Allegations that fellow officers discriminated against Hispanics can qualify as speech made as a citizen on a matter of "public concern." In 1994, Sergeant Edwin Garcia, who was off duty, allegedly observed a scuffle between officers and a restaurant owner. Garcia allegedly called the mayor and did not immediately respond to the scene. Afterward, Garcia held a press conference and alleged that bias caused police to direct their attention toward Hispanics. Internal affairs investigated and concluded that Garcia violated a code of conduct, because he did not intervene to help fellow officers or, alternatively, to prevent excessive use of force. Internal affairs also investigated, because Garcia allegedly informed an editor that he would beat Reporter Brian Garnett, if he ever saw him. Although Garcia ranked third out of 46 individuals who took a promotional exam, he was not promoted. Garcia sued, alleging employment discrimination, because he was not promoted to lieutenant. Garcia also alleged that Chief Joseph Croughwell retaliated, because Garcia spoke to the press about alleged use of excessive force against a Hispanic. The District Court granted judgment to the defendants, and Garcia appealed. Garcia failed to introduce evidence that nondiscriminatory reasons for investigating and declining to promote were pretextual, or that race or national origin motivated the decisions. "Without any evidence that could allow a reasonable jury to find that defendants' proffered explanations for either the refusal to promote or the [internal affairs'] investigations were pretextual," wrote the 2nd Circuit, "Garcia's discrimination claims fail." The District Court erred when it found that Garcia's statements to the press about whether the police were discriminating against Hispanics were not about matters of public concern. "To hold that these statements were not a matter of public concern," wrote the 2nd Circuit, "would unreasonably allow public employers to innoculate themselves from First Amendment retaliation claims simply by arguing that the employee spoke about an issue of public concern for `personal' reasons." Because defendant Croughwell was entitled to qualified immunity, the 2nd Circuit affirmed the judgment of the District Court, Thompson, J. Juri Taalman and Timothy Brignole represented the plaintiff. Helen Apostolidis represented the defendant.

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