20

- 551 Gonzalez v. City of New York


## 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 NO TATION A SUMMARY ORDER @ ). A PARTY CITING TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 nd da y of February , two thousand twenty

- one . 3 4 PRESENT: 5 ROBERT D. SACK , 6 SUSAN L. CARNEY, 7 Circuit Judges , 8 RACHEL P. KOVN ER 1 9 10 Distric t Judge. 11

_______________________________________ 12 13 Alfred Gonzalez , 14 15 Plaintiff

- Appellant , 16 17

v. 20

- 551 18 19 District Council 37, AFSCME, AFL

- CIO, SSEU 20 Local 371, 21 22 Defendant

- Appellee , 23 24 City of New York , 25 26 Defendant

. 27 28

_______________________________________ 29

1 Jud ge Rachel P. Kovner, of the United States District C ourt for the Eastern District of New York, sit ting by designation.FOR PLAINTIFF

- APPELLANT: Alfred Gonzalez
, pro se , New 1 York, NY

. 2 3 FOR DEFENDANT

- APPELLEE: Jeffrey L. Kreisberg, 4 Kreisberg & Maitland, LLP
, 5 New York, NY

. 6
Appeal from a judgment of the United States District Court for the Southern District of 7

New York ( Woods
, J .). 8

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 9

DECREED that the judgment of the district court is AFFIRMED

. 10
Appellant Alfred Gonzalez , proceeding pro se , sued his former employer, the City of New 11
York (the “City”), and his union, District Council 37, AFSCME, AFL

- CIO, SSEU Local 371 12

(the “Union”), following h is dismissal from a tenured, permanent position in a competitive

- class 13
civil service job. The district court granted both (1) the City’s motion to dismiss for failure to 14

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and (2) the Union ’s motion for 15
summary judgment under Federal Rule of Civil Procedure 56 on the basis that the district court 16
lacked jurisdiction over Gonzalez’s duty of fair representation claim and that Gonzalez could not 17
sustain a conspiracy claim against the Union

. 2 Gonzalez timely appeals. We assume the parties ’ 18
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal
, 19
to which we refer only as necessary to explain our decision to affirm

. 20

We review de novo both a district c ourt’s grant of a motion to dismiss a complaint pursuant 21
to Rule 12(b)(6) and its grant of summary judgment under Rule 56

. Garcia v. Hartford Police 22

Dep’t , 706 F.3d 120, 126

– 27 (2d Cir. 2013) (per curiam) ; Chambers v. Time Warner, Inc.
, 23

2 We construe Gonzalez’s notice of appeal as challenging both of these orders. See Elliott v. City of Hartford
, 823 F.3d 170, 173 (2d Cir. 2016) ( [I]n the absence of prejudice to an appellee, we read a pro se appellant ’ s appeal from an order closing the case as constituting an appeal from all prior orders.” ). Although the City did not file a brief on appeal, we see no prejudice to it in rendering our decision because we affirm the District Court’ s decision in the City’s favor in all respects.3 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss, a complaint must contain 1
sufficient factual allegations, accepted as true and with all reasonable inferences drawn in the 2
plaintiff’s favor, “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly
, 3

550 U.S. 544, 570 (2007); Chambers , 282 F.3d at 152. “Summary judgment is proper only when, 4
construing the evidence in the light most favorable to the non

- movant, ‘there is no genuine dispute 5
as to any material fact and the movant i s entitled to judgment as a matter of law.’” Doninger v. 6
Niehoff , 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). 7
Gonzalez does not challenge the district court’s conclusions that it lacked jurisdiction over 8
his claim that the City could not, consistent with its due process obligations, reveal his employment 9
records to potential future employers and over his duty of fair representation claim against the 10
Union; that he failed to state a § 1983 due process claim against the Union because it was not a 11
state actor; and that he could not state a §1983 conspiracy claim against the Union if he failed to 12
state a § 1983 due process claim against the City. He also does not challenge the district court’s 13
decision declining to exercise supplemental j urisdiction over any state

- law claims. He has thus 14

waived any appeal as to all of these issues. See Norton v. Sam’s Club , 145 F.3d 114, 117 15

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally 16
will not be addressed on appeal.”); LoSacco v. City of Middletown , 71 F.3d 88, 92

– 93 17

(2d Cir. 1995) (pro se litigant “ abandon [ s ]” issue by failing to address it in his appellate brief). 18
Turning to Gonzalez’s remaining due process claims on appeal : P ublic employees who can 19

be fired only for cause, like Gonzalez, have a property interest in their continued employment, and 20
they are entitled to due process when they are depr ived of that interest. See Cleveland Bd. of 21

Educ. v. Loudermill , 470 U.S. 532, 538

– 39 (1985)

. “ When such a public employee is terminated, 224 procedural due process is satisfied if the government provides notice and a limited opportunity to 1
be heard prior to termination, so long as a full adversarial hearing is provided afterwards .” 2

Locurto v. Safir , 264 F.3d 154, 171 (2d Cir. 2001)

. 3
The requirements for any such pre

- termination hearing are “minimal.” Id. at 173; see also 4

id. at 174 (pre

- termination hearing requires only “notice of the charges, an explanation of the 5
nature of the employer’s evidence, and an opportunity for the employee to respond,” and does not 6
need to be conducted by a neutral adjudicator). W ith respect to th e requisite post

- termination 7
hearing, this Court has held that the availability in New York of an Article 78 proceeding satisfies 8
the requirements of due process. See id. at 175 (holding, in the context of a § 1983 suit 9
challenging the dismissal of a tenu red public employee, that “[a]n Article 78 proceeding . . . 10

constitutes a wh olly adequate post

- deprivation hearing for due process purposes”); see also 11
Hellenic Am. Neighborhood Action Comm. v. City of New York , 101 F.3d 877, 881 (2d Cir. 1996 )

. 12

Gonzalez acknowledged in his complaint that he allowed the four

- month limitations period for an 13
Article 78 proceeding to expire without bringing an Article 78 challenge

. S ee id. (a plaintiff 14
“cannot resuscitate [his] due process claim simply because an Article 78 proceeding is now barred 15
by Article 7 8’ s four

- month statute of limitations”). 16

Gonzalez’s argument on appeal is that he was not able or required to file an Article 78 17
petition to challenge his termination because he was never “validly” terminated

. There was no 18

valid termination, he contends, because the person who signed his termination letter was not 19

authorized to do so

. The district court did not err in declining to address this claim, however, 20

since the claim turned on an allegation not made in the amended complaint and was raised for the 21
first time in opposition to the Union’s motion for summary judgment. See Greenidge v. Allstate 225 Ins. Co

. , 446 F.3d 356, 361 (2d Cir. 2006) (declining to reach merits of issue raised for the first 1
time in opposition to summary judgment because “a district court does not abuse its discretion 2
when it fails to grant leave to amend a complaint without being asked to do so”). I n any event, 3
this is precisely the type of challenge that Gonzalez could have raised in an Article 78 proceeding. 4

See, e.g.
, Matter of Gagedeen v. Ponte , 170 A.D.3d 1013, 101 4 (2d Dep’t 2019) (affirming 5
dismissal of Article 78 petition afte r considering merits of petitioner’s claim that his dismissal was 6
improper because he was dismissed by a Deputy Commissioner of the Department of Corrections, 7

rather than the Commissioner). 8

We have considered a ll of Gonzalez’s remaining arguments and find in them no basis for 9

reversal . Accordingly, we AFFIRM the judgment of the district court. 10

11 FOR THE COURT: 12 Catherine O ’ Hagan Wolfe, Clerk of Court 13