Flynn v. Bloomingdale ( 2023 )


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  •      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   _____________________________________
    30
    31
    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
    2
    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.
    3
    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.
    4
    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
    5
    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).
    6
    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
    7
    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
    8