Fahs Construction Group, Inc. v. Gray
2013 U.S. App. LEXIS 16400
| 2d Cir. | 2013Background
- Fahs Construction Group, Inc. contracted with the New York DOT to perform roadway construction and paving work.
- Gray, a DOT construction supervisor, allegedly retaliated against Fahs after Fahs’s disputes with DOT on two projects.
- Fahs sued in district court asserting First Amendment and Equal Protection claims.
- Fahs is an independent contractor, not a DOT employee, but Umbehr extends some First Amendment protection to contractors.
- The district court dismissed both claims; the Second Circuit affirms, holding the First Amendment claim unavailable because Fahs spoke on a private, not public, concern and the Equal Protection claim time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment public-concern question | Fahs spoke as a citizen on DOT-related issues. | Speech concerned Fahs’s own claims, not public DOT practices. | Speech not on a matter of public concern; claim rejected. |
| First Amendment applicability to independent contractors | Umbehr applies; Fahs enjoys similar protections. | Independent contractors have narrower protection; selective use. | No balancing needed; no First Amendment claim. |
| Equal Protection class-of-one timeliness | Discrimination occurred within limitations period. | Discrimination largely outside the period; claims time-barred. | Time-barred; no continuing violation exception established. |
| Non-time-barred acts for continuing policy | Some within period show ongoing discrimination. | Lack of non-time-barred acts showing ongoing policy. | Insufficient non-time-barred acts; no delay of accrual. |
Key Cases Cited
- Pickering v. Board of Education, 391 U.S. 565 (1968) (public employee speech on matters of public concern balancing test)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (public employee speech on public concern; balancing test applied)
- Umbehr v. Board of County Commissioners, 518 U.S. 668 (1996) (contractor speech protected; Pickering adjusted for contractor status)
- Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011) (speech emphasis and personal vs. public concern; nonpublic framing)
- Engquist v. Oregon Dept. of Agric., 553 U.S. 591 (2008) (class-of-one theory applicability limited in public employment; not central here)