Norton v. N.Y. State Dep't of Corr. Servs. , 565 F. App'x 31 ( 2014 )

13-1962-cv
Norton v. N.Y. State Dep’t of Corr. Servs.
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
ASUMMARY 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 9th day of May, two thousand fourteen.
PRESENT: ROBERT D. SACK,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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GILSOMENA M. NORTON,
Plaintiff-Appellant,
v. No. 13-1962-cv
DENNIS BRESLIN, KATHLEEN GERBING, LT. R.
BOURGELAIS, FELIX EZEKWE, M.D., each being sued
in their individual capacity,
Defendants-Appellees,
NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES (NYSDOCS), DEPUTY
SUPERINTENDENT LAWRENCE ZWILLINGER,
NURSE ADMINISTRATOR SHARON MCGILVARY,
each being sued in their individual and official capacity,
SUPERINTENDENT DENNIS BRESLIN, DEPUTY
SUPERINTENDENT KATHLEEN GERBING, LT. R.
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BOURGELAIS, FACILITY HEALTH SERVICES
DIRECTOR FELIX EZEKWE, M.D., each being sued in
their official capacity,
Defendants. *
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APPEARING FOR APPELLANT: ANTHONY MAHONEY, (Linda M. Cronin,
Christopher Bellistri, on the brief), Cronin &
Byczek LLP, Lake Success, New York.
APPEARING FOR APPELLEES: JASON HARROW (Barbara D. Underwood,
Solicitor General, Richard P. Dearing, Deputy
Solicitor General, on the brief), for Eric T.
Schneiderman, Attorney General of the State of
New York, New York.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Colleen McMahon, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on April 17, 2013, is AFFIRMED.
Plaintiff Gilsomena M. Norton appeals from the dismissal of her 42 U.S.C. § 1983
claim against defendants Dennis Breslin, Kathleen Gerbing, Lt. R. Bourgelais, and Felix
Ezekwe, M.D., sued in their individual capacities for unlawful retaliation in violation of the
First Amendment while Norton was an employee of the New York State Department of
Correctional Services.1 She alleges that the retaliation was based on her complaints of
*
The Clerk of Court is directed to amend the official caption as shown above.
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The district court also dismissed Norton’s claims against defendants in their official
capacities because state officials in their official capacity are not “persons” within the
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race-based discrimination, under-staffing, forced-overtime, and violations of the Health
Insurance Portability and Accountability Act (“HIPAA”) Pub. L. 104–191, 110 Stat. 1936
(codified in scattered sections of 18, 26, 29, & 42 U.S.C.). We review de novo the
dismissal of a complaint under Fed. R. of Civ. P. 12(b)(6), accepting all factual allegations
as true and drawing all reasonable inferences in favor of Norton. See Fahs Constr. Grp.,
Inc. v. Gray, 725 F.3d 289, 290 (2d Cir. 2013). We assume the parties’ familiarity with
the facts and record of the underlying proceedings, which we reference only as necessary to
explain our decision to affirm.
“Regardless of the factual context, we have required a plaintiff alleging retaliation
to establish speech protected by the First Amendment.” Weintraub v. Bd. of Educ., 593
F.3d 196, 200 (2d Cir. 2010) (internal quotation marks omitted). For speech by a public
employee to be protected by the First Amendment, the employee must be “speaking as a
citizen on a matter of public concern.” Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012)
(internal quotation marks and ellipsis omitted).
Whether speech “addresses a matter of public concern is a question of law for the
court to decide.” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008) (internal
quotation marks omitted). To answer this question, “we evaluate whether the speech
meaning of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);
accord Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012). Norton does not challenge
this conclusion, and we therefore treat these official capacity claims as abandoned on
appeal. See Lederman v. N.Y. City Dep’t of Parks & Recreation, 731 F.3d 199, 203 n.1
(2d Cir. 2013).
