Howard E. Mandell appeals from a judgment filed

33 June 7, 2001 in the United States District Court for the Eastern

34 District of New York (Mishler, J.), dismissing his claims of

35 religious discrimination and First Amendment retaliation and

36 granting defendants Suffolk County and Police Commissioner John

37 Gallagher summary judgment pursuant to Fed. R. Civ. P. 56(c).

38

39 Affirmed in part, vacated in part, and remanded.

40

41 _______________

42

43 ALAN POLSKY, Bohemia, New York, for Plaintiff-Appellant.

44

45 DIANE L. BECKMANN, Assistant County Attorney, Hauppauge, New York

46 (Robert J. Cimino, Suffolk County Attorney, Hauppauge, New

47 York, of counsel), for Defendants-Appellees.

48

49 _______________
2

1 CARDAMONE, Circuit Judge:

2 This is an appeal in an employment discrimination case. 

3 There is a nursery rhyme that teaches "sticks and stones may

4 break my bones, but names will never hurt me." Such is a lesson

5 particularly doubtful in the workplace, as illustrated by this

6 case, because alleged epithets and demeaning invective directed

7 at a plaintiff by his or her superiors or co-workers can, if

8 believed by a factfinder, subject an employer to legal liability

9 for discrimination.

10 Plaintiff Howard E. Mandell, a practicing Jew and a now11 retired employee of the Suffolk County Police Department (Suffolk

12 County Police or the department), instituted the instant action

13 against defendants, the County of Suffolk and John Gallagher, its

14 police commissioner, individually and in his official capacity,

15 in the United States District Court for the Eastern District of

16 New York (Mishler, J.).

17 Adverse employment actions were taken against him, plaintiff

18 contends, because of his religion, and also in retaliation for

19 his June 1987 testimony before the Suffolk County Legislature's

20 Public Safety Committee and for his 1992 interview with Newsday,

21 the Long Island daily newspaper. Accordingly, the complaint

22 alleges religious discrimination in violation of Title VII of the

23 Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and First

24 Amendment retaliation in violation of 42 U.S.C. § 1983. It also

25 asserts claims under New York State's Human Rights Law, N.Y.
3

1 Exec. Law § 296, and the New York State Constitution, Article 1,

2 § 8.

3 BACKGROUND

4 I Facts

5 A. Plaintiff's Allegations of Pro-Catholic and

6 Anti-Jewish Bias Within the Suffolk County Police Department

7

8 Because we are reviewing a dismissal of the complaint at the

9 summary judgment stage, we view the facts in the light most

10 favorable to plaintiff and resolve all factual disputes in

11 plaintiff's favor. See Fed. R. Civ. P. 56(c). Plaintiff was

12 employed by the Suffolk County Police for over 30 years, retiring

13 with the rank of deputy inspector in 2001. He joined the

14 department as a police officer in 1969 and attained the rank of

15 captain in 1988, through a series of promotions based on civil

16 service examinations. Mandell asserts that throughout his police

17 career he faced a pro-Christian and, more specifically, pro18 Irish-Catholic bias. Further, he contends anti-Semitism for a

19 long time has been a part of the department culture. He has

20 repeatedly been a target of anti-Semitic remarks and taunting,

21 such as being called "that Jew" and "Jewboy" and being told that

22 all Jews stick together, and was subjected to insulting and

23 demeaning conduct by fellow officers. He relates that on one

24 occasion, for example, another officer tossed a dime on the floor

25 before him to see if he would stoop down to pick it up. 

26 Plaintiff claims also to have heard virulent anti-Semitic remarks

27 directed at other Jews, such as "f***ing Jews" and "f***ing Jew
4

1 lawyer." Although these overt expressions of anti-Semitism in

2 his presence virtually ceased in 1989 upon his promotion to

3 deputy inspector, he attributes this to his rank, not to a shift

4 in the department attitude toward him.

5 Rabbi Jeffrey Wartenberg, a Suffolk County police chaplain,

6 supported plaintiff's allegations, stating in an affidavit that

7 during his 20 years with the department he had heard many Jewish

8 officers complain about the disparaging remarks made against

9 their religion. Based on his experience, Rabbi Wartenberg

10 concluded that "anti-Semitism is a way of life within the

11 Department" and that Jewish officers had been held back in their

12 careers by superiors with negative feelings about them. He said

13 his complaints to every police commissioner, including defendant

14 Gallagher, did not result in any corrective action, and the

15 Suffolk County Police continues to favor Catholics, while Jewish

16 officers are only promoted in the rare cases where merit is the

17 sole criterion.

18 B. Plaintiff's Career Before 1997 and His Public

19 Criticism of the Department

20

21 In June 1987, when he was a police lieutenant, Mandell

22 testified before the Suffolk County Legislature's Public Safety

23 Committee. His testimony described the department as

24 insufficiently proactive in fighting organized crime, resistant

25 to change, and more focused on protecting its internal

26 bureaucracy than on protecting the public. He also set out his

27 view that the "old-boy network" within the department covered up
5

1 officers' misconduct, including criminal activity, and that

2 racism and anti-Semitism were systemic. On the following day,

3 plaintiff's photograph and an excerpt from this testimony

4 appeared on the front page of Newsday under the headline,

5 "Suffolk Cop Charges: 'They Look Out For Their Own.'"

