14-4685

Miller v. NYC Dep’t of Educ.

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 19th 4 day of November, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 PIERRE N. LEVAL,

8 GERARD E. LYNCH,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 ADAM MILLER, 

13 Plaintiff-Appellant,

14

15 -v.- 14-4685

16

17 NEW YORK CITY DEPARTMENT OF EDUCATION,

18 OLGA LIVANIS, TINA YU, JULIA

19 CUNNINGHAM, JARED ROSOFF, and BRENDAN

20 ALFIERI, 

21 Defendants-Appellees.

22 - - - - - - - - - - - - - - - - - - - -X

23

24 FOR APPELLANT: Alane E. Wolin, Wolin & Wolin,

25 Jericho, NY.

26

27 FOR APPELLEES: Michael J. Pastor, Senior

28 Counsel, Cecilia Chang, of

1
1 counsel, for, Zachary Carter,

2 Corporation Counsel of the City

3 of New York, NY.

4

5 Appeal from a judgment of the United States District

6 Court for the Southern District of New York (Buchwald, J.).

7

8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9 AND DECREED that the judgment of the district court be

10 AFFIRMED. 

11

12 Plaintiff Adam Miller appeals from the judgment of the

13 United States District Court for the Southern District of

14 New York (Buchwald, J.), granting defendants-appellees’

15 motion to dismiss the complaint. We assume the parties’

16 familiarity with the underlying facts, the procedural

17 history, and the issues presented for review.

18

19 Miller challenges the ruling that his allegations of

20 constitutional violations under 42 U.S.C. §§ 1983 and

1985(3) fail to state a claim.1 21 Plaintiff claims (1) that

22 he was retaliated against for exercising his free speech

23 rights, (2) that the discipline he faced was not imposed on

24 other teachers in violation of the Equal Protection Clause,

25 and (3) that his procedural and substantive due process

26 rights were violated. The claims are wholly without merit.

27

28 1. “Whether public employee speech is protected from

29 retaliation under the First Amendment entails two inquiries:

30 (1) ‘whether the employee spoke as a citizen on a matter of

31 public concern’ and, if so, (2) ‘whether the relevant

32 government entity had an adequate justification for treating

33 the employee differently from any other member of the

34 general public.’” Ruotolo v. City of New York, 514 F.3d

35 184, 188 (2d Cir. 2008) (quoting Garcetti v. Ceballos, 547

36 U.S. 410, 418 (2006)). “Whether an employee's speech

37 addresses a matter of public concern is a question of law

38 for the court to decide, taking into account the content,

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.

2
1 form, and context of a given statement as revealed by the

2 whole record. The heart of the matter is whether the

3 employee's speech was calculated to redress personal

4 grievances or whether it had a broader public purpose.” 

5 Ruotolo, 514 F.3d at 189 (citation and internal quotation

6 marks omitted).

7

8 Plaintiff’s retaliation claim fails because the speech

9 alleged did not address a matter of public concern and was

10 focused entirely on defendants’ treatment of the plaintiff

11 alone. Plaintiff argues that his allegations reveal public

12 wrongdoing or corruption and thus are matters of public

13 concern. However, unlike a typical public corruption case

14 with broad impact, the only victim of defendants’ alleged

15 actions here is the plaintiff himself. See Id. at 190 (“A

16 generalized public interest in the fair or proper treatment

17 of public employees is not enough.”). Because the speech

18 that forms the core of the plaintiff’s retaliation claim

19 does not address a matter of public concern, the claim

20 fails.

21

22 2. Plaintiff alleges his equal protection rights were

23 violated; but “the Equal Protection Clause does not apply to

24 a public employee asserting a violation of the Clause under

25 a ‘class of one’ theory.” Appel v. Spiridon, 531 F.3d 138,

26 139 (2d Cir. 2008) (citing Engquist v. Oregon Dep't of Agr.,

27 553 U.S. 591, 605-09 (2008). Plaintiff does not allege that

28 he is a member of a protected group; rather, the equal

29 protection claim amounts to a theory that Miller was

30 unfairly “singled out” for discipline that was not visited

31 on other teachers who were similarly situated. Because the

32 equal protection claim rests on a “class of one” theory, it

33 fails.

34

35 3. Plaintiff proposes novel legal theories to suggest

36 that his due process rights were violated both procedurally

37 and substantively.

38

39 a. Plaintiff alleges that his procedural due process

40 rights were violated when defendants did not adhere to the

41 various “procedures, policies, rules and regulations and

42 contractual provisions in a fair and even-handed manner and

43 without regard to personal motives.” Appellant’s Brief at

44 63. To state a procedural due process claim, plaintiff must

45 allege a property right with a source other than the

46 Constitution, such as a state or federal statute. O’Connor

47 v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005). To invoke

3
1 procedural due process, a plaintiff must seek “to protect

2 something more than an ordinary contractual right.” S & D

3 Maint. Co. v. Goldin, 844 F.2d 962, 966 (2d Cir. 1988). 

4 “Rather, procedural protection is sought in connection with

5 a state's revocation of a status, an estate . . . [such as]

6 tenure.” Id. If such a property right is found, we must

7 determine whether that property right “constitutes a

8 property interest for purposes of the Fourteenth Amendment.” 

9 Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756

10 (2005). 

11

12 Plaintiff does not complain of a revocation of tenure. 

13 Rather, he asserts that he had a property interest in

14 certain specific disciplinary procedures set forth in a

15 collective bargaining agreement. Such “ordinary contractual

16 right[s],” S & D Maintenance, 844 F.2d at 966, do not

17 constitute property interests. Thus, the plaintiff has

18 failed to state a claim for procedural due process

19 violations.

20

21 b. Plaintiff alleges that the uneven enforcement of

22 contractual rights also violated his substantive due process

23 rights. However, “where a specific constitutional provision

24 prohibits government action, plaintiffs seeking redress for

25 that prohibited conduct in a § 1983 suit cannot make

26 reference to the broad notion of substantive due process.” 

27 Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005). “For a

28 substantive due process claim to survive a Rule 12(b)(6)

29 dismissal motion, it must allege governmental conduct that

30 ‘is so egregious, so outrageous, that it may fairly be said

31 to shock the contemporary conscience.’” Id. at 93-94

32 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847

33 n.8 (1998)).

34

35 All of the plaintiff’s substantive due process

36 allegations are subsumed by allegations that the same

37 conduct violated other, more specific, constitutional

38 provisions, i.e., retaliation for protected speech and the

39 equal protection clause. See Velez, 401 F.3d at 94 (“[W]hat

40 would serve to raise defendant's actions beyond the wrongful

41 to the unconscionable and shocking are facts which, if

42 proven, would constitute, in themselves, specific

43 constitutional violations.”). But even if his allegations

44 were not duplicitous, nothing about the plaintiff’s

45 workplace grievances or offended feelings “shocks the

46 conscience.” Accordingly, plaintiff’s substantive due

47 process claims fail.

4
1

2

3 For the foregoing reasons, and finding no merit in

4 plaintiff’s other arguments, we hereby AFFIRM the judgment

5 of the district court.

6

7 FOR THE COURT:

8 CATHERINE O’HAGAN WOLFE, CLERK

9

5