Platt v. Incorporated Village of Southampton

391 F. App'x 62
CourtCourt of Appeals for the Second Circuit
DecidedAugust 30, 2010
DocketNo. 09-4395-cv
StatusPublished
Cited by16 cases

This text of 391 F. App'x 62 (Platt v. Incorporated Village of Southampton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Platt v. Incorporated Village of Southampton, 391 F. App'x 62 (2d Cir. 2010).

Opinion

SUMMARY ORDER

Plaintiff Brian Platt brought this action against the Incorporated Village of Southampton and several of its officials (jointly, “defendants”) alleging, among other things, discrimination and retaliation in violation of (1) his rights to free speech, equal protection of the laws and due process of law under the United States Constitution pursuant to 42 U.S.C. § 1983; the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112(b) and 12203(a); and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The District Court granted defendants’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Platt filed a timely appeal of that order. We assume the parties’ familiarity with the facts, procedural history and issues raised on appeal.

We review de novo a District Court’s dismissal for failure to state a claim, see Fed.R.Civ.P. 12(b)(6), assuming all well-pleaded, nonconclusory factual allegations in the complaint to be true, see Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009).

A. Platt’s First Amendment Claim

Platt claims that defendants’ conduct, in response to his decision to report an allegedly improper relationship between then-Police Lt. William Wilson, Jr. and Seasonal Police Officer Kim McMahon, constituted retaliation in violation of his right to free speech under the First [64]*64Amendment. The District Court concluded that because Platt discussed his concerns with Village Trustee Harald Steudte pursuant to his “official duties” as a police officer — and not in his private capacity as a citizen — his communication did not amount to protected speech under the First Amendment. We agree.

“[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). It is well established, however, that “a public employee speaking in his official capacity is not speaking as a citizen for First Amendment purposes,” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir.2008) (citing Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951). Indeed, “speech can be ‘pursuant to’ a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.” Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir.2010).

In this case, even read in the light most favorable to Platt, the record makes clear that, to the extent Platt’s conversation with Steudte raised issues of public concern, those issues related solely to his work as a police officer and the adverse impact of Lt. Wilson’s relationship with Officer McMahon on public safety concerns in Southampton. We cannot say that a police officer speaking to a public official about his concerns over public safety issues is speaking in his capacity as a citizen, as opposed to his capacity as a police officer.

B. Platt’s ADA and Title VII Claims

Platt argues the imposition of General Order 83 (“G083”) constitutes retaliation and discrimination in violation of the ADA and Title VII. The District Court concluded that because G083 did not constitute a “materially adverse action,” Platt’s claim falls short of establishing a prima facie case of retaliation or discrimination under the ADA, 42 U.S.C. §§ 12112(b) and 12203(a), or Title VII, 42 U.S.C. § 2000a1 Here, again, we agree.

“Actions are materially adverse if they are harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination [or retaliation].” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.2010) (internal quotation marks omitted). The mere fact that Platt brought the instant claim in spite of G083 does not, of course, suggest that the order could not have dissuaded a reasonable employee from bringing a claim under the ADA or Title VII. In this case, however, G083 was issued long after Platt went on medical leave and applied equally to all officers on leave of duty. We are unprepared to say that no generally applicable order could constitute “materially adverse action” against an employee. However, the requirement that all officers on leave regularly report to their supervisors and be available throughout the course of the day, while certainly an added inconvenience, does not constitute a materially adverse employment action against Platt.

C. Platt’s Fourteenth Amendment Claims

Platt also claims that G083 deprived him of his right to substantive due [65]*65process and equal protection of the laws under the Fourteenth Amendment. These arguments are without merit. Platt has failed to allege a single instance in which G08S actually infringed his liberty interests. He asserts only that G088 assumes the power to do so. He cannot predicate a substantive due process claim on such speculation.

Even if Platt could allege a specific instance of personal hardship arising from the enforcement of G083, it is unlikely that it would rise to the sort of cognizable constitutional deprivation on which his claim must rest. We intimate no view as to whether G083 represents a sound policy judgment by the Southampton Police Department. We hold only that there is no question that “nothing in [G083] ‘shocks the conscience’ or suggests a ‘gross abuse of governmental authority.’ ” Kuck v. Danaher, 600 F.3d 159, 167 (2d Cir.2010) (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forcing an emetic solution through a tube into a defendant’s stomach against his will in order to induce vomiting violated his right to substantive due process under the 14th Amendment), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Natale v. Town of Ridgefield, 170 F.3d 258

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391 F. App'x 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/platt-v-incorporated-village-of-southampton-ca2-2010.