13-1962-cv
Norton v. N.Y. State Dep’t of Corr. Servs.


                                   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
ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 9th day of May, two thousand fourteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
----------------------------------------------------------------------
GILSOMENA M. NORTON,
                                 Plaintiff-Appellant,

                                 v.                                      No. 13-1962-cv

DENNIS BRESLIN, KATHLEEN GERBING, LT. R.
BOURGELAIS, FELIX EZEKWE, M.D., each being sued
in their individual capacity,
                              Defendants-Appellees,

NEW      YORK        STATE       DEPARTMENT           OF
CORRECTIONAL SERVICES (NYSDOCS), DEPUTY
SUPERINTENDENT LAWRENCE ZWILLINGER,
NURSE ADMINISTRATOR SHARON MCGILVARY,
each being sued in their individual and official capacity,
SUPERINTENDENT DENNIS BRESLIN, DEPUTY
SUPERINTENDENT KATHLEEN GERBING, LT. R.


                                                     1
BOURGELAIS, FACILITY HEALTH SERVICES
DIRECTOR FELIX EZEKWE, M.D., each being sued in
their official capacity,
                                 Defendants. *
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                         ANTHONY MAHONEY, (Linda M. Cronin,
                                                 Christopher Bellistri, on the brief), Cronin &
                                                 Byczek LLP, Lake Success, New York.

APPEARING FOR APPELLEES:                         JASON HARROW (Barbara D. Underwood,
                                                 Solicitor General, Richard P. Dearing, Deputy
                                                 Solicitor General, on the brief), for Eric T.
                                                 Schneiderman, Attorney General of the State of
                                                 New York, New York.

         Appeal from a judgment of the United States District Court for the Southern District

of New York (Colleen McMahon, Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on April 17, 2013, is AFFIRMED.

         Plaintiff Gilsomena M. Norton appeals from the dismissal of her 42 U.S.C. § 1983

claim against defendants Dennis Breslin, Kathleen Gerbing, Lt. R. Bourgelais, and Felix

Ezekwe, M.D., sued in their individual capacities for unlawful retaliation in violation of the

First Amendment while Norton was an employee of the New York State Department of

Correctional Services.1 She alleges that the retaliation was based on her complaints of



*
    The Clerk of Court is directed to amend the official caption as shown above.
1
  The district court also dismissed Norton’s claims against defendants in their official
capacities because state officials in their official capacity are not “persons” within the

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race-based discrimination, under-staffing, forced-overtime, and violations of the Health

Insurance Portability and Accountability Act (“HIPAA”) Pub. L. 104–191, 110 Stat. 1936

(codified in scattered sections of 18, 26, 29, & 42 U.S.C.). We review de novo the

dismissal of a complaint under Fed. R. of Civ. P. 12(b)(6), accepting all factual allegations

as true and drawing all reasonable inferences in favor of Norton. See Fahs Constr. Grp.,

Inc. v. Gray, 725 F.3d 289, 290 (2d Cir. 2013). We assume the parties’ familiarity with

the facts and record of the underlying proceedings, which we reference only as necessary to

explain our decision to affirm.

       “Regardless of the factual context, we have required a plaintiff alleging retaliation

to establish speech protected by the First Amendment.” Weintraub v. Bd. of Educ., 593

F.3d 196, 200 (2d Cir. 2010) (internal quotation marks omitted). For speech by a public

employee to be protected by the First Amendment, the employee must be “speaking as a

citizen on a matter of public concern.” Ross v. Breslin, 693 F.3d 300, 305 (2d Cir. 2012)

(internal quotation marks and ellipsis omitted).

       Whether speech “addresses a matter of public concern is a question of law for the

court to decide.” Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008) (internal

quotation marks omitted). To answer this question, “we evaluate whether the speech


meaning of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);
accord Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012). Norton does not challenge
this conclusion, and we therefore treat these official capacity claims as abandoned on
appeal. See Lederman v. N.Y. City Dep’t of Parks & Recreation, 731 F.3d 199, 203 n.1
(2d Cir. 2013).