6 Apparently members of the department were offended because

7 in January 1988 plaintiff was expelled from the Suffolk County

8 Patrolmen's Benevolent Association for having "branded the entire

9 department as racist and anti-semites." Plaintiff says his

10 expulsion was another manifestation of the general hostility

11 toward him, triggered by his testimony, that persisted in the

12 department for years.

13 Later in 1988 Mandell was promoted from lieutenant to

14 captain. This promotion, like those before it, was not

15 discretionary to the commissioner, but based on a civil service

16 examination, subject to the commissioner's bypass. As part of

17 the promotion procedure, Mandell's then-supervisor Inspector John

18 J. Stewart wrote an evaluation that gave a generally positive

19 assessment of plaintiff's work as a police officer, describing

20 him as an "acceptable candidate for promotion to the rank of

21 Captain." In the evaluation Stewart also stated that plaintiff

22 was "a somewhat controversial individual" and complained that he

23 (Stewart) had spent too much time on issues relating to

24 plaintiff, the media, and internal investigations. He wrote,

25 specifically underlining the second clause,
6

1 While I do not consider that the attitude

2 projected [by plaintiff] should necessarily

3 affect [plaintiff's] suitability for

4 promotion [to captain], I do feel that his

5 attitude should be taken into account when

6 placing him in any future assignment.

7

8 This evaluation was placed in plaintiff's personnel file.

9 A year later plaintiff was promoted to the rank of deputy

10 inspector. This promotion was distinct from Mandell's preceding

11 promotions because all promotions beyond the rank of a captain

12 were made at the discretion of the police commissioner, who at

13 that time was Daniel Guido. Unlike the commissioners before and

14 after him, Commissioner Guido was not from Suffolk County; he was

15 an outsider and a known reformer. Mandell attributes his

16 promotion to Commissioner Guido's effort to institute a merit17 based promotion policy and maintains that after Commissioner

18 Guido's resignation, the department reverted to its "old-boy

19 network's" practices of nepotism and cronyism. The 1989

20 promotion to deputy inspector was not only plaintiff's sole

21 discretionary promotion; it was also his last.

22 Several years later, in the summer of 1992, at his

23 supervisor's request, Mandell gave an interview to Newsday for

24 its series of articles entitled "Black 'n' Blue in Wyandanch: 

25 Summer in the 1st Precinct." The series focused on the operation

26 of the predominantly white police force in a predominantly black

27 community of Wyandanch. The second article quoted plaintiff as

28 saying that the Suffolk County Police had difficulty recruiting

29 black officers because the black community viewed police officers
7

1 as oppressors. The article reported, in addition, plaintiff's

2 comment that he had to remove some officers with racist attitudes

3 from covering Wyandanch despite his efforts to screen officers

4 for racist attitudes before assigning them there.

5 After the publication of the Newsday article, Mandell's co6 workers' hostility toward him escalated. For example, other

7 police officers would not talk to him unless they had to, and two

8 police chiefs expressly warned him that his comments in Newsday

9 might harm his chances for advancement. Within days of

10 publication, Chief Edwin Michel told him that if he wanted to be

11 a chief he would have to learn to keep his mouth shut, and Chief

12 Gerald Marcoe advised that his career might be adversely affected

13 because he was "still carrying the baggage from having

14 testified," referring to the 1987 Public Safety Committee

15 testimony. In January 1993, five months after the interview,

16 Mandell was transferred from the executive officer position he

17 held in the First Precinct to a post of commanding officer in the

18 Staff Services Bureau. Plaintiff viewed this transfer as

19 punishment because his superiors knew he preferred to work in the

20 more prestigious patrol division rather than in the desk job at

21 Staff Services.

22 C. Plaintiff's Career During Gallagher's

23 Tenure as Commissioner

24

25 In January 1997 defendant John Gallagher became police

26 commissioner of Suffolk County. The crux of plaintiff's

27 complaint is that Gallagher, who is Irish-Catholic, promoted a
8

1 pro-Catholic mentality in the department. At official police

2 functions Gallagher made statements like "[W]e are all good

3 Christians," and, "[W]e can all work well together because we all

4 went to good Christian schools, were taught by the Christian

5 Brothers and learned good Christian values." Defendants respond

6 that Gallagher's statements were innocuous and taken out of

7 context.

8 During Gallagher's tenure as commissioner, Shomrim, a

9 fraternal organization for Jewish police officers that Mandell

10 co-founded, saw its membership decrease dramatically; the

11 organization was defunct when plaintiff retired. Plaintiff

12 contends that this occurred under Gallagher's administration

13 because visibility as a Jew in the department was seen as a

14 liability.

15 On four separate occasions between 1997 and 1999, Gallagher

16 declined to promote plaintiff to the rank of an inspector: on

17 August 4, 1997 (one position open); on September 7, 1998 (two

18 positions open); on August 30, 1999 (two positions open); and on

19 November 7, 1999 (one position open). These promotions went to

20 Catholic officers instead.

21 When he was passed over the first time in August 1997

22 Mandell complained to Gallagher about discrimination in the

23 department. Defendant said he would institute a formal internal

24 affairs investigation. Dissatisfied with this response,

25 plaintiff wrote a letter on August 25, 1997 to Suffolk County

26 Legislator Maxine Postal. In the letter he criticized
9

1 Gallagher's decision to forward his discrimination complaint to

2 Internal Affairs, and labeled defendant as "either the most

3 pathetically inept Commissioner that we have ever had or the most

4 devious." It is sharply contested whether Gallagher saw a copy

5 of this letter prior to the instant litigation.

