18-3218
Freeman v. Kirisits

                             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 TO 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 11th day of June, two thousand twenty.

        PRESENT: RICHARD J. SULLIVAN,
                         MICHAEL H. PARK,
                         WILLIAM J. NARDINI,
                                 Circuit Judges.
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        DWAYNE FREEMAN,

                           Plaintiff-Appellant,

                      v.                                                     No. 18-3218

        CHRISTOPHER KIRISITS, in his individual
        capacity, PHIL GRIFFIN, in his individual
        capacity, COLOMBA MISSERITTI, in his
        individual capacity, DOUG LEE, in his individual
        capacity, LINDA GRAY, in her individual
        capacity, LIDIA COLAK, in her individual
        capacity, ROCHESTER PSYCHIATRIC CENTER,
           CYNTHIA CROWELL, in her individual capacity,
           THOMAS RINALDO, ANDREW M. CUOMO, in
           his individual capacity, JOHN BURROWS, in his
           individual capacity, MATTHEW MATNEY, in his
           individual capacity, VICKY EUDELL, in her
           official capacity, NEW YORK STATE OFFICE OF
           MENTAL HEALTH (“OMH”),

                           Defendants-Appellees,

           LISE G. GELERNTER,

                           Respondent-Appellee. *

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           FOR PLAINTIFF-APPELLANT:                          VALDI LICUL, Wigdor LLP, New
                                                             York, NY (Yannick A. Grant, on the
                                                             brief, Vladeck, Raskin & Clark P.C.,
                                                             New York, NY).

           FOR DEFENDANTS-APPELLEES:                         LAURA        ETLINGER,          Assistant
                                                             Solicitor   General        (Barbara    D.
                                                             Underwood,        Solicitor       General,
                                                             Andrew Oser, Assistant Solicitor
                                                             General, on the brief), for Letitia James,
                                                             Attorney General, State of New York,
                                                             Albany, NY.

           FOR RESPONDENT-APPELLEE:                          NICHOLAS A. ROMANO, Connors
                                                             LLP, Buffalo, NY.

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

District of New York (Michael A. Telesca, J.).




*   The Clerk of the Court is respectfully directed to amend the caption as set forth above.
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        UPON     DUE     CONSIDERATION,          IT   IS   HEREBY      ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

        Plaintiff-Appellant Dwayne Freeman appeals from orders of the district

court (Telesca, J.) dismissing his discrimination and due process claims against his

former employer, the Rochester Psychiatric Center (“RPC”), the New York State

Office of Mental Health (“OMH”), and various employees of RPC and OMH. In

addition, Freeman appeals a decision of the magistrate judge (Payson, Mag.)

denying his motion to compel production of an audio recording of his termination

hearing. We assume the parties’ familiarity with the underlying facts and the

record of prior proceedings, to which we refer only as necessary to explain our

decision to affirm.

   I.      Notice of Appeal

        As a preliminary matter, Defendants argue that this Court lacks jurisdiction

to address Freeman’s due process and equal protection claims because his notice

of appeal was expressly limited to four specific questions not relevant to those

claims. We disagree.

        A notice of appeal must “designate the judgment, order, or part thereof



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being appealed.” Fed. R. App. P. 3(c)(1)(B). “[I]t is well settled that courts should

apply a liberal interpretation to that requirement,” particularly with respect to “a

notice of appeal filed by a pro se litigant.” Elliott v. City of Hartford, 823 F.3d 170,

172 (2d Cir. 2016) (internal quotation marks omitted). So long as a “pro se party’s

notice of appeal evinces an intent to appeal an order or judgment of the district

court and appellee has not been prejudiced or misled,” technical defects “will not

bar appellate jurisdiction.” Id. at 172–73 (internal quotation marks omitted); see

also Phelps v. Kapnolas, 123 F.3d 91, 93 (2d Cir. 1997) (construing pro se notice of

appeal of final disposition to create jurisdiction over earlier orders).

      Freeman’s notice of appeal stated his intent to appeal from “the final

judgment” as well as orders relevant to his due process and equal protection

claims.   App’x at 885–86.     And while the notice also included four specific

“questions of [l]aw,” three of which Freeman did not ultimately pursue, it never

suggested that the list was exhaustive or that his appeal was limited to those

questions. Id. at 886. Construing the notice liberally, we are satisfied that Freeman

adequately conveyed his intent to appeal the judgment and orders of the district

court, and we are aware of no prejudice suffered by Defendants as a result of the

notice that was filed. Accordingly, we conclude that we have jurisdiction over



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Freeman’s challenges to the final judgment and the orders dismissing his claims

that are subsumed in that judgment.

   II.      Dismissal for Failure to State a Claim

         We review de novo a district court’s grant of a motion to dismiss for failure

to state a claim. Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). A

complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible when

the pleaded facts “allow[] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Though the Court must accept factual allegations as true, “mere conclusory

statements” and legal conclusions “are not entitled to the assumption of truth.” Id.

at 678–79. Applying these principles, we find that Freeman fails to state a plausible

claim to relief for violations of his procedural due process rights, the Rehabilitation

Act, and the Equal Protection Clause.

