Miller v. New York City Department of Education ( 2015 )


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  •      14-4685
    Miller v. NYC Dep’t of Educ.
    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
    2       for the Second Circuit, held at the Thurgood Marshall United
    3       States Courthouse, 40 Foley Square, in the City of New York,
    4       on the 19th day of November, two thousand fifteen.
    5
    6       PRESENT: DENNIS JACOBS,
    7                PIERRE N. LEVAL,
    8                GERARD E. LYNCH,
    9                              Circuit Judges.
    10
    11       - - - - - - - - - - - - - - - - - - - -X
    12       ADAM MILLER,
    13                Plaintiff-Appellant,
    14
    15                    -v.-                                               14-4685
    16
    17       NEW YORK CITY DEPARTMENT OF EDUCATION,
    18       OLGA LIVANIS, TINA YU, JULIA
    19       CUNNINGHAM, JARED ROSOFF, and BRENDAN
    20       ALFIERI,
    21                Defendants-Appellees.
    22       - - - - - - - - - - - - - - - - - - - -X
    23
    24       FOR APPELLANT:                        Alane E. Wolin, Wolin & Wolin,
    25                                             Jericho, NY.
    26
    27       FOR APPELLEES:                        Michael J. Pastor, Senior
    28                                             Counsel, Cecilia Chang, of
    1
    1                              counsel, for, Zachary Carter,
    2                              Corporation Counsel of the City
    3                              of New York, NY.
    4
    5        Appeal from a judgment of the United States District
    6   Court for the Southern District of New York (Buchwald, J.).
    7
    8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    9   AND DECREED that the judgment of the district court be
    10   AFFIRMED.
    11
    12        Plaintiff Adam Miller appeals from the judgment of the
    13   United States District Court for the Southern District of
    14   New York (Buchwald, J.), granting defendants-appellees’
    15   motion to dismiss the complaint. We assume the parties’
    16   familiarity with the underlying facts, the procedural
    17   history, and the issues presented for review.
    18
    19        Miller challenges the ruling that his allegations of
    20   constitutional violations under 42 U.S.C. §§ 1983 and
    21   1985(3) fail to state a claim.1 Plaintiff claims (1) that
    22   he was retaliated against for exercising his free speech
    23   rights, (2) that the discipline he faced was not imposed on
    24   other teachers in violation of the Equal Protection Clause,
    25   and (3) that his procedural and substantive due process
    26   rights were violated. The claims are wholly without merit.
    27
    28        1. “Whether public employee speech is protected from
    29   retaliation under the First Amendment entails two inquiries:
    30   (1) ‘whether the employee spoke as a citizen on a matter of
    31   public concern’ and, if so, (2) ‘whether the relevant
    32   government entity had an adequate justification for treating
    33   the employee differently from any other member of the
    34   general public.’”   Ruotolo v. City of New York, 
    514 F.3d 35
      184, 188 (2d Cir. 2008) (quoting Garcetti v. Ceballos, 547
    
    36 U.S. 410
    , 418 (2006)). “Whether an employee's speech
    37   addresses a matter of public concern is a question of law
    38   for the court to decide, taking into account the content,
    1
    The district court also concluded that plaintiff
    had waived his claims in a stipulation to resolve a prior §
    3020-a proceeding, which is an extensive hearing and appeal
    process for disciplining tenured teachers and administrators
    in the New York state school system. However, we assume
    without deciding that the stipulation was ambiguous and that
    the instant claims were not waived.
    2
    1   form, and context of a given statement as revealed by the
    2   whole record. The heart of the matter is whether the
    3   employee's speech was calculated to redress personal
    4   grievances or whether it had a broader public purpose.”
    5   
    Ruotolo, 514 F.3d at 189
    (citation and internal quotation
    6   marks omitted).
    7
    8        Plaintiff’s retaliation claim fails because the speech
    9   alleged did not address a matter of public concern and was
    10   focused entirely on defendants’ treatment of the plaintiff
    11   alone. Plaintiff argues that his allegations reveal public
    12   wrongdoing or corruption and thus are matters of public
    13   concern. However, unlike a typical public corruption case
    14   with broad impact, the only victim of defendants’ alleged
    15   actions here is the plaintiff himself. See 
    Id. at 190
    (“A
    16   generalized public interest in the fair or proper treatment
    17   of public employees is not enough.”). Because the speech
    18   that forms the core of the plaintiff’s retaliation claim
    19   does not address a matter of public concern, the claim
    20   fails.
