In Triana v. Sodexo, Inc., 2018 WL 6413151, at *7 (S.D.N.Y., 2018), the court, inter alia, dismissed plaintiff’s First Amendment retaliation claim.
The court provides the following summary of the relevant law:
Where a plaintiff claims that he or she was retaliated against in violation of the First Amendment, he or she must demonstrate that “(1) his [or her] speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action against him [or her]; and (3) there was a causal connection between this adverse action and the protected speech.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011). Akin to § 1983 claims for employment discrimination and hostile work environment, the plaintiff is required to show that a municipality’s challenged acts were implemented pursuant “to a municipal custom or policy.” Montero v. City of Yonkers, 890 F.3d 386, 403 (2d Cir. 2018) (quoting Monell, 436 U.S. at 658). And, as explained in the previous section, when a non-policymaker is accused of First Amendment retaliation, this policymaker must have “ordered or ratified such a subordinate’s conduct or was aware of a subordinate’s unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions.” Id.
Applying the law, the court held that plaintiff’s claim failed:
As with Triana’s employment discrimination and hostile work environment claims brought under § 1983, Plaintiff points to no evidence in the record that policymakers at H+H were aware of the purportedly retaliatory measures allegedly taken against him by Shivers and Wilcox. Indeed, Plaintiff testified that he never “complain[ed] to anyone at HHC” about the delayed tube feedings. See Triana Deposition at 736; see also Pl.’s Responses and Objections to Def.’s 56.1 Statement ¶ 24 (“Plaintiff never made a complaint to anyone employed by H+H that he was being treated differently because he made a complaint about tube feedings.”). Accordingly, Plaintiff’s First Amendment retaliation claim is dismissed.