Flynn v. Bloomingdale

Opinion

22-1431 Flynn v. Bloomingdale UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 28th day of July, two thousand twenty-three. 4 5 PRESENT: 6 PIERRE N. LEVAL, 7 DENNY CHIN, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 Rita Flynn, 13 14 Plaintiff-Appellant, 15 16 v. No. 22-1431 17 18 Michael Bloomingdale, individually and in his 19 official capacity for the New York State Department 20 of Corrections and Community Supervision, John A. 21 Shipley, individually and in his official capacity for 22 the New York State Department of Corrections and 23 Community Supervision, Daniel Oliver, individually 24 and in his official capacity for the New York State 25 Department of Corrections and Community 26 Supervision, 27 28 Defendants-Appellees. 29 _____________________________________

2

1 FOR PLAINTIFF-APPELLANT: MICHAEL B. RANIS, Michael B. Ranis, Attorney at 2 Law, Goshen, NY. 3 4 FOR DEFENDANTS-APPELLEES: BENJAMIN W. HILL, Capezza Hill LLP, Albany, 5 NY. 6 7 Appeal from a judgment of the United States District Court for the Southern District of

8 New York (Halpern, J.). 9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 10 DECREED that the judgment of the district court entered on June 8, 2022, is AFFIRMED. 11 Plaintiff Rita Flynn (“Plaintiff”) appeals from a judgment of the United States District 12 Court for the Southern District of New York (Halpern, J.), dismissing her claims, which she 13 brought pursuant to 42 U.S.C. § 1983, that she was: (1) retaliated against, in violation of the First 14 Amendment, for engaging in protected speech—namely, through two lawsuits she filed in state 15 and federal court; and (2) not afforded adequate procedural due process in an arbitration hearing 16 in violation of the Fourteenth Amendment. Because we hold that Plaintiff’s previous lawsuits do 17 not constitute protected speech and that Plaintiff received the process she was due, we affirm the 18 judgment of the district court. We assume the parties’ familiarity with the underlying facts, 19 procedural history, and issues on appeal, which we only recount in a limited manner to explain our 20 decision. 21 Procedural History 22 Plaintiff is a former parole officer with the Department of Corrections and Community 23 Supervision (“DOCCS”). She filed two successive lawsuits, a lawsuit in federal court (“Flynn

3

1 I” 1), and a lawsuit in state court (“Flynn II” 2), alleging that she had been demoted from her position 2 (and subjected to other retaliatory behavior) because she had spoken out about the discharge plan 3 of John Doe (“Doe”), a serial sexual offender, and the threat he posed to the community. 4 Plaintiff also filed several grievances concerning DOCCS’s treatment and evaluations of 5 her. Defendant Oliver initiated an investigation into DOCCS’s conduct in response. At some 6 point, however, the focus of the investigation shifted to whether Plaintiff had improperly disclosed 7 confidential information about parolees via her personal email to counsel. Plaintiff subsequently 8 received a Notice of Discipline (“NOD”) informing her that the disclosures violated restrictions 9 on protecting the identities of parolees. The NOD recommended Plaintiff’s termination. 10 Plaintiff grieved the NOD, which culminated in an arbitration hearing regarding 11 Plaintiff’s challenge to her termination. Defendant Bloomingdale represented DOCCS, and 12 Defendant Shipley participated in the hearing. At the start of the hearing, Plaintiff agreed to resign 13 and signed a settlement agreement. Plaintiff did so after Defendants Bloomingdale and Shipley 14 threatened to refer her to prosecution in connection with the disclosures. Thereafter, Plaintiff filed 15 this lawsuit (“Flynn III”).

1 Flynn I alleged First Amendment retaliation and state law public employee whistleblower claims against DOCCS and various DOCCS employees. The district court dismissed the operative complaint in its entirety. It held that Plaintiff’s speech—her warnings about the insufficiencies of Doe’s discharge plan—was not protected and declined to exercise supplemental jurisdiction over the state law claim.

2 Flynn II alleged a state law public employee whistleblower claim against DOCCS. As in Flynn I, Plaintiff alleged that DOCCS demoted her in retaliation for her warning that Doe’s discharge plan was inadequate. Before the case went to trial, however, the parties reached a settlement in a related arbitration (discussed in greater detail above), and the state court dismissed the claim.