6 In November 1999 Gallagher involuntarily transferred

7 plaintiff, who was then a commanding officer -- a top-ranking and

8 decision-making position in a division -- to the more subordinate

9 position of executive officer. This transfer was perceived as a

10 demotion not only by plaintiff but also by his fellow officers

11 who commented that the transfer was not favorable, not in

12 anticipation of a promotion, and that it was plain the department

13 was trying to force plaintiff to resign.

14 II Proceedings Below

15 The instant action was commenced in March 1999, with an

16 amended complaint filed in February 2000. In the amended

17 complaint Mandell contends that the four denials of promotion to

18 inspector in 1997-1999 and the 1999 transfer to executive officer

19 were motivated in part by religious discrimination and in part by

20 retaliation for his public criticism of the department. At the

21 close of discovery, defendants moved for summary judgment on a

22 number of different grounds. Concluding that plaintiff had

23 failed to establish a prima facie case of discrimination or to

24 adduce evidence of a causal connection between the two instances

25 of speech and the adverse employment actions at issue, the

26 district court granted defendants summary judgment on all
10

1 plaintiff's claims. This appeal ensued. We affirm, in part, and

2 vacate and remand, in part.

3 DISCUSSION

4 I Standard of Review

5 A district court's grant of summary judgment is reviewed de

6 novo. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.

7 2000). A district court may award summary judgment only if,

8 after drawing all reasonable inferences and resolving all

9 ambiguities in the non-moving party's favor (here plaintiff), it

10 concludes that no genuine issue of material fact exists and the

11 moving party is entitled to a judgment as a matter of law. Fed.

12 R. Civ. P. 56(c). To overcome such a motion, the non-moving

13 party must offer sufficient proof to allow a reasonable

14 factfinder to decide in its favor. In discrimination cases where

15 state of mind is at issue, we affirm a grant of summary judgment

16 in favor of an employer sparingly because "careful scrutiny of

17 the factual allegations may reveal circumstantial evidence to

18 support the required inference of discrimination." Graham, 230

19 F.3d at 38.

20 II Title VII and State Human Rights Law

21 Claims Against Gallagher

22

23 Although the district court ruled in favor of defendant

24 Gallagher on other grounds, the district court's dismissal of

25 plaintiff's Title VII claims against Gallagher in his personal

26 capacity must be affirmed because under Title VII individual

27 supervisors are not subject to liability. See Wrighten v.
11

1 Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam); Tomka v.

2 Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); see also Shumway

3 v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997)

4 (noting that "an appellate court may affirm the judgment of the

5 district court on any ground appearing in the record"). 

6 Individual liability is sometimes possible, however, under New

7 York's Human Rights Law. Gregory v. Daly, 243 F.3d 687, 689 n.1

8 (2d Cir. 2001); Tomka, 66 F.3d at 1317. Since the parties have

9 not briefed this issue, either in the district court or on

10 appeal, and because, as discussed below, we vacate the dismissal

11 of the state Human Rights Law claims against the county, we also

12 vacate the dismissal of those state claims against Gallagher,

13 without prejudice to his raising the issue of individual

14 liability on remand.

15 III Title VII and State Human Rights Law

16 Claims Against County

17

18 We analyze plaintiff's federal and state law discrimination

19 claims together since in other contexts we have applied federal

20 standards of proof to discrimination claims under the state Human

21 Rights Law. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d

22 456, 466 (2d Cir.), cert. denied, 534 U.S. 993 (2001) (age

23 discrimination); Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1

24 (2d Cir. 2000) (sex discrimination); Torres v. Pisano, 116 F.3d

25 625, 629 n.1 (2d Cir. 1997) (hostile work environment); Van Zant

26 v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996)

27 (hostile work environment and retaliation). As the parties do
12

1 not contend that federal and state standards diverge, we will for

2 purposes of this opinion assume that the standards of proof

3 applicable to plaintiff's Title VII and Human Rights Law claims

4 are the same in all relevant respects.

5 A. Prima Facie Case

6 Mandell's religious discrimination claims are analyzed under

7 the burden-shifting framework of McDonnell Douglas Corp. v.

8 Green, 411 U.S. 792 (1973). See Meiri v. Dacon, 759 F.2d 989,

9 994 (2d Cir. 1985) (applying the McDonnell Douglas framework to a

10 religious discrimination claim). At the first stage of the

11 McDonnell Douglas analysis, a plaintiff has the burden of

12 establishing a prima facie case of discrimination by showing that

13 he or she: (1) is a member of a protected class; (2) was

14 qualified for the position at issue; (3) was denied the position;

15 and (4) that the circumstances of the adverse employment decision

16 give rise to an inference of discrimination. Howley v. Town of

17 Stratford, 217 F.3d 141, 150 (2d Cir. 2000); Rosen v. Thornburgh,

18 928 F.2d 528, 532 (2d Cir. 1991). Defendants do not contest the

19 first three elements, focusing instead on the fourth element, and

20 contending, as they did in the district court, that the

21 circumstances do not give rise to an inference of discrimination.

