14-545-cv Gordon v. City of New York, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not ha ve 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 (wit h 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 Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 21 st day of May, two thousand fifteen. 3 4 PRESENT: 5 C HESTER J. S TRAUB , 6 B ARRINGTON D. P ARKER , 7 S USAN L. C ARNEY , 8 Circuit Judges

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_____________ _______________ _____________ 10 11 T OMEKO A. G ORDON AND W ILLIAM M URAWSKI , 12 13 Plaintiffs-Appellants
, 14 15 v. No. 14-545-cv 16 17 C ITY OF N EW Y ORK , C ITY OF N EW Y ORK F IRE 18 D EPARTMENT , E MERGENCY M EDICAL S ERVICES , 19 L IEUTENANT W ILLIAM P OTASSO , L IEUTENANT 20 G RANT S IMMONS , E MERGENCY M EDICAL 21 T ECHNICIAN R ICHARD R IVERA , D EPUTY C HIEF 22 A NDREW W ERNER , M ICHAEL F IELDS , 23 C ONFIDENTIAL I NFORMANT 206, C ONFIDENTIAL 24 I NFORMANT 209, 25 26 Defendants-Appellees
, 27 28 29 302 W ILLIAM R ODRIGUEZ ( DECEASED ), 1 2 Defendant

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_____________ _______________ ______________ 4 5 FOR PLAINTIFFS-APPELLANTS: G REGORY G. S MITH , Law Office of 6 Gregory G. Smith, New York, NY. 7 8 FOR DEFENDANTS-APPELLEES: R ONALD E. S TERNBERG , for Zachary W. 9 Carter, Corporation Counsel of the City of 10 New York, New York, NY. 11 12 Appeal from a judgment of the United States District Court for th e Southern District 13 of New York (Swain, J. ). 14
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 15 ADJUDGED, AND DECREED that the December 26, 2013 judgment of the District 16
Court is AFFIRMED

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While working as emergency medical techni cians (“EMTs”) for the New York City 18 Fire Department (“FDNY”), plaintiffs To meko Gordon and William Murawski were 19 violently assaulted by defendant William Rodr iguez, a fellow EMT. Gordon reported this 20 assault to the police. Gordon and Murawski, both seriously injured, missed approximately 21 six weeks of work following the incident. Shortly after plaintiffs returned to work, 22 Rodriguez committed suicide. In the months that followed, Gordon and Murawski allege, 23 they were ridiculed, ostracized, and blamed fo r Rodriguez’s suicide by their co-workers. 24 Nearly three years after the assault, plaintiffs filed a civil complaint against their co-workers 25 and their employer. They alleged twelve causes of action: seven under federal law (42 U.S.C. 26 §§ 1981, 1983, and 1985) an d five under state law. The District Court dismissed plaintiffs’ 27 federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and then declined to 28 exercise supplemental jurisdicti on over the state-law claims. 29
On appeal, plaintiffs challenge the dismissal of only a subset of their federal claims. 30 In particular, they assert that their complaint adequately alleged that: (1) both Gordon and 31

* The Clerk of Court is respectfully directed to amen d the official caption in this case to conform with the caption above.3 Murawski experienced unlawful retaliation by their employer for engaging in protected First 1 Amendment activity—reporting the assault to th e police; (2) both plaintiffs were subjected 2
to a hostile work environment on the basis of race (Gordon is black and Murawski is white); 3 and (3) Gordon endured a hostile work enviro nment on the basis of sex. We assume the 4 parties’ familiarity with the underlying facts an d procedural history, to which we refer only as 5 necessary to explain our decision to affirm. 6
We review a district court’s dismissal under Rule 12(b)(6) de novo , accepting as true all 7 factual allegations in the complaint and drawin g all reasonable inferences in the plaintiff’s 8
favor. Adelson v. Harris , 774 F.3d 803, 807 (2d Cir. 2014). A court is not bound, however, to 9 “accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly
, 10 550 U.S. 544, 555 (2007) (internal quotation marks omitte d). To survive a motion to 11 dismiss, “a complaint must cont ain sufficient factual matter, ac cepted as true, to state a claim 12 to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal 13 quotation marks omitted). 14

