13-27-cv
Fahs Construction Group, Inc. v. Gray, et al.




                         United States Court of Appeals
                                   FOR THE SECOND CIRCUIT




                                          August Term, 2012

      (Argued: June 13, 2013                                    Decided: August 8, 2013)

                                          Docket No. 13-27-cv


                                FAHS CONSTRUCTION GROUP, INC.,

                                                                Plaintiff-Appellant,

                                                    –v.–


                                                MICHAEL GRAY,

                                                                Defendant-Appellee,

JOHN VAN AUKEN, TIMOTHY FARRELL, JOHN DOE NO. 1, JOHN DOE NO. 2, JOHN
      DOE NO. 3, JOHN DOE NO. 4, JOHN DOE NO. 5, JOHN DOE NO. 6,

                                                                Defendants.


B e f o r e:

                       POOLER, LOHIER, AND CARNEY, Circuit Judges.



Plaintiff-Appellant Fahs Construction Group, Inc., an independent contractor
that provided roadway construction and paving services to the New York
State Department of Transportation, appeals from a December 7, 2012
judgment of the District Court (Glenn T. Suddaby, Judge) dismissing its First
Amendment and Equal Protection claims against Defendant-Appellee
Michael Gray, a construction supervisor with DOT. We conclude that the
District Court properly dismissed Fahs’s First Amendment claim because
Fahs’s speech was not on a matter of public concern. We also conclude that
the District Court properly dismissed Fahs’s Equal Protection claim because
the only differential treatment alleged in the complaint took place outside the
limitations period. AFFIRMED.


                              ALBERT J. MILLUS, JR. (Paul T. Sheppard,
                              Patrick J. May, on the brief), Hinman, Howard
                              & Kattell, LLP, Binghamton, NY, for Plaintiff-
                              Appellant.

                              VICTOR PALADINO (Barbara D. Underwood,
                              Solicitor General; Andrew D. Bing, Deputy
                              Solicitor General, on the brief), Assistant
                              Solicitor General, for Eric T. Schneiderman,
                              Attorney General of the State of New York,
                              Albany, NY, for Defendant-Appellee.


PER CURIAM:

      Plaintiff-Appellant Fahs Construction Group, Inc. (“Fahs”), a general

contractor that provided roadway construction and paving services to the

New York State Department of Transportation (“DOT”), appeals from a

December 7, 2012 judgment of the District Court (Glenn T. Suddaby, Judge)

dismissing its First Amendment and Equal Protection claims against

Defendant-Appellee Michael Gray, a construction supervisor with DOT.

      We review the grant of a motion to dismiss de novo. Capital Mgmt.

Select Fund Ltd. v. Bennett, 680 F.3d 214, 219 (2d Cir. 2012). In so doing, we

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accept “all factual claims in the complaint as true, and draw[ ] all reasonable

inferences in the plaintiff’s favor.” Anschutz Corp. v. Merrill Lynch & Co.,

690 F.3d 98, 107 (2d Cir. 2012) (internal quotation marks omitted). “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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

I.    First Amendment Claim

      Fahs alleges that after it became embroiled in a series of disputes with

DOT relating to its work on two DOT projects, Gray took a number of

retaliatory actions against Fahs in connection with Fahs’s work on a third

DOT project.

      In Pickering v. Board of Education, 391 U.S. 565 (1968), the Supreme

Court recognized that “the First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of

public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (citing

Pickering, 391 U.S. at 568). Pickering and its progeny “identify two inquiries

to guide interpretation of the constitutional protections accorded to public

employee speech”:

      The first requires determining whether the employee spoke as a
      citizen on a matter of public concern. If the answer is no, the

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      employee has no First Amendment cause of action based on his or
      her employer’s reaction to the speech. If the answer is yes, then the
      possibility of a First Amendment claim arises. The question
      becomes whether the relevant government entity had an adequate
      justification for treating the employee differently from any other
      member of the general public.

Garcetti, 547 U.S. at 417 (internal citations omitted); see also Pickering, 391

U.S. at 568 (concluding that the scope of a public employee’s First

Amendment rights depends on the “balance between the interests of the

[employee], as a citizen, in commenting upon matters of public concern and

the interest of the State, as an employer, in promoting the efficiency of the

public services it performs through its employees”).

      Fahs is not a public employee, but rather an independent contractor. In

Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996), however,

the Supreme Court held that independent contractors hired by the State are

protected by the First Amendment and that “the Pickering balancing test,

adjusted to weigh the government’s interests as contractor rather than as

employer, determines the extent of their protection.” Id. at 673.

      We need not reach the balancing portion of the Pickering test here

because Fahs’s speech was not “on a matter of public concern.” Garcetti, 547

U.S. at 417. The content of Fahs’s speech was almost exclusively personal to

the company. In filing claims with DOT, Fahs sought to recover additional

compensation and secure extensions of time to complete its projects.

