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

New York, on the 12th 4 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.
2

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 Mid38 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
3

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