14-4685 Miller v. NYC Dep’t of Educ.



### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 19 th** **day of November, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **PIERRE N. LEVAL,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **ADAM MILLER,** 12 **Plaintiff-Appellant ,**  13 14 **-v.- 14-4685** 15 16 **NEW YORK CITY DEPARTMENT OF EDUCATION,** 17 **OLGA LIVANIS, TINA YU, JULIA** 18 **CUNNINGHAM, JARED ROSOFF, and BRENDAN** 19 **ALFIERI,** 20 **Defendants-Appellees**

**.** 21
- - - - - - - - - - - - - - - - - - - -X 22 23 **FOR APPELLANT:** Alane E. Wolin, Wolin & Wolin, 24 Jericho, NY. 25 26 **FOR APPELLEES:** Michael J. Pastor, Senior 27 Counsel, Cecilia Chang, of 28

1counsel, for, Zachary Carter, 1 Corporation Counsel of the City 2 of New York, NY. 3 4 Appeal from a judgment of the United States District 5 Court for the Southern District of New York (Buchwald, J. ). 6 7 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 8 **AND DECREED**that the judgment of the district court be 9
**AFFIRMED**

. 10 11 Plaintiff Adam Miller appeals from the judgment of the 12 United States District Court for the Southern District of 13 New York (Buchwald, J. ), granting defendants-appellees’ 14 motion to dismiss the complaint

. We assume the parties’ 15 familiarity with the underlying facts, the procedural 16 history, and the issues presented for review. 17 18 Miller challenges the ruling that his allegations of 19 constitutional violations under 42 U.S.C. §§ 1983 and 20 1985(3) fail to state a claim. 1Plaintiff claims (1) that 21 he was retaliated against for exercising his free speech 22 rights, (2) that the discipline he faced was not imposed on 23 other teachers in violation of the Equal Protection Clause, 24 and (3) that his procedural and substantive due process 25 rights were violated. The claims are wholly without merit. 26 27 1. “Whether public employee speech is protected from 28 retaliation under the First Amendment entails two inquiries: 29 (1) ‘whether the employee spoke as a citizen on a matter of 30 public concern’ and, if so, (2) ‘whether the relevant 31 government entity had an adequate justification for treating 32 the employee differently from any other member of the 33 general public.’” Ruotolo v. City of New York , 514 F.3d 34 184, 188 (2d Cir. 2008) (quoting Garcetti v. Ceballos , 547 35 U.S. 410, 418 (2006)). “Whether an employee's speech 36 addresses a matter of public concern is a question of law 37 for the court to decide, taking into account the content, 38

1 The district court also concluded that plaintiff had waived his claims in a stipulation to resolve a prior § 3020-a proceeding, which is an extensive hearing and appeal process for disciplining tenured teachers and administrators in the New York state school system. However, we assume without deciding that the stipulation was ambiguous and that the instant claims were not waived.

