SCOTT P. SPECHT v. THE CITY OF NEW YORK, THOMAS KANE, AND JOHN DAVID LYNN
No. 20-4211-cv
United States Court of Appeals For the Second Circuit
October 6, 2021
August Term, 2020; (Argued June 22, 2021; Decided October 6, 2021)
Before: NEWMAN, CABRANES, and PARKER, Circuit Judges.
NATHANIEL B. SMITH, Law Office of Nathaniel B. Smith, New York, New York, for Plaintiff-Appellant.
JAMES E. JOHNSON, (Jonathan A. Popolow, on the brief), Corporation Counsel of the City of New York, New York, New York, for Defendants-Appellees.
BARRINGTON D. PARKER, Circuit Judge:
BACKGROUND
Scott P. Specht appeals from a judgment of the United States District Court for the Eastern District of New York (Vitaliano, J.) dismissing pursuant to Rule 12(b)(6) his First Amendment retaliation and state law claims. See
Specht joined the Fire Department of New York (FDNY) in 2003 and was promoted to fire marshal in 2014, where his primary responsibilities involved investigating the origins of fires. This lawsuit arose from Specht‘s work investigating a fire in March 2018 that destroyed a five-story brownstone in Manhattan where a motion picture was being filmed. The fire resulted in serious damage to the building and the death of a firefighter.
Over the course of his investigation, Specht alleges, he studied physical evidence from the fire and interviewed witnesses. He tentatively concluded that the cause of the fire was either a boiler that had been the subject of unauthorized repairs, or the activities of the movie production crew. Ultimately, he informed his supervisors, Chief Fire Marshal Thomas Kane and Assistant Chief Fire Marshal John David Lynn, that his tentative conclusion was that the fire was the result of work done by the movie crew. He concluded that the movie crew had improperly installed high-intensity
Specht alleges that about three weeks into his investigation, Kane and Lynn convened a meeting at FDNY headquarters where they demanded that he prematurely terminate his work and ordered him to file a final report concluding that a flue connected to the boiler caused the fire. Specht told them, he alleges, that there was no basis for that conclusion and that his investigation had not been completed. Following this meeting, Specht told his immediate supervisor that he could not and would not file such a report as directed by Kane and Lynn. The supervisor allegedly told him that if he did not comply, he would be committing career suicide. Specht speculated that his superiors in the Department pushed the boiler theory because they did not want to embarrass the film production crew because film production was a highly lucrative source of revenue for the City.
About two weeks later, another meeting was convened at FDNY headquarters where, Specht alleges, he was verbally attacked by Kane, Lynn and other FDNY officers present for failing to file the report as directed and was again instructed to do so. He also alleges that, contrary to accepted
Specht alleges that his supervisors’ direction to file a false report was an attempt to cover up the origins of the fire and constituted official misconduct. He further alleges that after his removal from the investigation, he publicly voiced his views both inside and outside the Department that the report contained false conclusions about the origins of the fire. On May 1, 2018, he emailed his fellow Fire Marshals alluding to what had happened to him, stating in part:
My advice to the members of the Bureau of Fire Investigation is to stay true to your methodology, your training, and yourself. Do not succumb to the great pressures that will be placed upon you by the supervisory members of this bureau. At the end of the day, it will be YOU answering to your methods under oath. More importantly, it will be YOU answering to the reflection you see in the mirror.
Specht alleges that following this email, he continued to complain about the incident, this time outside the Department. In June 2018, he met with representatives of the New York City Department of Investigation (DOI) and reported his complaints about Kane‘s and Lynn‘s actions. The next month, he filed a Notice of Claim with the New York City Comptroller‘s Office stating his intention to sue Lynn, Kane, and the City of New York for retaliation. The Notice of Claim asserted, among other things, that Kane and Lynn improperly terminated Specht‘s investigation of the fire; that Kane and Lynn‘s conduct improperly permitted a movie company to circumvent a full investigation of the fire; and that Kane and Lynn had improperly removed him from the investigation as part of their efforts to conceal the movie company‘s role in the fire. The next day, July 18, New York Daily News picked up the story and published an article reporting the Notice of Claim. The article‘s headline stated that [l]egal papers suggest FDNY coverup in probe of fatal Harlem fire on Edward Norton set and reported Specht‘s allegations that his FDNY supervisors
In September 2018, Lynn and Kane placed Specht on modified duty status. This reassignment, Specht contends, was without justification, substantially reduced his job responsibilities, and denied him overtime opportunities. He contends that this demotion pushed him to apply for disability retirement benefits. The application was delayed but eventually approved. But the delay and the loss of overtime reduced his retirement benefits.
