16-1746
Birch v. City of New York

                     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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 12th day of January, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             ROBERT D. SACK,
             SUSAN L. CARNEY,
                           Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    MICHAEL BIRCH,
             Plaintiff-Appellant,

                 -v.-                                               16-1746

    CITY OF NEW YORK,
    RAYMOND KELLY,
    WILLIAM J. BRATTON,
    JOSEPH FOX,
    CONSTANTIN TSACHAS,
             Defendants-Appellees.*
    - - - - - - - - - - - - - - - - - - - -X



           *
           The Clerk of Court is respectfully directed to amend
    the caption as set forth above.
                                             1
FOR APPELLANT:             Chukwuemeka Nwokoro, Nwokoro &
                           Scolo, Esquires, New York, NY.

FOR APPELLEES:             Jane L. Gordon (with Deborah A.
                           Brenner on the brief), for
                           Zachary W. Carter, Corporation
                           Counsel of the City of New York,
                           New York, NY.

     Appeal from a judgment of the United States District
Court for the Eastern District of New York (Cogan, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Michael Birch appeals from the judgment of the United
States District Court for the Eastern District of New York
(Cogan, J.), dismissing his complaint in which he alleges
claims under 42 U.S.C. § 1983 against various police
officials (collectively “the Police Department”) and the
City of New York (“the City”). Birch, a member of the
Police Department, alleges that he criticized what he viewed
as an illegal “quota” system imposed by his supervisors, and
suffered retaliation for his protected speech. The alleged
retaliatory acts occurred in 2011, 2012, 2014, and 2015.
His claims against the City are pursuant to Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978). Dismissal for failure
to state a claim is reviewed de novo. Smith v. Campbell,
782 F.3d 93, 98 (2d Cir. 2015). We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented for review.

     1. Retaliation claims brought under § 1983 must be
asserted within three years of the offending acts. Id. at
100 (“The Statute of Limitations for claims brought under
Section 1983 is governed by state law, and in this case is
the three-year period for personal injury actions under New
York State law.”). Because the complaint was filed on
January 5, 2016, any claims based on acts prior to January
5, 2013, would normally be found untimely. Birch attempts
to preserve his claims on the ground that all of the
retaliatory acts were part of a single “practice and
pattern” that “continue[d] into the statutory [limitations]
period.” Appellant’s Br. at 12, 13. But the continuing
violations doctrine is inapplicable here.


                             2
     Birch contends that he “alleged a continuous practice
and pattern of punishing officers . . . who speak out
against . . . the illegal quota.” Appellant’s Br. at 12.
However, the complaint is based primarily on a series of
discrete alleged retaliatory events such as punitive
transfers, undesirable assignments, and poor performance
reviews. Such “discrete discriminatory acts are not
actionable if time barred, even when they are related to
acts alleged in timely filed charges.”1 Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see
Chin v. Port Auth., 685 F.3d 135, 157 (2d Cir. 2012)
(“Discrete acts of this sort, which fall outside the
limitations period, cannot be brought within it, even when
undertaken pursuant to a general policy that results in
other discrete acts occurring within the limitations
period.”). Because the continuing violation doctrine does
not apply, all of Birch’s retaliation claims based on pre-
2013 acts are time-barred.

     Birch’s complaint does allege some retaliatory acts in
2014 and 2015. However, these claims fail nevertheless
because Birch does not plausibly allege “that there was a
causal connection between the protected speech and the
adverse action[s].” Dolan v. Connolly, 794 F.3d 290, 294
(2d Cir. 2015) (quoting Espinal v. Goord, 558 F.3d 119, 128
(2d Cir. 2009)). “A plaintiff may establish causation
either directly through a showing of retaliatory animus, or
indirectly through a showing that the protected activity was
followed closely by the adverse action.” Smith v. Cty. of
Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (citing Cobb v.
Pozzi, 363 F.3d 89, 108 (2d Cir. 2004)). Birch’s brief does
not argue causation based on a showing of retaliatory


    1
       Birch also alleges that, as a result of the
(retaliatory) performance reviews, he was barred from
certain types of work and from receiving certain benefits
for a time period extending into the statutory limitations
period. He argues that his claims based on acts occurring
before 2013 are therefore timely because they led to
negative repercussions occurring in 2013 or later. That
argument is foreclosed by Harris v. City of New York, which
held that “a continuing violation cannot be established
merely because the claimant continues to feel the effects of
a time-barred discriminatory act.” 186 F.3d 243, 250 (2d
Cir. 1999) (citing Lightfoot v. Union Carbide Corp., 110
F.3d 898, 907 (2d Cir. 1997)).
                             3
animus, so Birch must allege causation by demonstrating that
his “protected activity was followed closely by . . .
adverse action.” Id.

     Birch cannot make that showing. He alleges that he
engaged in protected speech in December 2011 and August
2012, but he concedes that he suffered no adverse employment
actions between September 2012 and February 2014. Hence,
Birch’s earliest, non-time-barred retaliatory action
occurred at least seventeen months after Birch’s most recent
exercise of protected speech. This interval is too long to
support an inference of causation. See Burkybile v. Bd. of
Educ., 411 F.3d 306 (2d Cir. 2005) (declining to find a
causal connection when “more than a year passed between [the
plaintiff’s] accusations . . . and the initiation of
disciplinary proceedings”); see also Murray v. Visiting
Nurse Servs., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007)
(“[D]istrict courts within the Second Circuit have
consistently held that the passage of two to three months
between the protected activity and the adverse employment
action does not allow for an inference of causation.”).

     Therefore, all of Birch’s retaliation claims are either
time-barred or fail to adequately allege causation.2

     2. Birch’s claims against the City, brought pursuant
to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), are
also untimely. This is true even though the statute of
limitations for Birch’s Monell claims might have began to
run later than it did for his retaliation claims:

    Since an actionable [Monell] claim . . . against a
    . . . municipality depends on a harm stemming from
    the municipality’s “policy or custom,” . . . a
    cause of action against the municipality does not
    necessarily accrue upon the occurrence of a
    harmful act, but only later when it is clear, or
    should be clear, that the harmful act is the
    consequence of a [municipality’s] “policy or
    custom.”




    2
       Given this conclusion, we need not consider the
individual defendants’ alternative argument that they are
entitled to qualified immunity.
                             4
Pinaud v. Cty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995)
(citing Monell, 436 U.S. at 694). In light of Pinaud, the
limitations period for Birch’s Monell claims did not begin
until such time as he should have known that his adverse
actions resulted from the City’s “policy or custom.”

     Assuming that Birch plausibly alleged the existence of
a “policy or custom” that resulted in a deprivation of his
First Amendment rights, Birch should have known about such a
custom by 2012 at the latest. By that time, Birch had
received several poor performance ratings, which he claims
were part of a program “used [by the Police Department] to
unfairly punish police officers who refuse to meet the
illegal ‘performance goals’ imposed upon them.” App’x at
38. Because Birch’s statutory limitations period began no
later than 2012, his filing of the complaint in January 2016
falls outside the three-year statute of limitations. Smith
v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015).

     For the foregoing reasons, and finding no merit in
Birch’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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