            A. Procedural Due Process

         Freeman’s allegations do not plausibly allege a procedural due process

claim, either in connection with his first unpaid suspension or his second unpaid

suspension and full arbitration hearing. Freeman argues that because Defendants



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acted pursuant to “state procedures, rather than random acts, the availability of

post-deprivation procedures will not, ipso facto, satisfy due process.” Freeman

Br. at 52 (brackets and internal quotation marks omitted). Even assuming –

without deciding – that Freeman’s characterization is correct, his claim fails. “Due

process does not, in all cases, require a hearing before the state interferes with a

protected interest, so long as some form of hearing is provided before an

individual is finally deprived of the property interest.” Nnebe v. Daus, 644 F.3d

147, 158 (2d Cir. 2011) (brackets and internal quotation marks omitted). The

balancing test established in Mathews v. Eldridge, 424 U.S. 319 (1976) – under which

we weigh the private interest, the risk of erroneous deprivation, and the

government’s interest – provides guidance as to whether a pre-deprivation

hearing is required and generally “what kind of procedure is due.” Nnebe, 644

F.3d at 158 (internal quotation marks omitted).

      As to Freeman’s first suspension, these factors favor Defendants, even if we

assume the strength of Freeman’s private interest in his salary. The government’s

interest in avoiding significant interference with the operations of a mental health

facility, which directly impacts the health and safety of patients, is obviously high.

Further, the risk of erroneous deprivation of a temporary suspension is mitigated



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by Freeman’s right to a full hearing under his collective bargaining agreement and

the possibility of back pay. See id. at 159. We thus find that, “insofar as the post-

suspension hearing affords adequate process, no pre-suspension hearing is

required.” Id.

      Given that Freeman was contractually entitled to proceed to a full hearing

but instead chose to return to work rather than remain on unpaid suspension

pending a full hearing, it cannot be seriously argued that he was deprived of

adequate process. Cf. Costello v. Town of Fairfield, 811 F.2d 782, 784 (2d Cir. 1987)

(rejecting “[a]t this time” “appellants’ argument that the grievance procedure is an

ineffective post-deprivation remedy” where appellants “did not avail themselves

of the grievance procedure” that allowed them to “pursue their claim . . .

culminating in binding arbitration”); id. at 787 (Van Graafeiland, J., concurring)

(“Appellants cannot establish the insufficiency of grievance procedures simply by

refusing to utilize them.”). Nor does Freeman plead any non-conclusory facts that

could plausibly support a finding that he unknowingly or involuntarily waived

his rights under the collective bargaining agreement. Accordingly, Freeman fails

to state a claim that he was deprived of due process in connection with his first

unpaid suspension.



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      Freeman fares no better with respect to the second suspension. As an initial

matter, we note that before being placed on unpaid suspension, Freeman was put

on paid administrative leave pending an investigation. Freeman thus had notice

that he could soon be disciplined for violating RPC’s insubordination policy.

Indeed, during that leave, Freeman sent one of the individual Defendants a typed

document outlining factors Freeman believed Defendants should consider during

the investigation.    Freeman emphasized that RPC’s insubordination policy

allowed employees to refuse orders that constituted threats to health or safety, and

claimed that Defendants violated his constitutional rights. Though Freeman had

not yet received the notice of discipline leading to his termination, the fact that he

sent such a letter suggests that he had some opportunity to respond “in writing,

why [the likely] proposed action [of additional unpaid suspension or termination]

should not be taken.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).

      In any event, even if Freeman lacked notice and opportunity to be heard

before his leave turned into unpaid suspension, he timely grieved and requested

– and received – a full evidentiary hearing. To argue that such post-deprivation

process was inadequate, Freeman alleges only that the hearing was delayed and

that Defendants lied at the hearing. A complaint that “merely recites the course



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of proceedings and concludes that the denial of a ‘speedy resolution’ violated due

process” fails to state a claim of constitutional deprivation. Id. at 547. Similarly,

Freeman’s bare assertions that Defendants lied under oath about the conditions in

the geriatric unit (“E1”) or other matters in dispute are unsupported by any

specific facts.   They are merely “conclusory allegations or legal conclusions

masquerading as factual conclusions,” which are insufficient to defeat a motion to

dismiss. Siegel v. HSBC N. Am. Holdings, Inc., 933 F.3d 217, 222 (2d Cir. 2019)

(internal quotation marks omitted). Accordingly, we affirm the district court’s

dismissal of Freeman’s due process claims.

          B. Rehabilitation Act

      Freeman next argues that the district court erred in dismissing his claims

against RPC and OMH for failure to provide a reasonable accommodation under

the Rehabilitation Act. Because Freeman fails to plausibly allege that he has a

disability within the meaning of the Act, we affirm the district court’s dismissal.

      In considering a Rehabilitation Act claim based on an employer’s alleged

failure to accommodate a disability, we examine, among other things, whether a

plaintiff sufficiently pleads facts that plausibly support that “the plaintiff is a

person with a disability under the meaning of the statute in question.” Costabile v.



