Weslowski v. Zugibe , 626 F. App'x 20 ( 2015 )

15-1420-cv
Weslowski v. Zugibe et al.
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of December, two thousand fifteen.
PRESENT: JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
JOHN L. WESLOWSKI,
Plaintiff-Appellant, No. 15-1420-cv
v.
PATRICIA ZUGIBE, in her official capacity as County
Attorney, and in her individual capacity, JEFFREY J.
FORTUNATO, in his official capacity as Deputy
County Attorney, and in his individual capacity,
ROCKLAND COUNTY, municipal corporation,
Defendants-Appellees.
FOR JOHN L. WESLOWSKI: John L. Weslowski, Schenectady, NY, pro
se.
FOR DEFENDANTS-APPELLEES: Robert B. Weissman, Saretsky Katz &
Dranoff, L.L.P., New York, NY.
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Appeal from the judgment of the United States District Court for the Southern District of
New York (Kenneth M. Karas, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Appellant John L. Weslowski (“Weslowski”), an attorney proceeding pro se, appeals the
District Court’s dismissal of claims under the False Claims Act (“FCA”), 31 U.S.C. § 3730(h), and 42
U.S.C. §§ 1983 and 1985, arising out of the alleged wrongful termination of his employment as a
Senior Assistant County Attorney for Rockland County by defendants in 2009. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
“We review de novo a district court’s dismissal of a complaint pursuant to [Federal Rule of
Civil Procedure] 12(b)(6), construing the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007),
and “allow[ ] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in
the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice,” and pleadings that “are no more than conclusions[] are not entitled to the
assumption of truth.” Id. at 678–79. Finally, “[i]t is well settled that we may affirm on any grounds
for which there is a record sufficient to permit conclusions of law, including grounds not relied
upon by the district court.” Olsen v. Pratt & Whitney Aircraft, Div. of United Techs. Corp., 136 F.3d 273,
275 (2d Cir. 1998) (internal quotation marks omitted).
I. Sections 1983 and 1985 Claims; Substantive Due Process Claims; Supplemental
Jurisdiction; Leave to Amend
Upon review, we conclude that the District Court correctly held that Weslowski failed to
state plausible claims to relief under sections 1983 and 1985 for violations of his First Amendment
rights, procedural due process rights, and equal protection rights, because his passive consumption
of sexually explicit material at work was not speech on a matter of public concern, see Weslowski v.
Zugibe, 14 F. Supp. 3d 295, 313–14 (S.D.N.Y. 2014) (Weslowski I); the availability of an adequate
post-deprivation hearing—here, an Article 78 proceeding—satisfied the requirements of due
process, see id. at 314–17; Weslowski did not allege any direct evidence of discriminatory intent; and
his allegations did not raise an inference of discrimination based on his sexual orientation, see id. at
317–21; Weslowski v. Zugibe, 96 F. Supp. 3d 308, 318–22 (S.D.N.Y. 2015) (Weslowski II).
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The District Court was likewise correct in holding that Weslowski failed to state a
substantive due process claim because there is no constitutionally protected liberty interest in gaining
access to sexually explicit material in the workplace without consequence. See Weslowski II, 96 F.
Supp. 3d at 322–24. In addition, the District Court acted within its discretion in declining to exercise
supplemental jurisdiction over the remaining state law claims after dismissing the federal causes of
action, and in dismissing Weslowski’s amended complaint without granting leave to amend a second
time; as an attorney, Weslowski was not entitled to the “special solicitude” normally afforded pro se
litigants. See id. at 315, 324; Weslowski I, 14 F. Supp. 3d at 321–22.
II. The Retaliation Claim
With respect to Weslowski’s retaliation claim under section 3730(h) of the FCA, however,
we affirm on different grounds than those the District Court stated. Instead, we dismiss Weslowski’s
retaliation claim because we conclude that he failed to allege that his employer was aware that he was
engaged in conduct that is protected by section 3730(h). We therefore do not reach the questions of
whether the retaliation claim was barred by section 3730(h)(3)’s three-year statute of limitations or
whether section 3730(h) can apply to post-employment retaliation.
At the time of the alleged retaliation against Weslowski, the FCA’s anti-retaliation provision,
section 3730(h), provided in relevant part that
[a]ny employee . . . shall be entitled to all relief necessary to make that
employee . . . whole, if that employee . . . is discharged, demoted,
suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of employment
because of lawful acts done by the employee . . . on behalf of the
employee . . . or associated others in furtherance of other efforts to
stop 1 or more violations of [the FCA].
Fraud Enforcement Recovery Act, Pub. L. No. 111-21, § 4(d), 123 Stat. 1617, 1624–25 (2009)
(codified at 31 U.S.C. § 3730(h)(1)).1 Although this Court has yet to articulate a test for deciding
when a plaintiff has set forth a claim for retaliation under section 3730(h), we need not do so here.
Even assuming that Weslowski engaged in protected activity, he did not adequately allege that the
1
Section 3730(h)(1) was amended, effective July 22, 2010, by replacing “or agent on behalf of
the employee, contractor, or agent or associated others in furtherance of other efforts to stop 1 or
more violations of this subchapter” with “agent or associated others in furtherance of an action
under this section or other efforts to stop 1 or more violations of this subchapter.” Dodd-Frank
Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1079A, 124 Stat. 1376,
1390, 2079 (2010).
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County was aware that his refusal to approve the contract at issue was in furtherance of efforts to
prevent a violation of the FCA.
Weslowski’s purported protected activity involved his alleged refusal to approve a proposed
contract, which “was to be funded by” the United States Department of Housing and Urban
Development (“HUD”), between Rockland County and a contractor, Spring Valley NAACP. A-34–
36. According to Weslowski’s amended complaint, he refused to approve the contract because he
concluded that “the proposed contractor was an unincorporated association of unnamed individuals
loosely affiliated as a local chapter of its national ‘parent’ (only the ‘parent’ being a corporation), and
that the proposed contractor possessed utterly no legal authority whatsoever as a chapter to bind
that corporate national ‘parent.’” Id. at 35–36. By refusing to approve the contract, he claims that he
prevented the contractor’s signatory, its President, from “conceal[ing] the material fact that the
‘President’ did not actually possess the signatory authority for each and every unnamed individual
member of the unincorporated association that a signature so styled would purport to have.” Id. at
37. But Weslowski does not allege that he did anything that would have put the County on notice
that his refusal to approve the contract was in furtherance of an effort to stop a violation of the
FCA. Accordingly, he failed to allege that he was fired or otherwise discriminated against “because
of” lawful acts done in furtherance of efforts to stop a violation of the FCA. 31 U.S.C. § 3730(h).
Weslowski has therefore failed to state an FCA retaliation claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6).
CONCLUSION
We have considered all of the plaintiff-appellant’s arguments and find them to be without
merit. The District Court’s dismissal of the claims under sections 1983 and 1985, and dismissal of
the claims of violations of substantive due process are affirmed substantially for the reasons stated
by the District Court in Weslowski I and Weslowski II, as are the District Court’s orders declining to
exercise supplemental jurisdiction over the remaining state law claims and leave to amend the
complaint. Finally, we affirm the District Court’s dismissal of the retaliation claim for the reasons
stated above.
Accordingly, the March 31, 2015, judgment of the District Court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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