Ricioppo v. County of Suffolk , 353 F. App'x 656 ( 2009 )

09-1267-cv
Ricioppo v. County of Suffolk
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 Rulings by summary order do not have precedential effect. Citation to summary orders
7 filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
8 Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
9 summary order, in each paragraph in which a citation appears, at least one citation must either
10 be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
11 citing a summary order must serve a copy of that summary order together with the paper in
12 which the summary order is cited on any party not represented by counsel unless the summary
13 order is available in an electronic database which is publicly accessible without payment of fee
14 (such as the database available at http://www.ca2.uscourts.gov/ ). If no copy is served by
15 reason of the availability of the order on such a database, the citation must include reference to
16 that database and the docket number of the case in which the order was entered.
17
18 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
19 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
20 on the twenty-fourth day of November, two thousand and nine.
21
22 PRESENT:
23
24 JOSÉ A. CABRANES,
25 CHESTER J. STRAUB,
26 RICHARD C. WESLEY ,
27 Circuit Judges.
28 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
29 ERCOLE RICIOPPO , also known as Eric Ricioppo,
30
31 Plaintiff-Appellant,
32
33 -v.- No. 09-1267-cv
34
35 COUNTY OF SUFFOLK , SUFFOLK COUNTY COMMUNITY COLLEGE ,
36 THE BOARD OF TRUSTEES OF SUFFOLK COUNTY COMMUNITY
37 COLLEGE , MICHAEL HOLLANDER, BRIAN FOLEY , VIVIAN FISHER,
38 ERIC KOPP, ANTHONY APPOLARO ,
39
40 Defendants-Appellees.
41
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2
3 FOR PLAINTIFF-APPELLANT: ALAN E. WOLIN , Wolin & Wolin,
4 Jericho, NY.
5
6 FOR DEFENDANTS-APPELLEES: ANDREW M. ROTH , Berkman,
7 Honoch, Peterson & Peddy, P.C.,
8 Garden City, NY, for defendant-
9 appellee Michael Hollander.
10
11 CHRIS P. TERMINI, Christine
12 Malafi, Suffolk Co. Attorney,
13 Hauppauge, NY, for defendants-
14 appellees County of Suffolk, Suffolk
15 County Community College, The Board
16 of Trustees of Suffolk County
17 Community, College, Brian Foley,
18 Vivian Fisher, Eric Kopp, and
19 Anthony Appolaro.
20
21
22 Appeal from a March 4, 2009 order of the United States District Court for the Eastern District
23 of New York (Denis R. Hurley, Judge).
24
25 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
26 DECREED that the judgment of the District Court be AFFIRMED.
27
28 Plaintiff-appellant Ercole Ricioppo, also known as Eric Ricioppo, appeals from an order of the
29 District Court granting summary judgment in favor of defendants the County of Suffolk, Suffolk County
30 Community College, The Board of Trustees of Suffolk County Community College (the “College”),
31 Michael Hollander, Brian Foley, Vivian Fisher, Eric Kopp, and Anthony Appolaro (collectively,
32 “defendants”), in Ricioppo’s action arising under 42 U.S.C. §§ 1983 & 1985. In his § 1983 claim,
33 Ricioppo alleged that defendants abolished his administrative position, refused to hire him into a newly
34 created position, and denied him a full-time faculty position because plaintiff engaged in speech
35 protected by the First Amendment. Accordingly, Ricioppo asserted that defendants violated his First
36 Amendment rights and right to due process of law (both substantive and procedural); he also asserted a
37 breach of contract claim under state law. We assume the parties’ familiarity with the underlying facts,
38 the procedural history, and the issues on appeal.
39
40 On appeal, Ricioppo argues that the District Court erred in granting summary judgment in favor
41 of defendants on (1) his First Amendment claim, (2) his procedural due process claim, and (3) his breach
42 of contract claim.
43
44 We review de novo the District Court’s decision to grant summary judgment and, in the course of
45 that review, we resolve ambiguities and draw all permissible factual inferences in favor of the non-
46 moving party. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008); Nationwide Life Ins. Co. v.
47 Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999). No genuinely triable issue of fact exists when the
48 moving party demonstrates, by pleadings and submitted evidence, that no rational jury could find in the
2
1 non-movant’s favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
2
3 In order to establish a claim for retaliation under the First Amendment, an employee must prove
4 that he (1) engaged in constitutionally protected speech; (2) suffered an adverse employment action; and
5 (3) the speech was a “motivating factor” in the adverse employment decision. See Ruotolo v. City of New
6 York, 514 F.3d 184, 188 (2d Cir. 2008). In determining whether a public employee engaged in
7 constitutionally protected speech, we must first determine whether the “employee spoke as a citizen on a
8 matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If the employee can make that
9 showing, we would next determine “whether the relevant government entity had an adequate
10 justification for treating the employee differently from any other member of the general public.” Id. We
11 do not reach the second inquiry because, for the reasons stated in its thorough opinion, we agree with
12 the District Court that “the evidence proffered by Plaintiff, construed in his favor as it must be, is
13 insufficient to sustain a claim for First Amendment Retaliation because his speech was either not as a
14 citizen or not on a matter of public concern.” Ricioppo v. County of Suffolk, No. 04-3630, 2009 WL
15 577727, at *15 (E.D.N.Y. 2009).
16
17 We also agree with the District Court that Ricioppo’s assertions are insufficient to raise a triable
18 issue of fact to sustain his due process and breach of contract claims. Specifically, we agree with the
19 District Court’s conclusion that Ricioppo failed to establish a property interest in any academic or
20 administrative position, a requisite showing to sustain a due process claim. Ricioppo has not presented
21 evidence sufficient to sustain his assertions that he automatically received tenure upon entering his sixth
22 year at the College (pursuant, by his reading, to the College’s faculty Handbook), or that he received a
23 continuing academic appointment, thus entitling him to that appointment. As the District Court noted
24 and the parties agreed, Ricioppo’s “state law claim for breach of contract rises or falls with his claim that
25 he had a property interest in continued employment at the College.” Id. at *19. We therefore affirm the
26 District Court’s grant of summary judgment on Ricioppo’s claims of due process and breach of contract.
27
28 We have considered each of Ricioppo’s arguments on appeal and, substantially for the reasons
29 stated in the District Court’s thorough, well-reasoned order of March 4, 2009, we find them to be
30 without merit.
31
32 CONCLUSION
33
34 Accordingly, we AFFIRM the judgment of the District Court.
35
36 FOR THE COURT,
37 Catherine O’Hagan Wolfe, Clerk of Court
38
39 By _______________________________
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