22 The burden of establishing a prima facie case under

23 McDonnell Douglas is minimal. Howley, 217 F.3d at 150. In the

24 case at hand, plaintiff's evidence of discrimination falls into

25 three categories: (1) Gallagher's statements indicating his

26 preference for promotion of Christians or Catholics; (2) evidence
13

1 of department culture tolerant of anti-Semitism; and (3)

2 promotion of Catholic officers on the four occasions at issue.

3 1. Gallagher's Comments. At an official police function

4 shortly after he became commissioner, Gallagher addressed members

5 of the department in a speech replete with references to

6 Christian values and Catholic education, including such comments

7 as the "all good Christians" remarks noted earlier. On another

8 occasion, the commissioner professed his belief in absolute papal

9 authority at a breakfast meeting with department members. From

10 these statements, a reasonable juror could infer that Gallagher

11 viewed Catholicism -- or, more broadly, Christianity -- as a

12 necessary part of a good police officer's make-up and that he

13 considered non-Christian officers to be lacking the right make14 up.

15 In his response, Gallagher declares that he mentioned

16 Christian schooling only in pointing out that Chief Monteith and

17 he had attended the same school run by the Christian Brothers

18 order, and the Pope's absolute authority, he said, was used as an

19 analogy to a police commissioner's prerogative to circumvent

20 hierarchical channels of communication and to work directly with

21 officers at the various level of the chain of command. At the

22 summary judgment stage, however, we must resolve all factual

23 disputes in plaintiff's favor. Accepting plaintiff's account of

24 Gallagher's comments as true, a reasonable juror could conclude

25 that these comments indicated Gallagher's pro-Christian or pro26 Catholic bias.
14

1 The trial court rejected the proof regarding Gallagher's

2 preference for Catholics as insufficient to support a prima facie

3 case of religious discrimination, absent any proof of animus

4 directed specifically at Jews. We think this reasoning was

5 error. First, contrary to the district court's belief, plaintiff

6 did submit evidence of anti-Jewish animus, which we discuss in a

7 moment. Second, to establish a claim of religious

8 discrimination, plaintiff does not have to prove that defendants

9 discriminated solely against his religion. An employer

10 discriminating against any non-Catholic violates the anti11 discrimination laws no less than an employer discriminating only

12 against one discrete group, in this case, Jews.

13 2. Culture of Department. Anti-Semitic comments and

14 behavior have traditionally been part of the culture of the

15 Suffolk County Police Department. The facts section detailed the

16 epithets aimed at plaintiff and the department's tolerance for

17 anti-Semitic conduct, such as the coin toss mentioned earlier,

18 which was a reference to the demeaning ethnic stereotype that

19 Jews are "cheap." Although most of these examples of overt anti20 Semitism pre-date plaintiff's 1989 promotion to deputy inspector,

21 a reasonable juror could find this improved behavior reflects not

22 a change in attitude, but only greater caution by fellow officers

23 regarding their conduct in the presence of an officer who

24 outranked them.

25 Further support for plaintiff's allegations about the

26 department's culture bias is provided by the affidavit of Rabbi
15

1 Wartenberg who served as the Suffolk County police chaplain for

2 20 years. Although his affidavit contains a number of conclusory

3 characterizations, Rabbi Wartenberg also avers that he had

4 communicated his concern about anti-Semitic attitudes within the

5 department to every commissioner with whom he had worked,

6 including Commissioner Gallagher. All responded by acknowledging

7 that anti-Semitism was a problem, but failed to take any concrete

8 action to remedy it. For instance, throughout his tenure as a

9 chaplain, Rabbi Wartenberg said he had never seen an official

10 statement issued by a commissioner condemning anti-Semitism, nor

11 had he ever heard of a police officer receiving punishment beyond

12 chastisement for anti-Semitic conduct.

13 This proof indicates that department leadership, including

14 Gallagher, knowingly tolerated anti-Semitic attitudes and

15 conduct. Interpreted in the light most favorable to plaintiff,

16 it suggests an anti-Jewish bias on defendants' part and therefore

17 further supports the assertion that Gallagher's decisions not to

18 promote plaintiff and to transfer him to a subordinate position

19 were motivated by an illegal animus.

20 3. Promotion of Catholic Officers. On four occasions

21 Gallagher passed over plaintiff for promotion to inspector in

22 favor of others. Of the six deputy inspectors promoted in 1997-

23 1999, five were concededly Catholic. Mandell admittedly does not

24 know the religion of the sixth deputy inspector though he

25 believes he is also Catholic. Defendants do not dispute the

26 religious backgrounds of the promoted deputy inspectors,
16

1 declaring instead that such promotions are not proof of

2 discrimination.

3 A showing of disparate treatment -- that is, a showing that

4 the employer treated plaintiff "less favorably than a similarly

5 situated employee outside his protected group" -- is a recognized

6 method of raising an inference of discrimination for purposes of

7 making out a prima facie case. Graham, 230 F.3d at 39. A

8 plaintiff relying on disparate treatment evidence "must show she

9 was similarly situated in all material respects to the

10 individuals with whom she seeks to compare herself." Id. 

11 Ordinarily, the question whether two employees are similarly

12 situated is a question of fact for the jury. In the instant

13 case, plaintiff has adduced enough evidence to support a finding

14 that the promoted officers and plaintiff were sufficiently

15 similarly situated to support an inference of discrimination. 

