     14-545-cv
     Gordon v. City of New York, 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.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 21st day of May, two thousand fifteen.
 4
 5   PRESENT:
 6              CHESTER J. STRAUB,
 7              BARRINGTON D. PARKER,
 8              SUSAN L. CARNEY,
 9                           Circuit Judges.
10   _________________________________________
11
12   TOMEKO A. GORDON AND WILLIAM MURAWSKI,
13
14                                        Plaintiffs-Appellants,
15
16                                 v.                                            No. 14-545-cv
17
18   CITY OF NEW YORK, CITY OF NEW YORK FIRE
19   DEPARTMENT, EMERGENCY MEDICAL SERVICES,
20   LIEUTENANT WILLIAM POTASSO, LIEUTENANT
21   GRANT SIMMONS, EMERGENCY MEDICAL
22   TECHNICIAN RICHARD RIVERA, DEPUTY CHIEF
23   ANDREW WERNER, MICHAEL FIELDS,
24   CONFIDENTIAL INFORMANT 206, CONFIDENTIAL
25   INFORMANT 209,
26
27                                        Defendants-Appellees,
28
29
30
 1   WILLIAM RODRIGUEZ (DECEASED),
 2
 3                         Defendant.*
 4   __________________________________________
 5
 6   FOR PLAINTIFFS-APPELLANTS:                            GREGORY G. SMITH, Law Office of
 7                                                         Gregory G. Smith, New York, NY.
 8
 9   FOR DEFENDANTS-APPELLEES:                             RONALD E. STERNBERG, for Zachary W.
10                                                         Carter, Corporation Counsel of the City of
11                                                         New York, New York, NY.
12
13          Appeal from a judgment of the United States District Court for the Southern District
14   of New York (Swain, J.).

15          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
16   ADJUDGED, AND DECREED that the December 26, 2013 judgment of the District
17   Court is AFFIRMED.

18          While working as emergency medical technicians (“EMTs”) for the New York City
19   Fire Department (“FDNY”), plaintiffs Tomeko Gordon and William Murawski were
20   violently assaulted by defendant William Rodriguez, a fellow EMT. Gordon reported this
21   assault to the police. Gordon and Murawski, both seriously injured, missed approximately
22   six weeks of work following the incident. Shortly after plaintiffs returned to work,
23   Rodriguez committed suicide. In the months that followed, Gordon and Murawski allege,
24   they were ridiculed, ostracized, and blamed for Rodriguez’s suicide by their co-workers.
25   Nearly three years after the assault, plaintiffs filed a civil complaint against their co-workers
26   and their employer. They alleged twelve causes of action: seven under federal law (42 U.S.C.
27   §§ 1981, 1983, and 1985) and five under state law. The District Court dismissed plaintiffs’
28   federal claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and then declined to
29   exercise supplemental jurisdiction over the state-law claims.

30          On appeal, plaintiffs challenge the dismissal of only a subset of their federal claims.
31   In particular, they assert that their complaint adequately alleged that: (1) both Gordon and

     *
      The Clerk of Court is respectfully directed to amend the official caption in this case to conform
     with the caption above.
                                                       2
 1   Murawski experienced unlawful retaliation by their employer for engaging in protected First
 2   Amendment activity—reporting the assault to the police; (2) both plaintiffs were subjected
 3   to a hostile work environment on the basis of race (Gordon is black and Murawski is white);
 4   and (3) Gordon endured a hostile work environment on the basis of sex. We assume the
 5   parties’ familiarity with the underlying facts and procedural history, to which we refer only as
 6   necessary to explain our decision to affirm.

 7          We review a district court’s dismissal under Rule 12(b)(6) de novo, accepting as true all
 8   factual allegations in the complaint and drawing all reasonable inferences in the plaintiff’s
 9   favor. Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014). A court is not bound, however, to
10   “accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly,
11   550 U.S. 544, 555 (2007) (internal quotation marks omitted). To survive a motion to
12   dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim
13   to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
14   quotation marks omitted).

15          To state a prima facie case for First Amendment retaliation, a public employee must
16   demonstrate that “[1] he has engaged in protected First Amendment activity, [2] he suffered
17   an adverse employment action, and [3] there was a causal connection between the protected
18   activity and the adverse employment action.” Smith v. Cnty. of Suffolk, 776 F.3d 114, 118 (2d
19   Cir. 2015) (per curiam) (internal quotation marks omitted). With regard to the first element,
20   an employee’s speech is protected by the First Amendment if he “spoke as a citizen on a
21   matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). “If the court
22   determines that the plaintiff either did not speak as a citizen or did not speak on a matter of
23   public concern, the employee has no First Amendment cause of action based on his or her
24   employer’s reaction to the speech.” Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009) (internal
25   quotation marks omitted).

