10-1084-cv
Nixon, et al. v. Blumenthal, 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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 15th day of December, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          BARRINGTON D. PARKER,
                 Circuit Judges,
          EDWARD R. KORMAN ,
                 District Judge.*


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KAREN NIXON , THEODORE DRISCOLL , ANDREW MATTHEWS, PATRICK CAROZZA , JOHN
BUTKEVICIUS, STEPHEN SAMPSON , THERESA FREEMAN , and BENJAMIN PAGONI,

                               Plaintiffs-Appellants,

          v.                                                                               No. 10-1084-cv,

RICHARD BLUMENTHAL , ARNOLD MENCHEL , WILLIAM
GUNDLING , and JEFFREY MEYERS,

                               Defendants-Appellees.

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          *
            The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New
York, sitting by designation.

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FOR APPELLANTS:                         NORMAN A. PATTIS, Bethany, CT.

FOR APPELLEES:                          PERRY ZINN -ROWTHORN , Associate Attorney General
                                        (Richard Blumenthal, Attorney General, and Philip Miller,
                                        Assistant Attorney General, on the brief), Office of the
                                        Attorney General, Hartford, CT, for Richard Blumenthal,
                                        Arnold Menchel, and William Gundling.

                                        Richard R. Brown, Brown, Paindiris & Scott, LLP, Hartford,
                                        CT, for Jeffrey Meyers.

        Appeal from a March 11, 2010 judgment entered in the United States District Court for the
District of Connecticut (Janet Bond Arterton, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment be AFFIRMED.

        Plaintiffs-Appellants Karen Nixon, Theodore Driscoll, Andrew Matthews, Patrick Carozza,
John Butkevicus, Stephen Sampson, Theresa Freeman, and Benjamin Pagoni (jointly, “plaintiffs”),
all of whom are law enforcement officers of the Connecticut State Police in the Department of
Public Safety (“DPS”), brought suit against Attorney General Richard Blumenthal, Assistant
Attorneys General Arnold Menchel and William Gundling (jointly, “defendants”), as well as
John/Jane Does 1-5, high-ranking officials in the DPS. Plaintiffs alleged that they were retaliated
against for cooperating with an investigation of corruption and criminal activity within the
Connecticut State Police. Specifically, plaintiffs brought suit under 42 U.S.C. § 1983 and § 1985,
charging that they had been retaliated against for exercising their First Amendment right of free
speech as whistleblowers. Plaintiffs also brought state-law claims against Jeffrey Meyers, a former
employee of the Office of the Attorney General.

         Defendants moved to dismiss the federal charges for failure to state a claim. The District
Court granted defendants’ motions to dismiss and declined to exercise supplemental jurisdiction
over the state-law claims. Plaintiffs now appeal the dismissal of the § 1983 claim. We assume the
parties’ familiarity with the underlying facts and the procedural history of the case.

       We review de novo a district court’s dismissal of a complaint for failure to state a claim under
Rule 12(b)(6). Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). “To establish a First
Amendment retaliation claim, a plaintiff must show: (1) his speech addressed a matter of public
concern; (2) he suffered an adverse employment action; and (3) a causal connection between the
speech and the adverse employment action.” Singh v. City of New York, 524 F.3d 361, 372 (2d Cir.
2007). The thrust of plaintiffs’ appeal is that the District Court applied the wrong standard for
determining what constitutes an “adverse employment action.”


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         We have held that the term “adverse employment action” has a different meaning in the
context of a First Amendment retaliation claim than it does in cases brought under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. See Zelnik v. Fashion Inst. of Tech., 464
F.3d 217, 225-27 (2d Cir. 2006). In the First Amendment context, plaintiffs need not demonstrate a
material change in employment terms or conditions in order to establish that they were subjected to
an adverse employment action; rather, plaintiffs need only show that the retaliatory conduct in
question “would deter a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights.” Id. at 225. Plaintiffs contend that the District Court incorrectly required them
to allege facts demonstrating that they had been subjected to a material change in their respective
employment terms or conditions. In support of this argument, plaintiffs point to the District
Court’s statement that “[p]laintiffs’ complaint contains no allegations of refusals to promote,
disciplinary actions, or demotions.” Nixon v. Blumenthal, No. 3:08cv1933, 2010 U.S. Dist. LEXIS
22408, at *10 (D. Conn. Mar. 11, 2010). If this statement represented the entirety of the District
Court’s holding, plaintiffs’ argument might have merit. But the District Court did, in fact, apply the
proper legal standard. The District Court explicitly found that “[p]laintiffs have failed to assert any
specific factual allegations from which a plausible inference could be drawn that, as a result of any
‘adverse action’ by [d]efendants, they have suffered any specific consequences that would deter a
person of ordinary firmness from exercising his or her constitutional rights . . . .” Id. at *12. This
conclusion is both dispositive and plainly correct.

         Plaintiffs’ complaint accuses defendants of permitting, condoning, or acquiescing in the
sharing of confidential information about plaintiffs with members of senior management of the
DPS. As a result, plaintiffs allege that they work “in an environment permeated by hostility.” But
the complaint provides no details about what kind of confidential information was disclosed, and,
more significantly, the complaint offers absolutely no factual support for its conclusory allegation
that plaintiffs work in an environment permeated by hostility. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The District Court rightly concluded that the conclusory
allegations contained in plaintiffs’ complaint failed to satisfy the pleading standards set forth in Iqbal
and Twombly.

        We have considered all of plaintiffs’ arguments and find them to be without merit.
Accordingly, the judgment of the District Court dismissing plaintiffs’ federal claims and declining to
exercise supplemental jurisdiction over their state-law claims is AFFIRMED.

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




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