16 Mandell and the promoted officers were all qualified and Mandell

17 had greater or comparable seniority, having spent more time in

18 rank and more time in the department than all but one officer of

19 those promoted ahead of him.

20 In contesting the significance of the promotions, defendants

21 first rely on Gallagher's statement that at the time of the

22 promotions he was not aware of the promoted officers' religious

23 backgrounds. Additionally, defendants assert that an inference

24 of discrimination is not warranted because on each of the four

25 occasions the pool of candidates included other deputy inspectors

26 with similar or greater seniority than plaintiff's, some of whom
17

1 Gallagher knew to be Catholic and yet chose not to promote. Yet,

2 even were Gallagher's denials of knowledge to be believed, it

3 still remains true that in a predominantly Christian department,

4 Gallagher's decision to reject the one known Jewish candidate in

5 favor of a candidate of unknown religion, coupled with his pro6 Christian comments, could support an inference of discrimination. 

7 In any event, we think the proof detailed in (1), (2), and (3) is

8 sufficient to satisfy plaintiff's minimal prima facie burden.

9 B. Defendants' Proffer of Legitimate Nondiscriminatory Reasons

10 Given that plaintiff has established a prima facie case of

11 discrimination, we now turn to the remaining two stages of the

12 McDonnell Douglas analysis. Under McDonnell Douglas, once

13 plaintiff establishes a prima facie case, a presumption arises

14 that his employer unlawfully discriminated against him. Tex.

15 Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To

16 rebut this presumption, the employer must come forward with

17 admissible evidence of legitimate nondiscriminatory reasons for

18 its adverse actions toward plaintiff. See id.

19 With respect to the August 1997 promotion, Gallagher's

20 deposition testimony provides sufficient evidence of legitimate

21 reasons for his decision not to promote plaintiff. Gallagher

22 testified that in evaluating candidates for the August 1997

23 promotion he relied heavily on the recommendations of police

24 chiefs and the deputy commissioner. Several of the chiefs as

25 well as precinct community leaders recommended the officer

26 ultimately promoted at that time, Deputy Inspector Hamann. In
18

1 addition, Gallagher maintains that he chose Hamann because Hamann

2 was already working in the precinct where the vacancy existed,

3 and was therefore familiar with conditions there.

4 Gallagher further attributes his decision not to promote

5 plaintiff to the negative impression plaintiff made on him during

6 a 1997 interview. He states in vague terms that Mandell "did not

7 project the image . . . of someone who has a positive grasp" of

8 some unspecified "areas" of interest to Gallagher. While

9 defendant does not clarify what particular "image" he was

10 seeking, it appears that the negative impression stemmed at least

11 in part from plaintiff's reaction during the interview to

12 Gallagher's expressed preference for promoting an officer from

13 within the precinct. Plaintiff told Gallagher he considered this

14 approach unfair because it disadvantaged officers in support

15 services functions, a position Mandell then held.

16 Gallagher's testimony also provides evidence of

17 nondiscriminatory reasons for the post-1997 denials of promotion.

18 Gallagher explains that he chose not to promote Mandell on those

19 three occasions because of plaintiff's derogatory comments about

20 him in the letter sent to County Legislator Postal, which

21 plaintiff wrote after being passed over for the August 1997

22 promotion. The letter characterized Gallagher as either "inept"

23 or "devious," and it further labeled him a "modern day version of

24 Pontius Pilate" because plaintiff thought that by referring his

25 discrimination complaint to the Internal Affairs Bureau,

26 Gallagher washed his hands of the anti-Semitism problem in the
19

1 department. Gallagher maintains that he received a copy of the

2 letter prior to the September 1998 round of promotions and was

3 influenced by its content, as well as by the negative impression

4 made on him by Mandell's 1997 interview.

5 Defendants do not articulate any basis for the 1999 transfer

6 from commanding officer to the more subordinate position of

7 executive officer. In fact, in their briefs in the district

8 court and here, defendants address the transfer claim primarily

9 by stating that officers other than plaintiff have also been

10 transferred from commanding officer positions to executive

11 officer positions. Without any evidence with respect to the

12 circumstances of these transfers, the fact they occurred is not

13 relevant to our analysis. Accordingly, defendants failed to

14 carry their burden of establishing legitimate nondiscriminatory

15 reasons for the demotion, and the dismissal of plaintiff's claim

16 of discriminatory transfer must be vacated.

17 C. Plaintiff's Ultimate Burden of Establishing Discrimination

18 Once the employer produces evidence of legitimate reasons

19 for its actions, the burden shifts back to the plaintiff to

20 prove, by a preponderance of the evidence, that the real reason

21 for the adverse employment decision was discrimination. Although

22 plaintiff is not required to show "that the employer's proffered

23 explanation is unworthy of credence," evidence of pretext may

24 help plaintiff carry his ultimate burden on this final stage of

25 the McDonnell Douglas analysis. Burdine, 450 U.S. at 256.
20

1 As noted above, defendants have established legitimate

2 reasons for the 1997-1999 denials of promotions but not for the

3 1999 transfer. Accordingly, our analysis on the final stage of

4 the McDonnell Douglas framework is limited to plaintiff's claims

5 of illegally denied promotions.