2form, and context of a given statement as revealed by the 1 whole record. The heart of the matter is whether the 2 employee's speech was calculated to redress personal 3 grievances or whether it had a broader public purpose.” 4 Ruotolo , 514 F.3d at 189 (citation and internal quotation 5 marks omitted). 6 7 Plaintiff’s retaliation claim fails because the speech 8 alleged did not address a matter of public concern and was 9 focused entirely on defendants’ treatment of the plaintiff 10 alone. Plaintiff argues that his allegations reveal public 11 wrongdoing or corruption and thus are matters of public 12 concern. However, unlike a typical public corruption case 13 with broad impact, the only victim of defendants’ alleged 14 actions here is the plaintiff himself. SeeId. at 190 (“A 15 generalized public interest in the fair or proper treatment 16 of public employees is not enough.”). Because the speech 17 that forms the core of the plaintiff’s retaliation claim 18 does not address a matter of public concern, the claim 19 fails. 20 21 2. Plaintiff alleges his equal protection rights were 22 violated; but “the Equal Protection Clause does not apply to 23 a public employee asserting a violation of the Clause under 24 a ‘class of one’ theory.” Appel v. Spiridon , 531 F.3d 138, 25 139 (2d Cir. 2008) (citing Engquist v. Oregon Dep't of Agr.
, 26 553 U.S. 591, 605-09 (2008). Plaintiff does not allege that 27 he is a member of a protected group; rather, the equal 28 protection claim amounts to a theory that Miller was 29 unfairly “singled out” for discipline that was not visited 30 on other teachers who were similarly situated. Because the 31 equal protection claim rests on a “class of one” theory, it 32 fails. 33 34 3. Plaintiff proposes novel legal theories to suggest 35 that his due process rights were violated both procedurally 36 and substantively. 37 38 a. Plaintiff alleges that his procedural due process 39 rights were violated when defendants did not adhere to the 40 various “procedures, policies, rules and regulations and 41 contractual provisions in a fair and even-handed manner and 42 without regard to personal motives.” Appellant’s Brief at 43 63. To state a procedural due process claim, plaintiff must 44 allege a property right with a source other than the 45 Constitution, such as a state or federal statute. O’Connor 46 v. Pierson , 426 F.3d 187, 196 (2d Cir. 2005). To invoke 47

3procedural due process, a plaintiff must seek “to protect 1 something more than an ordinary contractual right.” S & D 2 Maint. Co. v. Goldin , 844 F.2d 962, 966 (2d Cir. 1988). 3 “Rather, procedural protection is sought in connection with 4 a state's revocation of a status , an estate . . . [such as] 5 tenure.” Id. If such a property right is found, we must 6 determine whether that property right “constitutes a 7 property interest for purposes of the Fourteenth Amendment.” 8 Town of Castle Rock, Colo. v. Gonzales , 545 U.S. 748, 756 9 (2005). 10 11 Plaintiff does not complain of a revocation of tenure. 12 Rather, he asserts that he had a property interest in 13 certain specific disciplinary procedures set forth in a 14 collective bargaining agreement. Such “ordinary contractual 15 right[s],” S & D Maintenance , 844 F.2d at 966, do not 16 constitute property interests. Thus, the plaintiff has 17 failed to state a claim for procedural due process 18 violations. 19 20 b. Plaintiff alleges that the uneven enforcement of 21 contractual rights also violated his substantive due process 22 rights. However, “where a specific constitutional provision 23 prohibits government action, plaintiffs seeking redress for 24 that prohibited conduct in a § 1983 suit cannot make 25 reference to the broad notion of substantive due process.” 26 Velez v. Levy , 401 F.3d 75, 94 (2d Cir. 2005). “For a 27 substantive due process claim to survive a Rule 12(b)(6) 28 dismissal motion, it must allege governmental conduct that 29 ‘is so egregious, so outrageous, that it may fairly be said 30 to shock the contemporary conscience.’” Id. at 93-94 31 (quoting County of Sacramento v. Lewis , 523 U.S. 833, 847 32 n.8 (1998)). 33 34 All of the plaintiff’s substantive due process 35 allegations are subsumed by allegations that the same 36 conduct violated other, more specific, constitutional 37 provisions, i.e. , retaliation for protected speech and the 38 equal protection clause. SeeVelez , 401 F.3d at 94 (“[W]hat 39 would serve to raise defendant's actions beyond the wrongful 40 to the unconscionable and shocking are facts which, if 41 proven, would constitute, in themselves, specific 42 constitutional violations.”). But even if his allegations 43 were not duplicitous, nothing about the plaintiff’s 44 workplace grievances or offended feelings “shocks the 45 conscience.” Accordingly, plaintiff’s substantive due 46 process claims fail. 47

41 2 For the foregoing reasons, and finding no merit in 3 plaintiff’s other arguments, we hereby **AFFIRM**the judgment 4 of the district court. 5 6 FOR THE COURT: 7 CATHERINE O’HAGAN WOLFE, CLERK 8 9

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