     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,
 4       on the 19th 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
21   1985(3) fail to state a claim.1 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