6 Mandell presented evidence suggesting that defendants'

7 reliance on plaintiff's letter to Legislator Postal as a reason

8 for denying plaintiff promotions is pretext. Legislator Postal

9 and her assistant, who handles Postal's correspondence, submitted

10 affidavits stating that they never showed plaintiff's letter to

11 anyone or copied it, and that their practice generally is to

12 treat all incoming correspondence as confidential. Plaintiff

13 similarly denies ever forwarding a copy of his letter to anyone. 

14 From this proffer, a trier of fact could find, contrary to

15 defendants' assertions, that Gallagher did not see the letter

16 until the commencement of this law suit and that defendants may

17 therefore be using the letter as a pretext to cover up a

18 discriminatory motive. See Reeves v. Sanderson Plumbing Prods.,

19 Inc., 530 U.S. 133, 147 (2000).

20 Further, even though plaintiff does not present evidence

21 directly contradicting defendants' remaining stated reasons for

22 not promoting him -- plaintiff's 1997 interview with Gallagher

23 and, with respect to the 1997 round of promotions, chiefs'

24 recommendations of Hamann and Hamann's greater knowledge of the

25 precinct -- this failure is not fatal to plaintiff's claims. We

26 have previously cautioned that an employer may not rely solely on
21

1 wholly subjective and unarticulated standards as a basis for its

2 promotion decisions. Byrnie v. Town of Cromwell, Bd. Of Educ.,

3 243 F.3d 93, 104 (2d Cir. 2001). An employer's explanation of

4 its legitimate nondiscriminatory reasons must be "clear and

5 specific." Meiri, 759 F.2d at 997. Here, Gallagher's

6 explanation of the negative impact of the 1997 interview is

7 couched in vague and general terms since the "positive image"

8 that, in his view, plaintiff failed to project is not described

9 in any concrete terms. Given plaintiff's evidence of Gallagher's

10 pro-Christian statements at official police functions, a

11 reasonable factfinder could believe that the sought-after

12 "positive image" incorporated Christian religious affiliation and

13 that Gallagher refused to promote plaintiff because plaintiff did

14 not meet that requirement. Gallagher admittedly knew that

15 plaintiff was Jewish and therefore, even without knowing the

16 other candidates' religion, could have chosen to avoid plaintiff

17 as the one known non-Christian candidate.

18 Defendants are on more solid ground in relying on police

19 chiefs' recommendations of Hamann and on Hamann's prior knowledge

20 of the precinct as a basis for Gallagher's decision to promote

21 him rather than plaintiff in 1997. Plaintiff has not produced

22 any evidence of anti-Semitic comments or conduct by the five

23 chiefs who submitted recommendations to Gallagher. Contrary to

24 plaintiff's argument, his own and Rabbi Wartenberg's generalized

25 descriptions of pervasive anti-Semitism within the department are

26 not sufficient to support an inference that those five police
22

1 chiefs' recommendations were in fact tainted by anti-Semitic

2 sentiment. But even here the ultimate decision to accept these

3 recommendations was Gallagher's. Because, as discussed above,

4 plaintiff has presented evidence indicating Gallagher's pro5 Christian bias, we cannot conclude that proof of the police

6 chiefs' recommendations entitles defendants to judgment as a

7 matter of law.

8 In sum, we think that based on the evidence submitted in

9 support of plaintiff's prima facie case and on plaintiff's

10 evidence of pretext, a reasonable juror could find that

11 defendants' 1997-1999 decisions not to promote plaintiff to the

12 rank of inspector were motivated by religious discrimination. We

13 must therefore vacate the dismissal of plaintiff's claims of

14 discriminatory failure to promote under Title VII and the Human

15 Rights Law.

16 IV 42 U.S.C. § 1983: First Amendment Retaliation

17 Analysis turns to plaintiff's claim of First Amendment

18 retaliation under 42 U.S.C. § 1983. Mandell alleges that, by

19 failing to promote him to the rank of inspector in 1997-1999 and

20 by transferring him to the position of executive officer in 1999,

21 defendants illegally retaliated for his public criticism of the

22 department before the County's Public Safety Committee in 1987

23 and for his 1992 interview with Newsday. The district court

24 summarily rejected this claim for lack of proof of causal

25 connection between the speech and the alleged adverse employment

26 actions. On appeal, defendants additionally insist that
23

1 plaintiff's speech does not enjoy constitutional protection, that

2 he suffered no adverse employment actions, and that he failed to

3 establish a basis for the County's liability under Monell v.

4 Department of Social Services, 436 U.S. 658 (1978). Further,

5 they maintain that Gallagher is entitled to qualified immunity.

6 A. Retaliation in General

7 Although a public employee "does not relinquish First

8 Amendment rights to comment on matters of public interest by

9 virtue of government employment," these rights are not absolute,

10 because the government, as an employer, has a legitimate interest

11 in regulating the speech of its employees to promote the

12 efficiency of its public services. Connick v. Myers, 461 U.S.

13 138, 140 (1983) (citing Pickering v. Bd. of Educ., 391 U.S. 563,

14 568 (1968)). The extent of permissible government regulation of

15 speech under these circumstances is determined by balancing the

16 interest of the employee, in his role as a citizen, in commenting

17 on matters of public concern against the interest of the

18 government, in its role as an employer, in promoting the

19 efficiency of the services it performs through its employees. 