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relates to any matter of political, social, or other concern to the community, and whether
the speech was calculated to redress personal grievances or whether it had a broader public
purpose.” Hoyt v. Andreucci, 433 F.3d 320, 330 (2d Cir. 2006) (internal quotations marks
and citations omitted). “[M]ere employee grievances do not qualify as matters of public
concern.” Id. There is no categorical approach, however, “that places all speech aimed
at redressing personal grievances in the employment context beyond the scope of the First
Amendment.” Huth v. Haslun, 598 F.3d 70, 74 (2d Cir. 2010). Rather, “[w]hether an
employee’s speech addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by the whole record.”
Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (internal quotation marks omitted).
Norton, who is African-American, complained that she was denied advancement in
favor of a white employee with less seniority, and that specific white employees were
treated better than she was. This is a quintessential employee grievance that may well be
protected by the Equal Protection Clause, see Ciambriello v. Cnty. of Nassau, 292 F.3d
307, 316 (2d Cir. 2002), but not by the First Amendment. To be sure, a complaint of
“system-wide discrimination” can raise a public concern, but where the complaint is
“personal in nature and generally related to [the employee’s] own situation,” it is
unprotected by the First Amendment. Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143
(2d Cir. 1993) (internal quotation marks omitted). Washington v. County of Rockland,
373 F.3d 310 (2d Cir. 2004), on which Norton relies, warrants no different conclusion.
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There, we identified a public concern in an alleged practice or policy of selectively
subjecting African-Americans to disciplinary proceedings on account of their race, even
though victims’ complaints also stated personal grievances. Id. at 313–14, 320. Here,
however, Norton’s complaints of personal discrimination are not connected to any broader
policy or practice and, thus, do not raise a public concern of systemic discrimination. Like
the district court, we conclude that her complaints are not First Amendment protected
speech.
Nor does Norton allege that she complained about general HIPAA violations; rather
she alleges that she reminded defendants of HIPAA disclosure protections when they
asked her to give information concerning her own off-duty provision of health care to her
mother and other patients. Nothing in this alleged statement reached beyond a
“generalized public interest in the fair or proper treatment of public employees,” which we
have said is “not enough” to trigger First Amendment protection. Ruotolo v. City of New
York, 514 F.3d at 190. Indeed, Norton admits that she was complaining of “personal
violations of her and/or her mother’s medical and health information.” Appellant’s Br.
19–20. Nevertheless, she argues that, because she complained about more general
HIPAA violations while working at a different facility, the court should infer that her
HIPAA complaint here at issue concerned general patient confidentiality as well as her
own. Precedent is to the contrary. “[R]etaliation against the airing of generally personal
grievances is not brought within the protection of the First Amendment by the mere fact
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that one or two of a public employee’s comments could be construed broadly to implicate
matters of public concern.” Ruotolo v. City of New York, 514 F.3d at 190 (internal
quotation marks and alteration omitted).
Finally, while Norton’s alleged complaints of forced overtime and under-staffing
might implicate concerns for staff and patient safety, read in context, it is apparent that
their primary focus is Norton’s own work situation. See Jackler v. Byrne, 658 F.3d 225,
236 (2d Cir. 2011). Specifically, Norton complained of being forced to work overtime
during, and immediately after, nine 16-hour days over a two-week period. Similarly, she
complained of understaffing within days of informing her employer that she intended to
file grievances related to her schedule. Even drawing all reasonable inferences in
Norton’s favor, these complaints assert primarily personal grievances. See Ruotolo v.
City of New York, 514 F.3d at 190; see also Appellant’s Br. 15 (admitting mixed
motivations in that “she was concurrently concerned for her own well-being” when
complaining about staffing).
That conclusion is only reinforced by the non-public form of Norton’s complaints.
“Nothing in the complaint suggests that [she] made a single public statement or ever
intended to make such a statement.” Fahs Constr. Grp., Inc. v. Gray, 725 F.3d at 291
(noting form of speech was “exclusively nonpublic” where plaintiff “availed itself of a
dispute resolution mechanism entirely internal to [the Department of Transportation]”).
Norton communicated her staffing concerns only to her supervisor, and her overtime
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concerns only to management and the New York State Department of Labor, with which
she also filed a separate complaint for overtime pay. In light of the context and form of
her complaints, we conclude, as the district court did, that they did not address a matter of
public concern and were therefore unprotected by the First Amendment.
We have considered the remainder of Norton’s arguments and consider them to be
without merit. The order of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
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