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relates to any matter of political, social, or other concern to the community, and whether

the speech was calculated to redress personal grievances or whether it had a broader public

purpose.” Hoyt v. Andreucci, 433 F.3d 320, 330 (2d Cir. 2006) (internal quotations marks

and citations omitted). “[M]ere employee grievances do not qualify as matters of public

concern.” Id. There is no categorical approach, however, “that places all speech aimed

at redressing personal grievances in the employment context beyond the scope of the First

Amendment.” Huth v. Haslun, 598 F.3d 70, 74 (2d Cir. 2010). Rather, “[w]hether an

employee’s speech addresses a matter of public concern must be determined by the

content, form, and context of a given statement, as revealed by the whole record.”

Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (internal quotation marks omitted).

      Norton, who is African-American, complained that she was denied advancement in

favor of a white employee with less seniority, and that specific white employees were

treated better than she was. This is a quintessential employee grievance that may well be

protected by the Equal Protection Clause, see Ciambriello v. Cnty. of Nassau, 292 F.3d

307, 316 (2d Cir. 2002), but not by the First Amendment. To be sure, a complaint of

“system-wide discrimination” can raise a public concern, but where the complaint is

“personal in nature and generally related to [the employee’s] own situation,” it is

unprotected by the First Amendment. Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143

(2d Cir. 1993) (internal quotation marks omitted). Washington v. County of Rockland,

373 F.3d 310 (2d Cir. 2004), on which Norton relies, warrants no different conclusion.


                                            4
There, we identified a public concern in an alleged practice or policy of selectively

subjecting African-Americans to disciplinary proceedings on account of their race, even

though victims’ complaints also stated personal grievances. Id. at 313–14, 320. Here,

however, Norton’s complaints of personal discrimination are not connected to any broader

policy or practice and, thus, do not raise a public concern of systemic discrimination. Like

the district court, we conclude that her complaints are not First Amendment protected

speech.

         Nor does Norton allege that she complained about general HIPAA violations; rather

she alleges that she reminded defendants of HIPAA disclosure protections when they

asked her to give information concerning her own off-duty provision of health care to her

mother and other patients.       Nothing in this alleged statement reached beyond a

“generalized public interest in the fair or proper treatment of public employees,” which we

have said is “not enough” to trigger First Amendment protection. Ruotolo v. City of New

York, 514 F.3d at 190. Indeed, Norton admits that she was complaining of “personal

violations of her and/or her mother’s medical and health information.” Appellant’s Br.

19–20.     Nevertheless, she argues that, because she complained about more general

HIPAA violations while working at a different facility, the court should infer that her

HIPAA complaint here at issue concerned general patient confidentiality as well as her

own. Precedent is to the contrary. “[R]etaliation against the airing of generally personal

grievances is not brought within the protection of the First Amendment by the mere fact


                                             5
that one or two of a public employee’s comments could be construed broadly to implicate

matters of public concern.” Ruotolo v. City of New York, 514 F.3d at 190 (internal

quotation marks and alteration omitted).

       Finally, while Norton’s alleged complaints of forced overtime and under-staffing

might implicate concerns for staff and patient safety, read in context, it is apparent that

their primary focus is Norton’s own work situation. See Jackler v. Byrne, 658 F.3d 225,

236 (2d Cir. 2011). Specifically, Norton complained of being forced to work overtime

during, and immediately after, nine 16-hour days over a two-week period. Similarly, she

complained of understaffing within days of informing her employer that she intended to

file grievances related to her schedule.     Even drawing all reasonable inferences in

Norton’s favor, these complaints assert primarily personal grievances. See Ruotolo v.

City of New York, 514 F.3d at 190; see also Appellant’s Br. 15 (admitting mixed

motivations in that “she was concurrently concerned for her own well-being” when

complaining about staffing).

       That conclusion is only reinforced by the non-public form of Norton’s complaints.

“Nothing in the complaint suggests that [she] made a single public statement or ever

intended to make such a statement.” Fahs Constr. Grp., Inc. v. Gray, 725 F.3d at 291

(noting form of speech was “exclusively nonpublic” where plaintiff “availed itself of a

dispute resolution mechanism entirely internal to [the Department of Transportation]”).

Norton communicated her staffing concerns only to her supervisor, and her overtime


                                            6
concerns only to management and the New York State Department of Labor, with which

she also filed a separate complaint for overtime pay. In light of the context and form of

her complaints, we conclude, as the district court did, that they did not address a matter of

public concern and were therefore unprotected by the First Amendment.

       We have considered the remainder of Norton’s arguments and consider them to be

without merit. The order of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O=HAGAN WOLFE, Clerk of Court




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