Smeraldo v. City of Jamestown, 512 F. App'x 32

Smeraldo, a Jamestown Police Department officer for nearly a decade, faced disciplinary charges in 2006 and entered into a settlement with a demotion and suspension without pay.
In 2007, after two comments—one at a funeral home and one during a line-up—Smeraldo faced a new round of disciplinary proceedings under NY Civil Service Law § 75 with counsel on both sides.
A hearing officer found no proof for the funeral home comment but sustained the line-up comment, recommending termination, which Jamestown implemented on November 28, 2007.
Smeraldo appealed to the New York Supreme Court Appellate Division, which affirmed the termination in 2008 (Smeraldo v. Rater, 864 N.Y.S.2d 596).
Smeraldo filed suit in federal court in 2009 alleging First and Fourteenth Amendment violations, breach of contract, and tortious interference; the district court granted summary judgment for defendants in 2011.
The district court relied in part on collateral estoppel and considered issues raised in defendants’ reply brief, leading to appellate review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment was proper on all pleaded claims.	Smeraldo contends the record supports triable issues of fact and that the district court erred in granting summary judgment.	Defendants contend collateral estoppel and lack of factual support justify summary judgment.	Affirmed summary judgment; no genuine issues of material fact remain.
Whether the district court properly allowed defendants’ reply brief and sua sponte collateral estoppel without additional briefing.	Smeraldo argues improper consideration of new issues and lack of opportunity to brief.	Defendants assert court acted within discretion to raise collateral estoppel and accept a reply brief.	No abuse of discretion; district court properly addressed collateral estoppel and reply brief issues.
Whether Smeraldo's hostile work environment claim was precluded by collateral estoppel or could proceed.	Smeraldo maintains the conduct at issue created a hostile environment regardless of the hearing officer’s findings.	Defendants argue lack of evidence of severe, pervasive conduct and differential treatment precludes a hostile environment claim.	Hostile environment claim not precluded on the record; the district court’s reasoning was reconsidered, and the overall judgment upheld (claim not stated as actionable).

Harris v. Forklift Sys., Inc., 510 U.S. 17 (Supreme Court 1993) (pervasive conduct must be sufficiently severe or pervasive)
Town of Southhold v. Town of E. Hampton, 477 F.3d 38 (2d Cir. 2007) (appropriateness of fact-finding on summary judgment)
Curry v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003) (district court may raise collateral estoppel sua sponte and dismiss on that basis)
Pfrommer v. City of New York, 148 F.3d 57 (2d Cir. 1998) (use of collateral estoppel in summary judgment context)
Hollander v. Am. Cyanamid Co., 172 F.3d 192 (2d Cir. 1999) (affidavits not based on personal knowledge may be treated as argument)
Burg v. Gosselin, 591 F.3d 95 (2d Cir. 2010) (summary judgment standards and de novo review guidance)