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N.Y.C. Health & Hosps. Corp., 951 F.3d 77, 81 (2d Cir. 2020) (internal quotation

marks omitted). The Rehabilitation Act takes its definition of “disability” from the

Americans with Disabilities Act (“ADA”). See 29 U.S.C. § 705(9)(B). As relevant

here, the ADA defines “disability” to mean “a physical or mental impairment that

substantially limits one or more major life activities of such individual.” 42 U.S.C.

§ 12102(1)(A).

      Freeman’s allegations do not suggest that he is substantially limited in

engaging in either the major life activity of “working” or the major life activity of

“concentrating [and] thinking.” Id. § 12102(2)(A). “To be substantially limited in

the major life activity of working . . . one must be precluded from more than one

type of job, a specialized job, or a particular job of choice.” Sutton v. United Air

Lines, Inc., 527 U.S. 471, 492 (1999), superseded on other grounds by 42 U.S.C.

§ 12102(3)(A). Freeman’s own complaint indicates that he was willing and able to

work anywhere within RPC besides the E1 unit, and that his discussions with his

therapist about his symptoms specifically centered on “the loud and noisy

atmosphere on the E1 unit.” App’x at 785. Accordingly, Freeman’s allegations do

not make plausible that he was substantially limited in the major life activity of

working. See Woolf v. Strada, 949 F.3d 89, 94 (2d Cir. 2020) (recognizing the



                                         10
“longstanding, common-sense principle of law . . . that employees who are

precluded only from doing their specific job . . . do not have a ‘disability’”); Heilweil

v. Mount Sinai Hosp., 32 F.3d 718, 724 (2d Cir. 1994) (finding that the plaintiff’s

condition did not substantially limit her ability to work when she “was medically

restricted from working in only one place in the hospital”).

      Nor do Freeman’s allegations reflect that he was substantially limited in the

major life activities of concentrating and thinking. Though Freeman states in his

complaint that he “was already seeking therapy because of an anxiety disorder,”

he alleges no facts to suggest that such disorder substantially limited or impaired

his ability to think or concentrate outside the E1 unit. App’x at 785. Further, the

letters from Freeman’s therapist that are attached to the complaint specify only

that, “[a]s a result of working with geriatric inpatients,” Freeman experienced

“disruptive symptoms” and that “[w]hen not working with this geriatric

population,” his mood was more stable. App’x at 822. Accordingly, the facts

included in Freeman’s complaint do not support an inference that his ability to

engage in the major life activities of concentrating and thinking was restricted in

more than “a limited way.” Heilweil, 32 F.3d at 723.

      Finally, we reject Freeman’s argument that he qualifies as having a disability



                                           11
because he was “regarded as having . . . an impairment” that substantially limited

a major life activity. 42 U.S.C. § 12102(1)(C). Significantly, Freeman alleges that

Defendants accused him of lying about his disorder, which undermines the

assertion that Defendants regarded him as having a disability. Freeman thus fails

to state any claim to relief under the “regarded as” prong.

         C. Section 1983 Claims for Rehabilitation Act Violations

      Freeman argues in his opening brief that the district court erred in

dismissing his § 1983 claims against individual defendants for violations of the

Rehabilitation Act. In his reply, however, Freeman acknowledges that this Court’s

decision in Costabile v. New York City Health & Hospitals Corp., which held that “the

rights established in the Rehabilitation Act may not be enforced through § 1983,”

disposes of that claim. 951 F.3d at 83. Accordingly, we affirm the district court’s

dismissal of these claims.

         D. Equal Protection Clause

      To survive a motion to dismiss, a plaintiff advancing an equal protection

claim must “plausibly allege facts that provide at least minimal support for the

proposition that the employer was motivated by discriminatory intent.” Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 86–87 (2d Cir. 2015) (internal quotation



                                         12
marks omitted). Freeman asserts that he received less favorable treatment than a

former colleague “because of gender and other ‘impermissible’ reasons,” in

violation of the Constitution’s equal protection guarantees. App’x at 804. Freeman

alleges that he and that colleague were similarly situated because they both

requested reasonable accommodation for “ailments that qualified [them] as

disabled,” but that Defendants did not suspend his colleague and reacted more

favorably to her request. Id. at 804–05. Without more, these barebones and

conclusory allegations are insufficient to support even a minimal inference that

Defendants were motivated by an intent to discriminate on the basis of sex.

Accordingly, we affirm the district court’s dismissal of this claim.

   III.   Motion to Compel

      Freeman contends that the magistrate judge should have granted his motion

to compel the arbitrator to produce an audio recording of the full arbitration

hearing conducted before Freeman’s termination. Because we affirm the district

court’s dismissal of the Rehabilitation Act claim against RPC – the only claim for

which the recording was requested – this issue is moot. See Weiss v. United States,

199 F.2d 454, 455 (2d Cir. 1952) (holding that “[d]ismissal of the complaint

rendered moot the plaintiff’s [discovery] motions”).



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                                 *     *     *

      We have considered Freeman’s remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the district

court is AFFIRMED.

                                     FOR THE COURT:
                                     Catherine O=Hagan Wolfe, Clerk of Court




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