To state a prima facie case for First Amendment retaliation, a public employee must 15 demonstrate that “[1] he has engaged in protect ed First Amendment activity, [2] he suffered 16 an adverse employment action, and [3] there was a causal connection between the protected 17 activity and the adverse employment action.” Smith v. Cnty. of Suffolk , 776 F.3d 114, 118 (2d 18 Cir. 2015) (per curiam) (internal quotation marks omitted). With regard to the first element, 19 an employee’s speech is protected by the First Amendment if he “spoke as a citizen on a 20 matter of public concern.” Garcetti v. Ceballos , 547 U.S. 410, 418 (2006). “If the court 21 determines that the plaintiff either did not sp eak as a citizen or did not speak on a matter of 22 public concern, the employee has no First Amen dment cause of action based on his or her 23 employer’s reaction to the speech.” Sousa v. Roque , 578 F.3d 164, 170 (2d Cir. 2009) (internal 24 quotation marks omitted). 25
As noted, the “speech” at issue here is Gordon’s complaint to the police about 26 Rodriguez’s attack. Defendants do not dispute th at she was speaking as a citizen, rather than 27 as an FDNY employee, when she made the report. See Appellees’ Br. at 11. The question, 28 therefore, is whether Gordon spoke “on a matter of public concern.” 294 “Whether an employee’s speech addresses a matter of public concern is a question of 1 law for the court to decide, ta king into account the content, form, and context of a given 2 statement as revealed by the whole record.” Lewis v. Cowen , 165 F.3d 154, 16 3 (2d Cir. 1999) 3 (citing Connick v. Myers , 461 U.S. 138, 147 –48 & n.7 (1983)). Speech addresses a matter of 4 public concern when it “relat[es] to any matte r of political, social, or other concern to the 5 community, or when it is a subject of legitimate news interest.” Lane v. Franks , 134 S. Ct. 6 2369, 2380 (2014) (internal quota tion marks omitted). Among the relevant considerations in 7 deciding if speech addresses a matter of public concern “is whether the speech was 8 calculated to redress personal grievances or whether it had a broader public purpose.” Singer 9
v. Ferro , 711 F.3d 334, 339 (2d Cir. 2013) (i nternal quotation marks omitted). 10
Here, the complaint contains no plausible allegation that Gordon’s statement to the 11 police was anything more than a simple, indivi dualized assault report. As averred in the 12 complaint, Gordon “reported to the police that Rodriguez [had] a ttacked [plaintiffs],” J.A. 69 13 (Compl. ¶ 154), and “summoned police to assi st [Murawski]” after the assault, J.A. 61 14 (Compl. ¶ 109). Although the complaint includ es an allegation that the FDNY “has a policy 15 and custom of covering up workplace violence,” J.A. 48 (Compl. ¶ 49), it fails to plead facts 16 suggesting that the police report itself was an attempt to expose this policy. Indeed, the 17 “content, form, and context” of Gordon’s police report—a request for help in the 18
immediate aftermath of an attack—lead to th e conclusion that the report was “personal in 19 nature and generally related to [Gordon’s] own situation,” not an effort “to correct allegedly 20 unlawful practices or bring them to public attention.” Huth v. Haslun , 598 F.3d 70, 74–75 21 (2d Cir. 2010) (internal quotati on marks omitted). Accordingly, the District Court did not 22 err in holding that Gordon’s speech did not address a matter of public concern and was 23 therefore not protected speech that could form the basis of a First Amendment retaliation 24
claim. 25
Plaintiffs also claim that they were subj ected to a hostile work environment—both 26 Gordon and Murawski on the basis of race, an d Gordon on the basis of sex as well. This 27 argument is without merit. “[I]t is axiomati c that mistreatment at work, whether through 28 subjection to a hostile environment or through other means, is actionable . . . only when it 295 occurs because of an employee’s protected characteristic.” Rivera v. Rochester Genesee Reg’l 1 Transp. Auth. , 743 F.3d 11, 20 (2d Cir. 2014) (alterations, emphasis, and internal quotation 2 marks omitted). In pleading the connection between the mistreatment and the protected 3 characteristic, “mere conclusory statements[] do not suffice.” Iqbal , 556 U.S. at 678; see also 4
E.E.O.C. v. Port Auth. of New York & New Jersey , 768 F.3d 247, 254 (2d Cir. 2014). 5
Plaintiffs’ allegations of a hostile work environment on the bases of race and sex are 6 wholly conclusory. The gravamen of the co mplaint is that Gordon and Murawski were 7 “made to feel responsible for Rodriguez’s su icide” and taunted by co-workers “because 8 [Gordon] reported Rodriguez’s violent attack to police.” J.A. 61–62 (Compl. ¶¶ 112–113). 9 The complaint contains no plausible allegation th at the behavior of plaintiffs’ co-workers 10

was additionally motivated by racial and gender animus . Moreover, that both plaintiffs were 11 subjected to similar treatment while Gordon is a black woman and Murawski is a white man 12
undermines both of their hostile work environm ent claims. See Brown v. Henderson , 257 F.3d 13 246, 254 (2d Cir. 2001) (“[I]n the absence of evidence suggesting that a plaintiff’s sex was 14 relevant, the fact that both male and female employees are treated similarly, if badly, does 15 give rise to the inference that their mistreatment shared a common cause that was unrelated 16 to their sex.”). The District Court’s dismissal of plaintiffs’ hostile work environment claims 17
was therefore not erroneous. 18
We have considered plaintiffs’ remainin g arguments and find them to be without 19 merit. For the reasons set out above, the judgment of the District Court is AFFIRMED

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FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court 22