26          As noted, the “speech” at issue here is Gordon’s complaint to the police about
27   Rodriguez’s attack. Defendants do not dispute that she was speaking as a citizen, rather than
28   as an FDNY employee, when she made the report. See Appellees’ Br. at 11. The question,
29   therefore, is whether Gordon spoke “on a matter of public concern.”
                                                       3
 1            “Whether an employee’s speech addresses a matter of public concern is a question of
 2   law for the court to decide, taking into account the content, form, and context of a given
 3   statement as revealed by the whole record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999)
 4   (citing Connick v. Myers, 461 U.S. 138, 147–48 & n.7 (1983)). Speech addresses a matter of
 5   public concern when it “relat[es] to any matter of political, social, or other concern to the
 6   community, or when it is a subject of legitimate news interest.” Lane v. Franks, 134 S. Ct.
 7   2369, 2380 (2014) (internal quotation marks omitted). Among the relevant considerations in
 8   deciding if speech addresses a matter of public concern “is whether the speech was
 9   calculated to redress personal grievances or whether it had a broader public purpose.” Singer
10   v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013) (internal quotation marks omitted).

11            Here, the complaint contains no plausible allegation that Gordon’s statement to the
12   police was anything more than a simple, individualized assault report. As averred in the
13   complaint, Gordon “reported to the police that Rodriguez [had] attacked [plaintiffs],” J.A. 69
14   (Compl. ¶ 154), and “summoned police to assist [Murawski]” after the assault, J.A. 61
15   (Compl. ¶ 109). Although the complaint includes an allegation that the FDNY “has a policy
16   and custom of covering up workplace violence,” J.A. 48 (Compl. ¶ 49), it fails to plead facts
17   suggesting that the police report itself was an attempt to expose this policy. Indeed, the
18   “content, form, and context” of Gordon’s police report—a request for help in the
19   immediate aftermath of an attack—lead to the conclusion that the report was “personal in
20   nature and generally related to [Gordon’s] own situation,” not an effort “to correct allegedly
21   unlawful practices or bring them to public attention.” Huth v. Haslun, 598 F.3d 70, 74–75
22   (2d Cir. 2010) (internal quotation marks omitted). Accordingly, the District Court did not
23   err in holding that Gordon’s speech did not address a matter of public concern and was
24   therefore not protected speech that could form the basis of a First Amendment retaliation
25   claim.

26            Plaintiffs also claim that they were subjected to a hostile work environment—both
27   Gordon and Murawski on the basis of race, and Gordon on the basis of sex as well. This
28   argument is without merit. “[I]t is axiomatic that mistreatment at work, whether through
29   subjection to a hostile environment or through other means, is actionable . . . only when it
                                                    4
 1   occurs because of an employee’s protected characteristic.” Rivera v. Rochester Genesee Reg’l
 2   Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (alterations, emphasis, and internal quotation
 3   marks omitted). In pleading the connection between the mistreatment and the protected
 4   characteristic, “mere conclusory statements[] do not suffice.” Iqbal, 556 U.S. at 678; see also
 5   E.E.O.C. v. Port Auth. of New York & New Jersey, 768 F.3d 247, 254 (2d Cir. 2014).

 6          Plaintiffs’ allegations of a hostile work environment on the bases of race and sex are
 7   wholly conclusory. The gravamen of the complaint is that Gordon and Murawski were
 8   “made to feel responsible for Rodriguez’s suicide” and taunted by co-workers “because
 9   [Gordon] reported Rodriguez’s violent attack to police.” J.A. 61–62 (Compl. ¶¶ 112–113).
10   The complaint contains no plausible allegation that the behavior of plaintiffs’ co-workers
11   was additionally motivated by racial and gender animus. Moreover, that both plaintiffs were
12   subjected to similar treatment while Gordon is a black woman and Murawski is a white man
13   undermines both of their hostile work environment claims. See Brown v. Henderson, 257 F.3d
14   246, 254 (2d Cir. 2001) (“[I]n the absence of evidence suggesting that a plaintiff’s sex was
15   relevant, the fact that both male and female employees are treated similarly, if badly, does
16   give rise to the inference that their mistreatment shared a common cause that was unrelated
17   to their sex.”). The District Court’s dismissal of plaintiffs’ hostile work environment claims
18   was therefore not erroneous.

19          We have considered plaintiffs’ remaining arguments and find them to be without
20   merit. For the reasons set out above, the judgment of the District Court is AFFIRMED.

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




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