    21
    22        2. Plaintiff alleges his equal protection rights were
    23   violated; but “the Equal Protection Clause does not apply to
    24   a public employee asserting a violation of the Clause under
    25   a ‘class of one’ theory.” Appel v. Spiridon, 
    531 F.3d 138
    ,
    26   139 (2d Cir. 2008) (citing Engquist v. Oregon Dep't of Agr.,
    27   
    553 U.S. 591
    , 605-09 (2008). Plaintiff does not allege that
    28   he is a member of a protected group; rather, the equal
    29   protection claim amounts to a theory that Miller was
    30   unfairly “singled out” for discipline that was not visited
    31   on other teachers who were similarly situated. Because the
    32   equal protection claim rests on a “class of one” theory, it
    33   fails.
    34
    35        3. Plaintiff proposes novel legal theories to suggest
    36   that his due process rights were violated both procedurally
    37   and substantively.
    38
    39        a. Plaintiff alleges that his procedural due process
    40   rights were violated when defendants did not adhere to the
    41   various “procedures, policies, rules and regulations and
    42   contractual provisions in a fair and even-handed manner and
    43   without regard to personal motives.” Appellant’s Brief at
    44   63. To state a procedural due process claim, plaintiff must
    45   allege a property right with a source other than the
    46   Constitution, such as a state or federal statute. O’Connor
    47   v. Pierson, 
    426 F.3d 187
    , 196 (2d Cir. 2005). To invoke
    3
    1   procedural due process, a plaintiff must seek “to protect
    2   something more than an ordinary contractual right.” S & D
    3   Maint. Co. v. Goldin, 
    844 F.2d 962
    , 966 (2d Cir. 1988).
    4   “Rather, procedural protection is sought in connection with
    5   a state's revocation of a status, an estate . . . [such as]
    6   tenure.” 
    Id. If such
    a property right is found, we must
    7   determine whether that property right “constitutes a
    8   property interest for purposes of the Fourteenth Amendment.”
    9   Town of Castle Rock, Colo. v. Gonzales, 
    545 U.S. 748
    , 756
    10   (2005).
    11
    12        Plaintiff does not complain of a revocation of tenure.
    13   Rather, he asserts that he had a property interest in
    14   certain specific disciplinary procedures set forth in a
    15   collective bargaining agreement. Such “ordinary contractual
    16   right[s],” S & D 
    Maintenance, 844 F.2d at 966
    , do not
    17   constitute property interests. Thus, the plaintiff has
    18   failed to state a claim for procedural due process
    19   violations.
    20
    21        b. Plaintiff alleges that the uneven enforcement of
    22   contractual rights also violated his substantive due process
    23   rights. However, “where a specific constitutional provision
    24   prohibits government action, plaintiffs seeking redress for
    25   that prohibited conduct in a § 1983 suit cannot make
    26   reference to the broad notion of substantive due process.”
    27   Velez v. Levy, 
    401 F.3d 75
    , 94 (2d Cir. 2005). “For a
    28   substantive due process claim to survive a Rule 12(b)(6)
    29   dismissal motion, it must allege governmental conduct that
    30   ‘is so egregious, so outrageous, that it may fairly be said
    31   to shock the contemporary conscience.’” 
    Id. at 93-94
    32   (quoting County of Sacramento v. Lewis, 
    523 U.S. 833
    , 847
    33   n.8 (1998)).
    34
    35        All of the plaintiff’s substantive due process
    36   allegations are subsumed by allegations that the same
    37   conduct violated other, more specific, constitutional
    38   provisions, i.e., retaliation for protected speech and the
    39   equal protection clause. See 
    Velez, 401 F.3d at 94
    (“[W]hat
    40   would serve to raise defendant's actions beyond the wrongful
    41   to the unconscionable and shocking are facts which, if
    42   proven, would constitute, in themselves, specific
    43   constitutional violations.”). But even if his allegations
    44   were not duplicitous, nothing about the plaintiff’s
    45   workplace grievances or offended feelings “shocks the
    46   conscience.” Accordingly, plaintiff’s substantive due
    47   process claims fail.
    4
    1
    2
    3        For the foregoing reasons, and finding no merit in
    4   plaintiff’s other arguments, we hereby AFFIRM the judgment
    5   of the district court.
    6
    7                              FOR THE COURT:
    8                              CATHERINE O’HAGAN WOLFE, CLERK
    9
    5