Chick v. County of Suffolk , 546 F. App'x 58 ( 2013 )

13-1089-cv
Chick v. County of Suffolk, 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 6th day of December,
two thousand thirteen.
PRESENT:
ROBERT D. SACK,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
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JEFFREY CHICK,
Plaintiff-Appellant,
-v.- No. 13-1089-cv
COUNTY OF SUFFOLK, SUFFOLK COUNTY DEPARTMENT OF PUBLIC
WORKS, LOUIS CALDERONE, Deputy Commissioner, GEORGE SCHMIDT,
Director, Department of Public Works, KEVIN SPENCE, Assistant
Director, Department of Public Works, MARK PATRIZO, Custodial
Worker, JAMES MORRERO, Custodial Worker,
Defendants-Appellees,
AME UNION, DANIEL FARRELL, First President, AME,
Defendants.
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FOR APPELLANT: Andrew J. Schatkin, Jericho, NY.
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FOR APPELLEES: John R. Petrowski, Assistant County Attorney,
for Dennis M. Brown, Suffolk County
Attorney, Hauppauge, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Wexler, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Jeffrey Chick appeals from the district court’s decision granting
Defendants-Appellees’ motion to dismiss his amended complaint. We assume the parties’ familiarity
with the underlying facts, the procedural history, and the issues presented for review.
We review de novo a district court’s decision dismissing a complaint under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. See Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d
Cir. 1997). To survive a motion to dismiss, the complaint must plead enough “factual content that
allows 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). “We are not, however, bound to accept
conclusory allegations or legal conclusions masquerading as factual conclusions.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted).
The amended complaint alleges claims pursuant to 42 U.S.C. § 1983 for discriminatory
discharge and hostile work environment on the basis of Chick’s Jewish faith and his purported
disability. Section 1983 employment discrimination claims asserted as equal protection violations are
evaluated under the same standards as Title VII claims. See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d
206, 225 (2d Cir. 2004). These claims are also subject to the burden-shifting framework set forth in
McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Sorlucco v. N.Y.C. Police Dep’t, 888 F.2d 4, 7 (2d Cir.
1989). To state a prima facie case of discriminatory discharge under Title VII and under the Equal
Protection Clause, asserted via Section 1983, “the plaintiff must show (1) that he belongs to a
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protected class; (2) that he was performing his duties satisfactorily; (3) that he was discharged; and
(4) that his discharge occurred under circumstances giving rise to an inference of discrimination on
the basis of his membership in that class.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.
1994). Claims based on a hostile work environment require the plaintiff to plead facts that
demonstrate “(1) that [his] workplace was permeated with discriminatory intimidation that was
sufficiently severe or pervasive to alter the conditions of [his] work environment, and (2) that a
specific basis exists for imputing the conduct that created the hostile environment to the employer.”
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (alterations in original; internal quotation
marks omitted). Additionally, “[f]or racist comments, slurs and jokes to constitute a hostile work
environment, there must be more than a few isolated incidents of racial enmity, meaning that
[i]nstead of sporadic slurs, there must be a steady barrage of opprobrious racial comments.” Id.
(citation and internal quotation marks omitted).
In his amended complaint, Chick alleges that in 2002 Defendant Morrero told him to shut
up and called him a “Ju-Ju Bee.” Chick further claims that on another unspecified occasion, when
he requested to go on vacation, his supervisor, Defendant Patrizo, responded “Ju wants to go on
vacation.” Chick also alleges that “he was the severe object of [r]eligious [d]iscrimination based on
his Jewish faith and was singled out for discrimination, unfair treatment, harassment and his eventual
termination based on his Jewish faith and national origin.” These allegations, as the district court
correctly determined, are too remote, non-specific and conclusory in nature to state a claim for
discriminatory discharge. Similarly, they do not assert that the defendants engaged in behavior rising
to the severe and pervasive level necessary to conclude that the environment was hostile or abusive
or even perceived as such. See Schwapp, 118 F.3d at 110. Additionally, although Chick alleges that he
was performing his duties satisfactorily prior to his discharge, the record reflects that he had been
suspended for being absent without authorization from his assigned duty area, failing to perform a
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fair day’s work, and falsifying his time records on thirteen separate occasions during the month of
June 2009. Moreover, while Defendants provided a legitimate non-discriminatory reason for Chick’s
discharge, namely that he failed to comply with the mandatory residency requirement, Chick failed
to allege that it was a pretext for discrimination, and the record reflects that he knew that his failure
to comply with the residency requirement could result in his termination. The district court
properly dismissed Chick’s religious discrimination and hostile work environment claims.
In dismissing Chick’s disability discrimination claim, the district court correctly determined
that disability is not a suspect classification under the Equal Protection Clause, Suffolk Parents of
Handicapped Adults v. Wingate, 101 F.3d 818, 824 n.4 (2d Cir. 1996), cert denied, 520 U.S. 1239 (1997),
and that a “class of one” does not exist in the public employment context, Engquist v. Or. Dep’t of
Agric., 553 U.S. 591, 607 (2008). Moreover, it is well established that the Equal Protection Clause
cannot provide a basis for asserting claims for reasonable accommodations. Bd. of Trs. of Univ. of
Ala. v. Garrett, 531 U.S. 356, 367-68 (2001). Chick’s claim that he was discriminated against based on
his alleged disability, therefore, was not cognizable, and the district court was correct in dismissing it.
Finally, Chick contends that he adequately pleaded a claim for municipal liability. A
“municipality is responsible if a violation of rights resulted from the ‘government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.’” Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011) (quoting Monell v. Dep’t of
Soc. Servs. of City of N. Y., 436 U.S. 658, 694 (1978)). Chick’s amended complaint, however, is devoid
of allegations that the decision to terminate him was based on a county policy or custom of
discrimination against people of the Jewish faith or against disabled individuals. Nor does the
amended complaint allege actions on the part of the individual defendants establishing a municipal
policy or custom that would serve as the basis for a Section 1983 claim against the municipality.
We have considered Chick’s remaining arguments and find them to be without merit.
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For the foregoing reasons, the judgment of the district court is AFFIRMED.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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