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Although at times Fahs’s speech may have “touch[ed] on a topic of general

importance,” it “primarily concern[ed] an issue that is personal in nature” –

Fahs’s compensation. Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011)

(internal quotation marks omitted). The context of Fahs’s speech was also

almost exclusively personal. The complaint makes clear that Fahs’s speech

was meant to – and did – achieve the “resol[ution] [of its] claims to the

substantial advantage of Fahs.” Compl. ¶ 42. Nothing in the complaint

suggests that Fahs attempted to use the claims process to shed light on DOT’s

contracting practices more generally. In addition, the form of Fahs’s speech

was exclusively nonpublic. In filing its claims and requests for extensions of

time, Fahs availed itself of a dispute resolution mechanism entirely internal

to DOT. Nothing in the complaint suggests that Fahs made a single public

statement or ever intended to make such a statement.

       In sum, Fahs spoke not on matters of public concern but rather on

matters of purely personal significance. We therefore affirm the District

Court’s judgment dismissing Fahs’s First Amendment claim.1




       1
         Fahs argues that its complaint also states a claim under the First Amendment’s
Petition Clause because the “public concern” requirement does not apply to petition clause
claims. Appellant’s Br. at 31-32. Fahs concedes that it did not raise this argument before
the District Court, Appellant’s Reply Br. at 6 n.1, and we therefore decline to consider it
now, see, e.g., In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 255
n.8 (2d Cir. 2011).

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II.    Equal Protection Claim

       Fahs also alleges that Gray violated its right to equal protection by

treating it differently than a similarly situated contractor, Lancaster

Development, Inc. (“Lancaster”).

       The Equal Protection Clause has traditionally been applied to

governmental classifications that treat certain groups of citizens differently

than others. See Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008). In

Village of Willowbrook v. Olech, 528 U.S. 562 (2000), however, the Supreme

Court recognized that the Equal Protection Clause can “give[ ] rise to a cause

of action on behalf of a ‘class of one’ where the plaintiff [does] not allege

membership in a class or group.”2 Id. at 564. Where a class-of-one theory is

available, the plaintiff must allege “that (i) no rational person could regard

the circumstances of the plaintiff to differ from those of a comparator to a

degree that would justify the differential treatment on the basis of a

legitimate governmental policy; and (ii) the similarity in circumstances and

difference in treatment are sufficient to exclude the possibility that the

defendants acted on the basis of a mistake.” Clubside, Inc. v. Valentin, 468

F.3d 144, 159 (2d Cir. 2006) (internal quotation marks omitted).


       2
          In Engquist, 553 U.S. at 598, the Court held that “the class-of-one theory of equal
protection does not apply in the public employment context.” We need not determine
whether Engquist controls here because, as we explain below, Fahs’s Equal Protection
claim is clearly barred by the statute of limitations.

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      The statute of limitations on an Equal Protection claim brought in New

York under 42 U.S.C. § 1983 is three years. Pearl v. City of Long Beach, 296

F.3d 76, 79 (2d Cir. 2002). Such a claim accrues when the plaintiff knew or

should have known of the disparate treatment. Id. at 80. Where a plaintiff

challenges a “continuous practice and policy of discrimination, however, the

commencement of the statute of limitations period may be delayed until the

last discriminatory act in furtherance of it.” Cornwell v. Robinson, 23 F.3d

694, 703 (2d Cir. 1994) (internal quotation marks omitted). To trigger such a

delay, the plaintiff “must allege both the existence of an ongoing policy of

discrimination and some non-time-barred acts taken in furtherance of that

policy.” Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999).

      Fahs brought suit in February 2010. The complaint alleges that Fahs’s

discriminatory treatment vis-à-vis Lancaster occurred principally between

2003 and 2005, well outside the three-year limitations period. These events

cannot form the basis of Fahs’s Equal Protection claim unless Fahs has also

alleged “non-time-barred acts taken in furtherance of [the] policy” of

discrimination. Id. The only acts described in the complaint that are alleged

to have occurred within the three-year limitations period are Gray’s alleged

refusals to “close out” (i.e., to complete the financial reconciliation of) the

Fahs contract. But there are no comparable allegations about the treatment


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Lancaster received during the close-out phase of its contract.3 Because Fahs

has not alleged any “non-time-barred acts” of discrimination, there is no basis

to delay the start of the limitations period. Id. And because the only

differential treatment alleged in the complaint took place outside the

limitations period, Fahs’s Equal Protection claim is time barred.

       We have considered Fahs’s remaining arguments and find them

unpersuasive. Accordingly, the judgment of the District Court is

AFFIRMED.




       3
          In support of its Equal Protection claim, Fahs proffered to the District Court a
document, obtained through a public records request, purportedly demonstrating that the
close-out period of Lancaster’s contract with DOT extended through July 2008, within the
limitations period. We discern no error in the District Court’s denial of Fahs’s request to
take judicial notice of this document pursuant to Federal Rule of Evidence 201(b). But even
if we did, we would still affirm the dismissal of Fahs’s Equal Protection claim. That the
Lancaster close-out period continued into July 2008 says nothing about the treatment
Lancaster received during that period, much less render plausible the claim that Fahs
received less favorable treatment than Lancaster. Fahs’s suggestion that it needs discovery
to allege its Equal Protection claim more fully is unavailing. See Fink v. Time Warner
Cable, 714 F.3d 739, 742 (2d Cir. 2013) (per curiam).

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