1 Discussion 2 I. Standard of Review 3 We review a dismissal under Rule 12(b)(6) de novo, accepting all factual allegations in the 4 complaint as true and drawing all reasonable inferences in the plaintiff’s favor. ATSI Commc’ns, 5 Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). To survive a motion to dismiss, a 6 complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell 7 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2d Cir. 2007). 8 II. First Amendment Claim 9 In Flynn III, Plaintiff contends that Defendants retaliated against her for filing Flynn I and 10 II. Here, unlike in Flynn I and Flynn II, Plaintiff argues that her previous lawsuits, rather than her 11 warnings about Doe’s discharge plan described in the lawsuits, were themselves protected speech 12 under the First Amendment. 3 We are unpersuaded, as we conclude that the Flynn I and II lawsuits 13 were not themselves speech on a matter of public concern. 14 To determine whether a public employee’s speech is protected, we ask “whether the 15 employee spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 16 418 (2006). “If [we] determine[] that the plaintiff either did not speak as a citizen or did not speak 17 on a matter of public concern, ‘the employee has no First Amendment cause of action based on his 18 or her employer’s reaction to the speech.’” Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009) 19 (quoting Garcetti, 547 U.S. at 418).

3 Indeed, in Flynn I, the district court held that Plaintiff’s warnings about Doe’s discharge plan did not constitute protected speech. There, the district court reasoned that although the warnings “undeniably” addressed a matter of public concern, Plaintiff had failed to plausibly allege that she was speaking as a citizen rather than as a DOCCS parole officer. J.A. at 20–21. We thus focus our analysis not on Plaintiff’s warnings (i.e., the speech identified in Flynn I and II, which Plaintiff concedes were made up of “almost identical facts”), but on the lawsuits themselves.

Appellant’s Br. at 4 n.1.

1 “Whether an employee’s speech addresses a matter of public concern is a question of law 2 for the court to decide, taking into account the content, form, and context of a given statement as 3 revealed by the whole record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999). While neither 4 conclusive nor dispositive, the motive of the speaker—for example, whether she is seeking to 5 redress personal grievances or has a broader public purpose—is a factor that can be considered 6 alongside the content of the speech. Sousa, 578 F.3d at 173–75. 7 We have previously held that a lawsuit filed against a public employer may constitute 8 speech on a matter of public concern. See, e.g., Golodner v. Berliner, 770 F.3d 196, 203 (2d Cir. 9 2014) (“[W]e have held that matters implicate the public interest when the plaintiff wanted to 10 debate issues of discrimination, that the plaintiff’s suit sought relief against pervasive or systemic 11 misconduct by a public agency or public officials, or that the plaintiff’s suit was part of an overall 12 effort to correct allegedly unlawful practices or bring them to public attention.” (internal quotation 13 marks and citations omitted and alterations adopted)). In Golodner, we concluded that the 14 plaintiff’s previous lawsuit against the city of New London and several New London police 15 officers constituted speech on a matter of public concern because it was not related “to the 16 conditions of [plaintiff’s] employment” and was instead an “attempt to vindicate his constitutional 17 rights under the Fourth and Fourteenth Amendments in the face of alleged police misconduct 18 directed against him as a private citizen.” Id. at 204. 19 That is not the case here. Flynn I and II sought redress for Plaintiff’s demotion and other 20 forms of retaliation and to secure personal relief for Plaintiff through monetary and injunctive 21 relief. For example, in Flynn I, Plaintiff requested damages and “injunctive relief . . . including 22 reinstatement to her Special Assignment in the Sexual Offenders’ Unit and the reinstatement of 23 overtime compensation that comes with that position.” J.A. at 52. Similarly, in Flynn II, Plaintiff