20 Morris v. Lindau, 196 F.3d 102, 109-10 (2d Cir. 1999).

21 Before reaching this balancing test a court must be

22 satisfied that a plaintiff claiming First Amendment retaliation

23 has demonstrated that: (1) his speech addressed a matter of

24 public concern, (2) he suffered an adverse employment action, and

25 (3) a causal connection existed between the speech and the

26 adverse employment action, "so that it can be said that his
24

1 speech was a motivating factor in the determination." Id. at

2 110; see also Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001)

3 (describing elements of First Amendment Retaliation claim). If

4 the plaintiff produces evidence of these three elements, the

5 government may nevertheless escape liability on either one of two

6 separate rationales. One way the government may prevail is by

7 demonstrating by a preponderance of the evidence that it would

8 have taken the same adverse action in the absence of the

9 protected speech. Morris, 196 F.3d at 110. Alternatively, the

10 government may show that plaintiff's speech was likely to disrupt

11 the government's activities, and the likely disruption was

12 "sufficient to outweigh the First Amendment value of plaintiff's

13 speech." Locurto, 264 F.3d at 166. If the government relies on

14 the latter rationale and the balance of interests indeed weighs

15 in the government's favor, plaintiff may still succeed by proving

16 that the adverse action was in fact motivated by retaliation

17 rather than by fear of disruption. Id.

18 B. Retaliation in This Case

19 Applying these principles to Mandell's case, we find wholly

20 unpersuasive defendants' contention that plaintiff's 1987 Public

21 Safety Committee testimony did not enjoy a constitutionally

22 protected status because it was a disgruntled employee's

23 complaint about his own promotional opportunities. Such

24 characterization of Mandell's testimony finds no support in the

25 record. As a general rule, speech on "any matter of political,

26 social, or other concern to the community" is protected by the
25

1 First Amendment. Connick, 461 U.S. at 146. Plaintiff's

2 testimony criticized the department's approach to fighting

3 organized crime, its resistence to change, and its systemic

4 racism and anti-Semitism. All these subjects are clearly matters

5 of public concern.

6 Similarly meritless is defendants' contention that plaintiff

7 suffered no adverse employment action. Adverse employment

8 actions include both refusals to promote and demotions. Morris,

9 196 F.3d at 110. It is undisputed that defendants refused to

10 promote plaintiff to the rank of an inspector, and that the 1999

11 transfer placed plaintiff in a position subordinate to the one he

12 had previously held.

13 Again, defendants maintain plaintiff failed to establish a

14 causal connection between his public criticism of the Suffolk

15 County Police and the adverse employment decisions. "Causation

16 can be established either indirectly by means of circumstantial

17 evidence, for example, by showing that the protected activity was

18 followed by adverse treatment in employment, or directly by

19 evidence of retaliatory animus." Id. at 110. We think Mandell

20 adduced sufficient direct evidence of retaliatory animus to

21 create a triable question of fact on this issue. Several reasons

22 lead us to this result.

23 The 1988 letter expelling plaintiff from the Suffolk County

24 PBA expressly stated that he was being removed for having

25 "branded the entire department as racist and anti-semites." This

26 expulsion shows that, at least during the months following
26

1 Mandell's testimony, a substantial number of police officers

2 viewed the testimony as a betrayal of the department. An

3 evaluation placed in plaintiff's personnel file in May 1988

4 contained negative comments and recommendations plainly brought

5 on by that testimony. Specifically, Inspector Stewart wrote

6 negatively about plaintiff and although the inspector did not

7 recommend denial of plaintiff's next promotion -- the non8 discretionary promotion to the rank of a captain -- he did

9 emphasize that Mandell's "attitude should be taken into account

10 when placing him in any future assignment." Because this

11 evaluation was placed in plaintiff's file, it could have

12 reasonably impacted Mandell's career opportunities in the ensuing

13 years.

14 Further, during the days following the Newsday interview,

15 Chief Michel told plaintiff that he would have to learn to keep

16 his mouth shut, and Chief Marcoe told him that his career might

17 be adversely affected because of the "baggage" created by his

18 1987 testimony. The latter comment suggests that negative

19 attitudes towards Mandell caused by that testimony lingered for

20 at least five years. Because both Michel and Marcoe were among

21 those chiefs who recommended candidates other than plaintiff for

22 the 1997 promotion to inspector, a reasonable factfinder could

23 find their comments indicate a retaliatory animus that influenced

24 their decision not to recommend plaintiff.

25 Defendants urge that the substantial time lapse between

26 plaintiff's speech and the adverse employment actions precludes a
27

1 finding of causation. They correctly point out that to provide

2 an independent basis for an inference of causation, temporal

3 proximity must be significantly greater (meaning that the time

4 lapse must be shorter than it is in this case). See, e.g.,

5 Morris, 196 F.3d at 113-14 (holding that absent other evidence of

6 retaliatory motivation, no inference of causation follows from

7 fact of adverse action occurring two years after speech). It

8 should be noted that Morris, the case defendants primarily rely

9 on, was an employment termination case. It makes logical sense

10 that if an employer wishes to retaliate by firing an employee, he

11 is likely to do so soon after the event. In a failure to promote

12 case, however, the opportunities for retaliation do not

13 necessarily immediately present themselves. Be that as it may,

14 however, plaintiff here does not rely on temporal proximity as

15 affirmative evidence of causation. He offers instead direct

16 evidence of retaliatory animus discussed above. Further, some of

17 plaintiff's evidence -- namely, Inspector Stewart's evaluation

18 and Chief Marcoe's 1992 reference to the "baggage" of the 1987

19 testimony -- indicates that plaintiff's criticism of the Suffolk

20 County Police may have had a lasting effect on plaintiff's

21 career. In light of this evidence, we cannot conclude that the

22 time lapse, though admittedly lengthy, conclusively establishes

23 lack of causation.

