   10-0740-cv
   Carter v. Inc. Vill. of Ocean Beach


                                   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 18th day of March, two thousand eleven.

   PRESENT:
               RALPH K. WINTER,
               ROBERT D. SACK,
               DEBRA ANN LIVINGSON,
                     Circuit Judges,
   __________________________________________

   EDWARD CARTER, FRANK FIORILLO, KEVIN LAMM, JOSEPH NOFI, and
   THOMAS SNYDER,

                      Plaintiffs-Appellants,

                      v.                                              10-0740-cv

   INCORPORATED VILLAGE OF OCEAN BEACH, JOSEPH C. LOEFFLER, JR., Mayor,
   individually and in his official capacity, NATALIE K. ROGERS, Former Mayor, individually
   and in her individual capacity, OCEAN BEACH POLICE DEPARTMENT, GEORGE B.
   HESSE, Acting Deputy Police Chief, individually and in his official capacity, SUFFOLK
   COUNTY POLICE DEPARTMENT, SUFFOLK COUNTY DEPARTMENT OF CIVIL
   SERVICE, and ALISON SANCHEZ, individually and in her official capacity,

                      Defendants-Appellees.

                      and

   SUFFOLK COUNTY DISTRICT ATTORNEY’S OFFICE

               Defendant.
   __________________________________________
                                DOUGLAS H. WIGDOR (Andrew S. Goodstadt, Ariel Y. Graff on
                                the brief), Thompson Wigdor & Gilly LLP, New York, New York for
                                Plaintiffs-Appellants.

                                CHERYL F. KORMAN (Evan H. Krinick, Kenneth A. Novikoff,
                                Merril S. Biscone, on the brief), Rivkin Radler LLP, Uniondale,
                                New York, for Defendants-Appellees Incorporated Village of
                                Ocean Beach, Joseph C. Loeffler, Jr., Mayor, Natalie K. Rogers,
                                Former Mayor, and Ocean Beach Police Department.

                                JAMES M. SKELLY (Kevin William Connolly, Karen M. Lager,
                                on the brief) Marks, O’Neill, O’Brien & Courtney P.C., Elmsford,
                                New York, for Defendant-Appellee George B. Hesse.

                                ARLENE ZWILLINGS (Rudolophe M. Baptiste on the brief)
                                Assistant County Attorneys for Christine Malafi, Suffolk County
                                Attorney, Hauppage, New York, for Defendants-Appellees Suffolk
                                County, Suffolk County Police Department, Suffolk County
                                Department of Civil Service, and Alison Sanchez.


        Appeal from a judgment of the United States District Court for the Eastern District of New

York (Feuerstein, J.)

        UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiffs-Appellants Edward Carter, Frank Fiorillo, Kevin Lamm, Joseph Nofi, and Thomas

Snyder appeal from the district court’s February 19, 2010 Opinion & Order granting summary

judgment on all of plaintiffs’ claims which stem from their one-time employment as seasonal police

officers by defendant-appellee Ocean Beach Police Department. Plaintiffs allege that they were

unlawfully terminated without adequate process and in retaliation for reporting misconduct within

the department in violation of the First, Fifth, and Fourteenth Amendments. They further claim that

ensuing derogatory statements made about them by defendants-appellees George B. Hesse and

Alison Sanchez similarly violated their Fifth and Fourteenth Amendment rights. The district court

found that all of plaintiffs’ claims failed as a matter of law, concluding, first, that plaintiffs did not


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engage in “constitutionally protected speech” and thus could not establish First Amendment claims,

and, further, that they had not suffered a deprivation of either a protected liberty or property interest.

On appeal, plaintiffs contend the district court erred in so doing when, at the very least, issues of

material fact remain in dispute with respect to all of their claims. We presume the parties’

familiarity with the underlying facts, the procedural history, and the issues on appeal, and revisit

those issues only as necessary to facilitate this discussion.

        We review a grant of summary judgment de novo, and in so doing, we construe the evidence

in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s

favor. See Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427 (2d Cir. 2009);

Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). Summary judgment is warranted

only where “there is no genuine issue as to any material fact and . . . the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Cordiano v. Metacon Gun Club, Inc., 575

F.3d 199, 204 (2d Cir. 2009). “A fact is material when it might affect the outcome of the suit under

governing law.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal

quotation marks omitted).

        As noted, plaintiffs each raise three claims: (1) a First Amendment retaliation claim, (2) a

Fifth and Fourteenth Amendment denial of due process claim based on plaintiffs’ asserted property

interest in continued employment, and (3) a Fifth and Fourteenth Amendment denial of due process

claim based on plaintiffs’ asserted liberty interest in remaining free of the “stigma” caused by

defendants’ derogatory statements. We review each set of claims in turn.