6

1 requested damages and numerous forms of injunctive relief, all of which were aimed at 2 ameliorating past retaliation against Plaintiff and preventing retaliation against her in the future. 3 Id. at 117–18. Because Flynn I and II addressed Plaintiff’s personal treatment at work, rather than 4 systemic or pervasive misconduct, we conclude that the lawsuits themselves did not constitute 5 speech on a matter of public concern. Accordingly, Flynn I and Flynn II do not constitute protected 6 speech. See Ruotolo v. City of New York, 514 F.3d 184, 189–90 (2d Cir. 2008) (holding plaintiff’s 7 lawsuit was not speech on a matter of public concern because its purpose was to vindicate 8 plaintiff’s personal grievances and the relief sought was personal to him); Ezekwo v. N.Y.C. Health 9 & Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991) (concluding plaintiff’s statements were not on 10 a matter of public concern because they “were personal in nature and generally related to her own 11 situation”). As a result, Plaintiff’s First Amendment retaliation claim fails. 12 III. Due Process Claim 13 We also reject Plaintiff’s claim that Defendants Bloomingdale and Shipley violated her 14 right to procedural due process during the arbitration hearing, as we find that she received all the 15 process she was due. 4 “When reviewing alleged procedural due process violations, the Supreme 16 Court has distinguished between (a) claims based on established state procedures and (b) claims 17 based on random, unauthorized acts by state employees.” Hellenic Am. Neighborhood Action 18 Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996). Plaintiff’s due process claim fails

4 “A procedural due process claim is composed of two elements: (1) the existence of a property or liberty interest that was deprived and (2) deprivation of that interest without due process.” Bryant v. New York State Educ. Dep't, 692 F.3d 202, 218 (2d Cir. 2012). Because we conclude that Plaintiff was afforded adequate due process, we do not reach the argument of Defendants Bloomingdale and Shipley that Plaintiff did not plausibly plead a cognizable deprivation of a liberty or property interest since she resigned and accepted a settlement and thus short-circuited the termination process. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 882 (2d Cir. 1996).

1 regardless of how we classify the conduct of Defendants Bloomingdale and Shipley. 2 If we were to find that the conduct of Defendants Bloomingdale and Shipley was random 3 and unauthorized, “the existence of a meaningful post-deprivation remedy . . . would automatically 4 satisfy procedural due process.” Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 466 (2d 5 Cir. 2006). As Plaintiff concedes, she could have challenged the arbitration by pursuing an Article 6 78 proceeding, a hearing which we have previously held is a meaningful post-deprivation remedy. 7 See Locurto v. Safir, 264 F.3d 154, 175 (2d Cir. 2001) (“An Article 78 proceeding . . . constitutes 8 a wholly adequate post-deprivation hearing for due process purposes.”). She simply chose not to 9 do so. Accordingly, if we were to find that the actions of Defendants Bloomingdale and Shipley 10 were random and unauthorized, the availability of an Article 78 proceeding would satisfy 11 procedural due process. See Hellenic, 101 F.3d at 881. 12 If we were to find that Defendants Bloomingdale and Shipley acted under established state 13 procedures, our task would be to determine whether Plaintiff received a pretermination hearing 14 that satisfied the “essential requirements of due process.” Cleveland Bd. of Educ. v. Loudermill, 15 470 U.S. 532, 546 (1985) (holding when a public employee is terminated, procedural due process 16 requires a pretermination hearing). “The essential requirements of due process” in this context are 17 “notice and an opportunity to respond.” Id.; see also Locurto, 264 F.3d at 174. 18 Prior to the arbitration, Plaintiff received timely notice of the charges against her via the 19 NOD. She also received an opportunity to respond. For instance, at the arbitration Plaintiff was 20 represented by counsel and permitted to present evidence and call witnesses in her defense. The 21 fact that Plaintiff chose to end the arbitration and to settle before she could take advantage of these 22 procedures does not mean she was deprived of process. Thus, if we were to find that the conduct 23 of Defendants Bloomingdale and Shipley was part of an established state procedure, Plaintiff’s

8

1 claim would fail because she received all the procedural process that was due. See Loudermill, 2 470 U.S. at 547–48; Locurto, 264 F.3d at 174. 3 Conclusion 4 We have considered all of Plaintiff’s remaining arguments and conclude they are without 5 merit. For the foregoing reasons, we AFFIRM the judgment of the district court.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk of Court