Specht then sued Kane, Lynn, and the City of New York in state court. His complaint asserted a
The district court granted the motion. It held that Specht‘s First Amendment retaliation claim involved speech that was not constitutionally protected because it concerned only internal workplace issues rather than
The district court also held that Specht failed to plead a valid
Finally, the district court denied Specht leave to amend the complaint, concluding that he would not be able give his claims the significant shot in the arm required to resuscitate them. This appeal followed.
STANDARD OF REVIEW
We review the grant of a Rule 12(b)(6) motion to dismiss de novo. See Montero v. City of Yonkers, New York, 890 F.3d 386, 394 (2d Cir. 2018). We accept the factual allegations as true and draw[] all reasonable inferences in favor of the plaintiff. Id. But those allegations must meet the plausibility standard set out
DISCUSSION
I.
To survive a motion to dismiss, a plaintiff claiming that he was retaliated against in violation of the First Amendment must plausibly allege that (1) he engaged in speech or activity that was protected by the First Amendment; (2) he suffered an adverse employment action; and (3) a causal connection existed between the adverse action and the protected activity. Smith v. County of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015). The speech of a public employee is protected by the First Amendment when the employee speaks as a citizen on a matter of public concern, rather than pursuant to his employment responsibilities. Garcetti, 547 U.S. at 420-21.
A.
Whether speech is on a matter of public concern presents a question of law that takes into consideration the content, form, and context of a given statement. Montero, 890 F.3d at 399. Speech deals with matters of public concern when it can be fairly considered as relating to matters of political, social, or general interest to
A number of our prior cases have considered whether a public employee‘s speech touches on a matter of public concern. In Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), for example, the plaintiff, a police officer, alleged that he had been fired for refusing to retract a report that he had made in support of a civilian complaint accusing another officer of using excessive force. Id. at 230-32. The district court dismissed the suit, holding that the plaintiff‘s refusal was made while he was acting in his role as a police officer. We reversed, concluding that because the filing of a false report would have implicated the officer in criminal misconduct, his refusal to do so could not have been a job requirement. Rather, we reasoned, his refusal was pursuant to the obligation of every citizen to follow
Similarly, in Montero, 890 F.3d at 390, a police officer sued the City of Yonkers Police Department alleging a First Amendment retaliation claim. The officer alleged that he was retaliated against for: (1) criticizing then-Yonkers PBA President Olson‘s relationship with then-Police Commissioner Hartnett; (2) criticizing Hartnett‘s decisions to discontinue several police units that investigate domestic violence and burglary; and (3) calling for a no-confidence vote on Hartnett. The district court dismissed the officer‘s claims, holding that his remarks were made pursuant to his official responsibilities and thus not protected by the First Amendment. With respect to Montero‘s criticism of Olson‘s relationship with Hartnett, we affirmed, reasoning that Montero‘s speech plainly was not of public concern because it reflected a personal rivalry[.] Id. at 400. With respect to both the officer‘s criticisms about the decision to discontinue certain police units and the officer‘s call for a no-confidence vote, however, we reversed. We held that the officer spoke as a citizen on a matter of public concern because, among other reasons, he had alleged that the termination of police units would endanger public safety. Id. at 386.
We agree with the district court that the point of this email was to share with other fire marshals Specht‘s take on the course of the investigation and his reaction to what he considered inappropriate pressure from his supervisors. These are internal workplace grievances, not matters of public concern. Neither the substance nor the intended audience of Specht‘s email—his colleagues—suggests that Specht sought to inform the public on a matter of political, social, or community interest. If the email were ever released to the public, it would convey no information other than the fact that a single employee was upset by an incident that occurred in the workplace. We have been clear that statements that fall into this category do not garner First Amendment protection. See Singer v. Ferro, 711 F.3d 334, 340 (2d Cir. 2013); Singh v. City of New York, 524 F.3d 361, 372 (2d Cir. 2008).
