Plaintiff-Appellant [Plaintiff] initiated litigation pursuant to 42 U.S.C. §1983, alleging a violation of his First Amendment rights by his former employer, the City of New York[City].
Plaintiff claimed that as a result of his reports to supervisors, he became “the victim of a concerted retaliatory attack by supervisors and coworkers who were aware that he had blown the whistle.”
The alleged retaliation included being transferred to the day shift after he had worked the night shift for seventeen years, which caused a significant reduction in his available overtime hours. Plaintiff contended that he was also subjected to workplace hostility, threats, and false accusations of wrongdoing. Plaintiff also alleged that in one particular incident, he was "assaulted by a coworker in retaliation for his reports and required medical treatment for his injuries."
The City initiated an Office of Administrative Trials and Hearings [“OATH”] disciplinary hearing. The OATH Administrative Law Judge issued a report recommending termination of Plaintiff’s employment because of his “uncivil, insubordinate, and threatening behavior.” The Commissioner of DEP adopted the recommendation of the ALJ and ordered Plaintiff's termination. Plaintiff subsequently commenced a civil action changing his dismissal from his position.
The key element in the federal district court's dismissing Plaintiff's complaint: the court found that Plaintiff “fail[ed] to allege adequately that he spoke as a citizen on a matter of public concern as opposed to speaking as an employee about improper workplace conduct.”
Citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, the U.S. Court of Appeals, Second Circuit, said it agreed with the district court's ruling, explaining "To survive a motion to dismiss, a complaint must allege 'enough facts to state a claim to relief that is plausible on its face.'”
Further, said the Court of Appeals, "To state a First Amendment retaliation claim, a plaintiff must plausibly plead that: “
(1) his speech or conduct was protected by the First Amendment;
(2) the defendant took an adverse action against him; and
(3) there was a causal connection between this adverse action and the protected speech.*
In addition, opined the Circuit Court, "To determine whether a public employee’s speech is protected, courts must decide “whether the employee spoke as a citizen on a matter of public concern"**.
The Circuit Court concluded that Plaintiff''s reports of coworker misconduct were not about a matter of public concern. To establish a First Amendment claim, the plaintiff must do more than allege that the “sheer nature” of his and his colleagues’ work was connected to the public’s safety, and thus a matter of public concern.
In this appeal the Circuit Court's decision states that Plaintiff did not "actually allege that the misconduct contributed to unsafe drinking water or that it impacted public health and safety."
Further, opined the Court, intoxicated employees at a sewage treatment facility certainly could take actions to harm the public’s safety, but "the sparse allegations in [Plaintiff’s] Amended Complaint [did] not allege any facts allowing the Court to draw the inferences, noting Plaintiff suggests, and his complaint contains but a single sentence concerning the intoxicated employees, which alleged “[M]any of the employees ... would consume alcohol and attend work while in a state of intoxication, thereby impeding their ability to adequately perform their job, which is an essential function to maintain public health.”
In the words of the Court, "This conclusory assertion that the intoxicated employees’ jobs were essential to maintaining public health does not allow the Court to make a reasonable inference — or any inference — about how the employees’ intoxication endangered public health or were the subject of matters of public concern."
The Circuit Court also noted that Plaintiff's grievances were not made in his capacity as a citizen and his Amended Complaint "is devoid of any assertions articulating the nature of his job responsibilities and how his complaints fell outside of those duties."
Thus, because Plaintiff failed to adequately allege either that his reports about individual employees’ misconduct were made in his capacity as a citizen or that his complaints pertained to a matter of public concern — both of which are required to pursue his First Amendment claim, the Circuit Court of Appeals concluded that Plaintiff failed to allege a plausible retaliation claim.
* See Matthews v. City of New York, 779 F.3d 167, [quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267].
** See Garcetti v. Ceballos, 547 U.S. 410.
Click HERE to access the Circuit Court's decision posted on the Internet.