10-3395-cv Otte v. Brusinski et al.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER**
**FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY**
**ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 12 th** **day of September, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROGER J. MINER,** 8 **ROBERT A. KATZMANN,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **STEVEN W. OTTE,** 13 **Plaintiff-Appellant ,**  14 15 **-v.- 10-3395-cv** 16 17 **FRANK BRUSINSKI, sued in his** 18 **individual capacity, DONNA DeLUSSO,** 19 **sued in her individual capacity,** 20 **Defendants-Appellees ,**  21 22 **STEVEN BARBER, sued in his individual** 23 **capacity,** 24 **Defendant**

**.** 25
- - - - - - - - - - - - - - - - - - - -X 26 27 **FOR APPELLANT:** Stephen Bergstein, Bergstein & Ullrich, 28 LLP, Chester, New York. 292 **FOR APPELLEES:** Marion R. Buchbinder, Assistant Solicitor 1 General (Barbara D. Underwood, Solicitor 2 General, Benjamin N. Gutman, Deputy 3 Solicitor General, of counsel ), forEric 4 T. Schneiderman, Attorney General of the 5 State of New York, New York, New York. 6 7 8 Appeal from a judgment of the United States District 9 Court for the Southern District of New York (Seibel, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the district court is 13
**AFFIRMED**

. 14 15 Plaintiff-Appellant Steven Otte (“Otte”) appeals from 16 the July 22, 2010 judgment of the United Stated District 17 Court for the Southern District of New York (Seibel, J. ), 18 granting summary judgment in favor of Defendants-Appellants 19 Frank Brusinksi (“Brusinski”) and Donna DeLusso (“DeLusso”) 20 and dismissing Otte’s claim, brought pursuant to 42 U.S.C. 21 § 1983, that he was retaliated against for exercising his 22 First Amendment right of free speech. We assume the 23 parties’ familiarity with the underlying facts, the 24 procedural history, and the issues presented for review. 25 26 We review denovoa district court’s grant of summary 27 judgment. SeeF.D.I.C. v. Great Am. Ins. Co. , 607 F.3d 288, 28 292 (2d Cir. 2010). 29 30 **[1]** “To establish a First Amendment retaliation claim, a 31 plaintiff must show: (1) his speech addressed a matter of 32 public concern; (2) he suffered an adverse employment 33 action; and (3) a causal connection between the speech and 34 the adverse employment action.” Singh v. City of New York
, 35 524 F.3d 361, 372 (2d Cir. 2008). Otte complained to his 36 supervisor, Brusinski, that certain patients at the Mid37 Hudson Forensic Psychiatric Center (“Mid-Hudson”) should not 38 have the use of a microwave oven. Otte’s speech was 39 “pursuant to his official duties because it was 40 part-and-parcel of his concerns about his ability to 41 properly execute his duties” as a security hospital 42 treatment assistant--namely, to maintain a safe environment 43 for other patients and employees. Weintraub v. Bd. of 44 Educ. , 593 F.3d 196, 203 (2d Cir. 2010) (internal quotation 453 marks omitted). His speech therefore was not protected by 1 the First Amendment, see Garcetti v. Ceballos , 547 U.S. 410, 2 421 (2006), and he thus failed to satisfy the first 3 requirement necessary to allege a First Amendment 4 retaliation claim. 5 6 **[2]** Even assuming Otte’s speech was protected, he suffered 7 no adverse employment action as a result. The term “adverse 8 employment action” has a different meaning in the context of 9 a First Amendment retaliation claim than it does in cases 10 brought under Title VII. See Zelnik v. Fashion Inst. of 11 Tech. , 464 F.3d 217, 225–26 (2d Cir. 2006). A plaintiff 12 need not demonstrate a material change in employment terms 13 or conditions in order to establish that he was subjected to 14 an adverse employment action; rather, a plaintiff need only 15 show that the retaliatory conduct in question “would deter a 16 similarly situated individual of ordinary firmness from 17 exercising his or her constitutional rights.” Id. at 225 18 (internal quotation marks omitted). 19 20 The detriment Otte relies on is his transfer from one 21 floor to another, at which he performed the same job. 22 Pursuant to a collective bargaining agreement, Mid-Hudson 23 management has the right, at its sole discretion, to deploy 24 employees between floors within a building. Moreover, 25 Otte’s transfer was made as a result of Brusinski’s claim 26 that Otte’s comments were threatening. It is undisputed 27 that the facility’s normal operating procedure was to 28 separate an employee from a supervisor when a threat was 29 alleged to have been made. In short, Otte’s transfer was 30 not the type of action that “would deter a similarly 31 situated individual of ordinary firmness from exercising his 32 or her constitutional rights” and was therefore not an 33 adverse employment action. Id. (internal quotation marks 34 omitted). 35 36 We have considered all of Otte’s remaining arguments 37 and find them to be without merit. For the foregoing 38 reasons, the judgment of the district court is hereby 39
**AFFIRMED**

. 40 41 FOR THE COURT: 42 CATHERINE O’HAGAN WOLFE, CLERK 43 44 45