        To state a First Amendment retaliation claim, a plaintiff must establish (1) that he “engaged

in constitutionally protected speech,” (2) that he or she suffered an adverse employment action; and

(3) that the constitutionally protected speech was a “motivating factor” in the adverse employment
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action. Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006). The first element requires

us to evaluate whether the employee spoke as a “citizen on a matter of public concern,” and, if so,

whether the relevant government entity lacked “an adequate justification for treating the employee

differently from any other member of the general public.” Garcetti v. Ceballos, 547 U.S. 410, 418

(2006); Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). The district court found that, even

if plaintiffs’ factual claims were credited in full, they established only that plaintiffs spoke “pursuant

to their official duties” and thus “not . . . as citizens for First Amendment purposes.” Garcetti, 547

U.S. at 421. We agree.

        Plaintiffs’ allegations establish no more than that they reported what they believed to be

misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of

their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about

[their] ability to properly execute [their] duties.” Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d

Cir. 2010); see also Garcetti, 547 U.S. at 421 (“speech that owes its existence to a public employee’s

professional responsibilities” is made “pursuant to” that employee’s “official duties”). As such, they

were not engaging in constitutionally protected speech at any relevant time and cannot make out a

First Amendment claim.

        Plaintiffs next contend they were deprived of a protected property interest without due

process of law. To state a claim for deprivation of property without due process of law, a plaintiff

must, as a preliminary matter, “identify a property interest protected by the Due Process Clause.”

Harrington v. Cnty of Suffolk, 607 F.3d 31, 34 (2d Cir. 2010). To demonstrate a property interest

in public employment, the plaintiff must have “more than a unilateral expectation of” continued or

future employment but instead “a legitimate claim of entitlement to it.” Town of Castle Rock v.


                                                    4
Gonzales, 545 U.S. 748, 756 (2005). Plaintiffs established no such “claim of entitlement” here. To

the contrary, the record establishes that plaintiffs were all at-will, part-time, seasonal employees who

had no contractual or other basis for asserting any “entitlement” to continued or future employment.

Plaintiffs’ reliance on section 75(1)(c) of New York’s Civil Service Law, which requires a hearing

before the termination of certain government employees who have “completed at least five years of

continuous service,” N.Y. Civ. Serv. L. § 75(1)(c), is misplaced. For substantially the reasons set

forth by the district court, we conclude that no plaintiff was employed “continuously” for a five year

period, and, accordingly, that section 75(1)(c) provides no support for plaintiffs’ claims.

       Finally, plaintiffs allege a so-called “stigma plus”deprivation. “‘Stigma plus’ refers to a

claim brought for injury to one’s reputation (the stigma) coupled with the deprivation of some

‘tangible interest’ or property right (the plus), without adequate process.” DiBlasio v. Novello, 344

F.3d 292, 302 (2d Cir. 2003). Accordingly, to make out a stigma-plus claim, a plaintiff must

establish that the government made public, stigmatizing comments about him – that is, “statements

that call into question [the] plaintiff’s good name, reputation, honor, or integrity” – and that such

statements “were made concurrently with, or in close temporal relationship to, the plaintiff’s

dismissal from government employment.” Segal v. City of N.Y., 459 F.3d 207, 212 (2d Cir. 2006)

(internal quotation marks, citation omitted).

       The district court found that, even assuming a “deprivation” occurred here – that is, assuming

plaintiffs could establish the “stigma” and the “plus” – the claims would nonetheless fail because

plaintiffs were afforded “adequate process” in the form of a post-deprivation Article 78 hearing in

state court. We agree.     Where, as here, plaintiffs are “at will” government employees raising

stigma-plus claims, our law makes clear that “due process does not require a pre-termination


                                                   5
hearing.” Segal, 459 F.3d at 217. Instead, access to post-termination process, such as an Article 78

hearing, is sufficient to satisfy constitutional requirements. Anemone v. Metro. Transp. Auth., --

F.3d. --, 2011 U.S. App. LEXIS 10, at * 69 (2d Cir. Jan. 4, 2011) (“An article 78 hearing provides

the requisite post-deprivation process – even if [plaintiffs] failed to pursue it.”) Accordingly, we

agree with the district court that plaintiffs were afforded access to sufficient post-deprivation process

to satisfy constitutional requirements and affirm the dismissal of the stigma-plus claims.

        To the extent plaintiffs raise any other arguments, we have considered them and reject them

as meritless. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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