Next, as noted, Specht alleges that in addition to the email, he expressed his views on the handling of the investigation of the fire outside the Department. He reported his complaints about the reaction to his investigation to the New York City Department of Investigation, he filed a Notice of Claim with the City describing what had transpired, he met with representatives of the District Attorney‘s office, and he communicated with the local press, which reported on the events.
We conclude that these reports touch on matters of public concern. To begin with, possible governmental misconduct is a legitimate and an important topic of public concern. Lane v. Franks, 573 U.S. 228, 241 (2014) (concluding that testimony concerning corruption in a public program . . . obviously involves a matter of significant public concern); Singer, 711 F.3d at 340 (recognizing that governmental corruption is plainly a potential topic of public concern); Jackler, 658 F.3d at 236 (reasoning that the [e]xposure of official misconduct . . . is generally of great consequence to the public); Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999) (recognizing that corruption or public wrongdoing is almost
We turn next to Specht‘s refusals to file a report that he alleges would have been false. It is well settled that the First Amendment protects the right of a citizen to choose both what he says and what he does not say. For that reason,
The district court concluded that both Specht‘s reports to entities outside the FDNY and his refusal to file an allegedly false report pertained only to
B.
Specht‘s speech is not protected merely because it touches on a matter of public concern. To receive First Amendment protection, he must also have plausibly pled that he spoke as a citizen, rather than pursuant to his job requirements. Garcetti, 547 U.S. at 418.
In Lane, 573 U.S. at 238-41, the Supreme Court considered what qualifies as citizen speech. There, the director of a state program asserted that he was demoted by the state because of his testimony to a federal grand jury about issues relating to his department‘s payroll. The lower court ruled that the plaintiff had not engaged in citizen speech because his testimony concerned information learned exclusively through his employment.
Our Court, too, has considered what counts as citizen speech. In Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir. 2010), a public-school teacher filed a union grievance criticizing his superiors’ failure to discipline a student who had assaulted him. Id. at 198-99. We held that this grievance was pursuant to his employment—and thus not citizen speech—because it was part-and-parcel of his ability to perform his official duties as a teacher. These included the duty to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning. Id. at 203.
We also thought it significant that Weintraub‘s union grievance lacked a citizen analogue: a relevant analogue to speech by citizens who are not government employees. Id. (internal quotation marks omitted) (quoting Garcetti, 547 U.S. at 424). Two examples of citizen analogues provided by the Court in
In Matthews v. City of New York, 779 F.3d 167, 169 (2d Cir. 2015), we considered whether a police officer had acted as a private citizen in criticizing an arrest-quota policy to his commanders. There, we identified two relevant inquiries: (1) whether the speech fall[s] outside of the employee‘s official responsibilities, and (2) whether a civilian analogue exist[s]. Id. at 173. We concluded that Matthews‘s complaints were not part of what he was employed to do, id. at 174 (Matthews had no role in setting policy; he was neither expected to speak on policy nor consulted on formulating policy.) and that ordinary citizens were also regularly provided the opportunity to raise issues with the [p]recinct commanders, id. at 176 (Matthews did not follow internal grievance procedures, but rather went directly to the [p]recinct commanders . . .
Here, Appellees argue that each time Specht spoke about his investigation into the fire, he did so pursuant to his official duties as a public employee, not as a private citizen. They argue that, since Specht‘s professional duty was to investigate the cause and origin of fires, his critique of his supervisors’ conclusion about the cause of the fire fell within the scope of his duties. Specifically, Appellees claim that [a]ll the speech that Specht claims prompted retaliation—his discussion of the report he planned to write[,] his email to his colleagues about the status of his investigation[,] and his complaints to outside agencies[]—concerned his investigation of the brownstone fire, and thus owed its existence to his official duties.
