626 F. App'x 20
2d Cir.2015Background
- Plaintiff John L. Weslowski, a county attorney, was terminated in 2009 and brought federal and state claims challenging his firing.
- He alleged violations of 42 U.S.C. §§ 1983 and 1985 (First Amendment, procedural and substantive due process, equal protection) and an anti-retaliation claim under the False Claims Act (31 U.S.C. § 3730(h)).
- The District Court dismissed his federal claims and declined supplemental jurisdiction over state-law claims; it also denied leave to amend a second time.
- Key facts include Weslowski’s alleged passive viewing of sexually explicit material at work and his refusal to approve a HUD-funded contract with Spring Valley NAACP on legal-authority grounds.
- On appeal, the Second Circuit reviewed the Rule 12(b)(6) dismissals de novo and affirmed the District Court’s dismissals for failure to state plausible claims.
- The Court affirmed the § 1983/§ 1985 and substantive due process dismissals for the reasons in the district opinions, and affirmed the FCA retaliation dismissal on the alternative ground that the County lacked notice that his conduct was protected under § 3730(h).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment / §§ 1983 & 1985 (speech on public concern) | Weslowski claimed termination violated his free‑speech rights (viewing sexually explicit material). | County argued the conduct was not speech on a matter of public concern and therefore not protected. | Court: Viewing sexually explicit material at work was not speech on public concern; § 1983/§ 1985 claims fail. |
| Procedural Due Process | Weslowski claimed deprivation of property/employment without adequate process. | County argued post-deprivation remedies (Article 78) satisfied due process. | Court: Availability of Article 78 provided adequate process; procedural due process claim fails. |
| Substantive Due Process | Weslowski argued a liberty interest was violated by termination over viewing explicit material. | County argued no constitutionally protected liberty interest in access to explicit material at work. | Court: No protected liberty interest; substantive due process claim fails. |
| FCA § 3730(h) retaliation | Weslowski asserted he was retaliated against for refusing to approve a contract to stop an FCA violation. | County argued it was not aware his refusal was protected FCA activity. | Court: Dismissed FCA retaliation claim—plaintiff failed to allege the County knew his conduct was in furtherance of stopping an FCA violation. |
Key Cases Cited
- Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) (standard of review for Rule 12(b)(6))
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to assumed truth)
- Olsen v. Pratt & Whitney Aircraft, Div. of United Techs. Corp., 136 F.3d 273 (2d Cir. 1998) (appellate affirmance on any sufficient ground)
- Weslowski v. Zugibe, 14 F. Supp. 3d 295 (S.D.N.Y. 2014) (district court opinion addressing §§ 1983/1985 and leave to amend)
- Weslowski v. Zugibe, 96 F. Supp. 3d 308 (S.D.N.Y. 2015) (district court opinion addressing substantive due process and supplemental jurisdiction)