Otte v. Brusinski

10-3395-cv
Otte v. Brusinski 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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 12th day of September, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROGER J. MINER,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11
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13 STEVEN W. OTTE,
14 Plaintiff-Appellant,
15
16 -v.- 10-3395-cv
17
18 FRANK BRUSINSKI, sued in his
19 individual capacity, DONNA DeLUSSO,
20 sued in her individual capacity,
21 Defendants-Appellees,
22
23 STEVEN BARBER, sued in his individual
24 capacity,
25 Defendant.
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27
28 FOR APPELLANT: Stephen Bergstein, Bergstein & Ullrich,
29 LLP, Chester, New York.
1 FOR APPELLEES: Marion R. Buchbinder, Assistant Solicitor
2 General (Barbara D. Underwood, Solicitor
3 General, Benjamin N. Gutman, Deputy
4 Solicitor General, of counsel), for Eric
5 T. Schneiderman, Attorney General of the
6 State of New York, New York, New York.
7
8
9 Appeal from a judgment of the United States District
10 Court for the Southern District of New York (Seibel, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court is
14 AFFIRMED.
15
16 Plaintiff-Appellant Steven Otte (“Otte”) appeals from
17 the July 22, 2010 judgment of the United Stated District
18 Court for the Southern District of New York (Seibel, J.),
19 granting summary judgment in favor of Defendants-Appellants
20 Frank Brusinksi (“Brusinski”) and Donna DeLusso (“DeLusso”)
21 and dismissing Otte’s claim, brought pursuant to 42 U.S.C.
22 § 1983, that he was retaliated against for exercising his
23 First Amendment right of free speech. We assume the
24 parties’ familiarity with the underlying facts, the
25 procedural history, and the issues presented for review.
26
27 We review de novo a district court’s grant of summary
28 judgment. See F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288,
29 292 (2d Cir. 2010).
30
31 [1] “To establish a First Amendment retaliation claim, a
32 plaintiff must show: (1) his speech addressed a matter of
33 public concern; (2) he suffered an adverse employment
34 action; and (3) a causal connection between the speech and
35 the adverse employment action.” Singh v. City of New York,
36 524 F.3d 361, 372 (2d Cir. 2008). Otte complained to his
37 supervisor, Brusinski, that certain patients at the Mid-
38 Hudson Forensic Psychiatric Center (“Mid-Hudson”) should not
39 have the use of a microwave oven. Otte’s speech was
40 “pursuant to his official duties because it was
41 part-and-parcel of his concerns about his ability to
42 properly execute his duties” as a security hospital
43 treatment assistant--namely, to maintain a safe environment
44 for other patients and employees. Weintraub v. Bd. of
45 Educ., 593 F.3d 196, 203 (2d Cir. 2010) (internal quotation
2
1 marks omitted). His speech therefore was not protected by
2 the First Amendment, see Garcetti v. Ceballos, 547 U.S. 410,
3 421 (2006), and he thus failed to satisfy the first
4 requirement necessary to allege a First Amendment
5 retaliation claim.
6
7 [2] Even assuming Otte’s speech was protected, he suffered
8 no adverse employment action as a result. The term “adverse
9 employment action” has a different meaning in the context of
10 a First Amendment retaliation claim than it does in cases
11 brought under Title VII. See Zelnik v. Fashion Inst. of
12 Tech., 464 F.3d 217, 225–26 (2d Cir. 2006). A plaintiff
13 need not demonstrate a material change in employment terms
14 or conditions in order to establish that he was subjected to
15 an adverse employment action; rather, a plaintiff need only
16 show that the retaliatory conduct in question “would deter a
17 similarly situated individual of ordinary firmness from
18 exercising his or her constitutional rights.” Id. at 225
19 (internal quotation marks omitted).
20
21 The detriment Otte relies on is his transfer from one
22 floor to another, at which he performed the same job.
23 Pursuant to a collective bargaining agreement, Mid-Hudson
24 management has the right, at its sole discretion, to deploy
25 employees between floors within a building. Moreover,
26 Otte’s transfer was made as a result of Brusinski’s claim
27 that Otte’s comments were threatening. It is undisputed
28 that the facility’s normal operating procedure was to
29 separate an employee from a supervisor when a threat was
30 alleged to have been made. In short, Otte’s transfer was
31 not the type of action that “would deter a similarly
32 situated individual of ordinary firmness from exercising his
33 or her constitutional rights” and was therefore not an
34 adverse employment action. Id. (internal quotation marks
35 omitted).
36
37 We have considered all of Otte’s remaining arguments
38 and find them to be without merit. For the foregoing
39 reasons, the judgment of the district court is hereby
40 AFFIRMED.
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
45
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