We are not persuaded. While, as the district court noted, filing an investigative report is part of a fire marshal‘s job, this case involves the refusal to file a false report, which is different than simply filing a report. We have been clear that a refusal to file a false report may receive First Amendment protection. In Jackler, we concluded that the appellant‘s refusals to obey demands to file false
In Lane, the Court observed that the critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee‘s duties, not whether it merely concerns those duties. Lane, 573 U.S. at 240. It is clear to us that the filing of a false report—or the refusal to file one—is most assuredly not within the scope of a public employee‘s duties because, among other reasons, the filing of a false investigative report is a crime in New York. See
By the same token, Specht‘s reporting to the outside agencies what he observed and what he had been asked to do was not done in his capacity as an employee. Although we recognize that the Supreme Court has cautioned that [f]ormal job descriptions often bear little resemblance to, an employee‘s true duties, id. at 424-25, such descriptions are nonetheless relevant to our inquiry, Matthews, 779 F.3d at 173. And among the duties listed in the
C.
We consider next whether Specht‘s allegations satisfy the second element of a First Amendment retaliation claim—that he suffered an adverse employment action. Smith, 776 F.3d at 118. For purposes of the First Amendment, an adverse employment action is one that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional
Specht alleges that, among other things, he was removed from his role in investigating the fire, placed on modified duty, and forced to turn in his gun, badge and identification card. In other words, he alleges (plausibly) that he was reassigned. We have little difficulty concluding that such a reassignment constitutes an adverse employment action that would deter a reasonable employee from exercising his constitutional rights. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 71 (2006); Bernheim v. Litt, 79 F.3d 318, 326 (2d Cir. 1996).
D.
Finally, Specht must plausibly allege a causal connection between the adverse employment decision and the protected First Amendment activity. Smith, 776 F.3d at 118. To permit an inference of causation, a plaintiff must show
We conclude that Specht has done so. A plaintiff may prove causation by, among other things, showing that the adverse employment decision and the protected activity were close in time. Cioffi v. Averill Park Central School Dist. Board of Ed., 444 F.3d 158, 168 (2d Cir. 2006). We have previously found the passage of up to six months between an adverse action and protected activity sufficient to permit an inference of causation. See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). Here, Specht has alleged that he was placed on modified duty five months after his refusal to file the investigative report and two months after he spoke to the New York County District Attorney‘s Office. We hold that the time period between these events and Specht‘s protected conduct is sufficient to permit an inference of causation.1
II.
We turn next to Specht‘s retaliation claim under
On appeal, Specht does not dispute that the statute requires exhaustion under certain circumstances or that he failed to exhaust his remedies. Instead, he contends that he was not required to exhaust any remedies because the CBA does not govern the subject matter of his whistleblower claim. He also argues that the CBA did not contain a final and binding arbitration provision as
We find these claims unpersuasive. First, Specht‘s contention that the CBA does not govern his dispute is belied by his own amended complaint, which states that his placement on modified duty was in violation of established employment procedures at the FDNY. We agree with Appellees that this allegation fits comfortably within the category of disputes concerning existing policy or regulations of the [FDNY].
Second, Specht‘s argument that the CBA does not provide for final and binding arbitration is similarly unpersuasive. The CBA covers Specht‘s complaints about his treatment by the FDNY by broadly authorizing arbitration of grievances concerning claimed violations, misinterpretations, or inequitable applications of FDNY policies or regulations. However, Specht contends that the CBA should be understood to contain no final and binding arbitration clause because only the union and not he can initiate arbitration. That argument is meritless. Collective bargaining agreements, such as the one here, are between employers and unions. Unions are by law required to fairly represent their members by, among other ways, filing grievances and, if necessary, arbitrating
III.
Finally, we turn to Specht‘s claim that the Appellees’ conduct constituted intentional infliction of emotional distress (IIED) under New York tort law. To state an IIED claim, a plaintiff must plausibly allege the existence of (1) extreme and outrageous conduct, (2) an intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress. See Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 (1993). To meet this standard, the conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
As the district court correctly reasoned, Specht‘s allegations cannot even approach[] this standard. For one thing, although Specht frames the alleged behavior as an outrageous violation of the public‘s trust, he cites no authority for the proposition that what happened to him was utterly intolerable in a civilized community. Murphy, 58 N.Y.2d at 303 (emphasis added). What happened to him simply did not rise to that level. Finally, we observe that Specht‘s amended complaint levels only conclusory allegations that he suffered emotional distress, allegations that are insufficient to state a claim.
CONCLUSION
For the foregoing reasons, the district court‘s dismissal of Specht‘s First Amendment retaliation claim is AFFIRMED in part and REVERSED in part. The district court‘s dismissals of Specht‘s