24 Defendants also declare that an inference of causation is

25 not justified because Gallagher said he was not aware of

26 plaintiff's negative statements about the department until after
28

1 the 1997 denial of promotion, and because plaintiff received one

2 discretionary promotion after his 1987 testimony. Yet, a trier

3 of fact does not have to believe Gallagher's denials of

4 knowledge, since in making his 1997 promotion decision Gallagher

5 consulted police chiefs who were aware of both the testimony and

6 the interview. Further, Gallagher's denials of knowledge, even

7 if truthful, are not dispositive because, as noted a moment ago,

8 Gallagher's choice in 1997 was based on recommendations of police

9 chiefs, two of whom had made statements indicative of retaliatory

10 animus. Moreover, Gallagher's asserted lack of knowledge is

11 irrelevant to the remaining denials of promotions and to the 1999

12 transfer decision, as Gallagher admittedly reviewed plaintiff's

13 1987 testimony shortly after the 1997 denial of promotion.

14 Nor does plaintiff's claim of retaliation fail because of

15 his 1989 promotion to deputy inspector. First, no promotions

16 followed the 1992 Newsday interview, the second instance of

17 protected speech. Second, a reasonable juror could find that

18 Commissioner Guido's administration in 1989 had a fairer and more

19 merit-driven promotion policy than Gallagher's administration in

20 1997-1999.

21 As a consequence, we believe plaintiff submitted adequate

22 proof to support a finding that his public criticism of the

23 department affected defendant Gallagher's promotion and transfer

24 decisions.

25 Finally, we reject defendants' argument that the state's

26 interest in regulating Mandell's speech outweighed his interest
29

1 in the speech simply because when he gave his Newsday interview

2 he held the rank of deputy inspector. Defendants advanced no

3 reason why the interview was likely to disrupt the department's

4 operations, nor has our own review of the Newsday article

5 revealed any basis for such a conclusion. See Lewis v. Cowen,

6 165 F.3d 154, 162 (2d Cir. 1999) ("The government bears the

7 burden of demonstrating that the speech threatens to interfere

8 with government operations.").

9 C. Municipal Liability

10 A municipal entity may be liable under 42 U.S.C. § 1983 only

11 if the alleged constitutional violation was caused by the

12 entity's "policy or custom." Monell, 436 U.S. at 694. The

13 "policy or custom" requirement, however, "is intended simply to

14 distinguish acts of the municipality from acts of its employees,

15 in order that municipal liability be limited to conduct for which

16 the municipality is actually responsible." Dangler v. New York

17 City Off Track Betting Corp., 193 F.3d 130, 142 (2d Cir. 1999). 

18 Thus, if the challenged action is directed by an official with

19 "final policymaking authority," the municipality may be liable

20 even in the absence of a broader policy. See Pembaur v. City of

21 Cincinnati, 475 U.S. 469, 481-83 (1986) ("Municipal liability

22 attaches only where the decisionmaker possesses final authority

23 to establish municipal policy with respect to the action

24 ordered."). Here, plaintiff challenges as retaliatory employment

25 decisions made by Gallagher, who, as the Suffolk County police

26 commissioner, had authority to set department-wide personnel
30

1 policies. Gallagher's position provides a sufficient basis for

2 holding the County liable for his adverse decisions with respect

3 to plaintiff.

4 D. Qualified Immunity

5 Under the doctrine of qualified immunity, a government

6 official performing discretionary functions is shielded from

7 liability for civil damages if his conduct did not violate

8 plaintiff's clearly established rights or if it would have been

9 objectively reasonable for the official to believe that his

10 conduct did not violate plaintiff's rights. See, e.g., Lewis,

11 165 F.3d at 166-67 (describing the qualified immunity doctrine). 

12 Where specific intent of a defendant is an element of plaintiff's

13 claim under clearly established law, and plaintiff has adduced

14 sufficient evidence of that intent to defeat summary judgment,

15 summary judgment on qualified immunity grounds is inappropriate. 

16 See Locurto, 264 F.3d at 169-70; Sheppard v. Beerman, 94 F.3d

17 823, 828 (2d Cir. 1996). In the present case retaliatory intent

18 is an element of plaintiff's claim, and we have already noted

19 that plaintiff's evidence of retaliatory animus is sufficient to

20 make defendants' motivation a triable issue of fact. Until that

21 issue is resolved by a factfinder, therefore, the retaliation

22 claim against defendant Gallagher cannot be dismissed on

23 qualified immunity grounds.

24 In sum, we conclude that the district court erred in

25 dismissing Mandell's retaliation claim for lack of evidence of

26 causation. And because defendants' remaining arguments lack
31

1 merit, we must vacate the dismissal of this claim and remand it

2 to the trial court.

3 CONCLUSION

4 For the foregoing reasons, we affirm the dismissal of the

5 Title VII claim against Gallagher in his personal capacity,

6 vacate the district court's judgment in all remaining respects,

7 and remand the case to the district court for further proceedings

8 not inconsistent with this opinion.