11-4582-cv
Finn v. N.Y. State Office of Mental Health



                                   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 10th day of December, two thousand and twelve.

PRESENT:

                    JOSÉ A. CABRANES,
                    REENA RAGGI,
                    PETER W. HALL,

                                        Circuit Judges.

_____________________________________

CARL FINN,

                              Plaintiff-Appellant,

                    v.                                              No. 11-4582-cv

NEW YORK STATE OFFICE OF MENTAL
HEALTH–ROCKLAND PSYCHIATRIC CENTER,
JEROME FORMAN, OSMOND CLARKE,
NIRANJANA PATEL, NEW YORK STATE
OFFICE OF MENTAL HEALTH,

                  Defendants-Appellees.
_____________________________________




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FOR PLAINTIFF-APPELLANT:                                           Steven Seltzer, Jacob E. Lewin, Yuen
                                                                   Roccanova Seltzer & Sverd P.C., New York,
                                                                   NY.

FOR DEFENDANTS-APPELLEES:                                          David Lawrence III, Assistant Solicitor
                                                                   General, Michael S. Belohlavek, Senior
                                                                   Counsel, Barbara D. Underwood, Solicitor
                                                                   General, for Eric T. Schneiderman, Attorney
                                                                   General of the State of New York, New York,
                                                                   NY.

     Appeal from a judgment of the United States District Court for the Southern District of
New York (Vincent L. Briccetti, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

         From 2005 to 2007, plaintiff-appellant Carl Finn was employed at the Rockland Psychiatric
Center (“RPC”)—a facility operated by the New York State Office of Mental Health. Finn alleges
that he experienced discrimination at RPC on account of his race, and that he was fired because of
his efforts to expose the discriminatory practices at RPC as well as problems with the food served at
the facility. Based on those underlying factual allegations, Finn brought the following claims in
federal court against RPC, the New York State Office of Mental Health, and various coworkers:
(1) employment discrimination on account of his race in violation of 42 U.S.C. § 2000e (“Title VII”);
(2) unlawful retaliation based on his allegations of racial discrimination in violation of Title VII;
(3) unlawful retaliation for purportedly protected speech under the First Amendment;
(4) termination without due process in violation of the Fourteenth Amendment;1 and (5) analogous
claims under the New York State Constitution and the New York Human Rights Law, see N.Y.
Exec. Law §§ 296, 297. Finn’s complaint sought damages and reinstatement.

         Following discovery, the defendants moved for summary judgment with respect to each
claim. In a memorandum opinion and order dated October 6, 2011, the District Court granted
summary judgment to the defendants with respect to all of Finn’s claims. The Court based its
decision on numerous grounds, many of which are summarized in our discussion. We assume the
parties’ familiarity with the facts and procedural history of this case.




1 Finn brought the third and fourth of these claims under 42 U.S.C. § 1983, which provides a private right of action to

vindicate federal rights violated under the color of state authority. Finn does not appeal the District Court’s dismissal of
his due-process claim.

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                                             DISCUSSION

        We review an award of summary judgment de novo, “construing the evidence in the light most
favorable to the non-moving party and drawing all reasonable inferences in [his] favor.” Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010). Summary judgment is appropriate
if “the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute exists “if ‘the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Gen. Star
Nat’l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009) (quoting Roe v. City of
Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)).

        Having reviewed the record de novo, we affirm the judgment of the District Court for
substantially the reasons stated in its well-reasoned memorandum opinion and order dated October
6, 2011. We now briefly summarize those reasons.

        With respect to Finn’s assertion of intentional discrimination, the District Court held that
Finn had not shown a genuine dispute of fact regarding alleged discrimination in RPC’s overtime
distribution. See Special App’x 22–23. We agree. The differences in overtime hours were minimal
to begin with, and are easily explained by the higher rate at which African-American employees
declined overtime opportunities. See id. at 22. No reasonable jury could have returned a verdict for
Finn on this claim.

          With respect to Finn’s retaliation claim under Title VII, we agree with the District Court’s
assessment that Finn has not presented sufficient evidence to create a genuine dispute of fact
regarding whether his purportedly “similarly situated” comparators were, in fact, similarly situated.
See id. at 25–29. We also agree that evidence of statements made by various RPC employees to Finn
could not, when understood in context, “be construed by a reasonable jury as indicating an intent to
stifle activities protected by Title VII.” Id. at 30; see also id. at 30–32 (explaining the context of each
statement). The defendants have provided nonretaliatory reasons for Finn’s termination, and Finn
has not pointed to evidence that reasonably supports a finding of unlawful retaliation. See McGuiness
v. Lincoln Hall, 263 F.3d 49, 55 (2d Cir. 2001). Accordingly, we conclude that no reasonable jury
could have returned a verdict in Finn’s favor on this claim.

        With respect to Finn’s allegation of retaliation under the First Amendment and § 1983, we
agree with the District Court’s conclusion that Finn has not presented sufficient evidence to create a
genuine dispute of material fact regarding the alleged causal connection between his termination and
the protected aspect of his efforts to oppose purportedly discriminatory practices at RPC. That
conclusion is bolstered by a long list of complaints by RPC employees regarding Finn’s
insubordinate and threatening conduct. Moreover, as the District Court pointed out, the manner of

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Finn’s speech was “threatening, rude, and offensive” and therefore provided valid grounds for his
dismissal. Id. at 35. Having reviewed the record, we conclude that no reasonable jury could find
that Finn was retaliated against because of protected speech.

        We also agree with the District Court’s conclusion that Finn’s comments about food-safety
issues at RPC were unprotected because they were made pursuant to his job responsibilities as a
food service worker. See id. at 35–37. And Finn’s allegations of retaliation by Clarke cannot prevail
either. Based on the evidence in the record, Clarke and Finn obviously had a bitter personal
relationship, but Clarke was not in charge of Finn’s termination, nor did his purported hostile
behavior come about because he was “clothed with the authority of state law.” United States v. Walsh,
194 F.3d 37, 51 (2d Cir. 1999). Intramural personal disputes of this sort between state-employed
coworkers do not violate the federal constitution.

        Finally, the District Court held that because Finn had not raised a dispute of material fact
with regard to his discrimination or retaliation claims, “there can be no claim that any individual
employees violated his state law rights.” Special App’x at 38. Finn does not contest this aspect of
the District Court’s decision; rather, he argues that because the District Court erred in its analysis of
the other claims, the state-law claims should be reinstated. See Appellant’s Br. 57. As we noted
above, the District Court properly awarded summary judgment with respect to each of Finn’s federal
claims, and therefore we have nothing left to decide with respect to the state-law claims.

                                           CONCLUSION

       We have considered all of Finn’s arguments on appeal and find them to be without merit.
Accordingly, for the reasons stated above, we AFFIRM the judgment of the District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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