In Reynolds v. The City of New York, 22-CV-1910 (VEC), 2022 WL 17792394 (S.D.N.Y. Dec. 19, 2022), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s First Amendment retaliation claim.
From the decision:
The sole cause of action in Plaintiff’s Amended Complaint alleges that the City violated 42 U.S.C. § 1983 by retaliating against him for exercising his First Amendment right to speak out about unsafe work conditions.4 Am. Compl. ¶ 24. Plaintiff alleges that the City retaliated against him for being “an outspoken critic” of illegal conduct, id. ¶ 8, specifically drug dealing, fraud, and theft of personal protective equipment (PPE), id. ¶ 10.
The Amended Complaint does not state a plausible claim. It fails to allege sufficient facts to support the inference that the things about which Plaintiff complained threatened the public welfare, and, thus, that Mr. Reynolds’ complaints addressed a matter of public concern. See Weintraub, 593 F.3d at 201 (teacher’s speech did not address a matter of public concern and were not protected by the First Amendment). In Shara v. Maine-Endwell Central School District, 46 F.4th 77 (2d Cir. 2022), the Second Circuit held that an employee’s complaints regarding a school district’s bus maintenance reporting practices did not implicate a matter of public concern absent allegations that the district ignored safety reports or allowed unsafe buses to operate. Id. at 87. Like the complaint in Shara, Mr. Reynolds’ barebones Amended Complaint fails to allege facts from which the Court can plausibly infer that the misconduct about which he complained created a public health or safety concern.
Mr. Reynolds claims, in a conclusory way, that the alleged wrongdoing “imped[ed] [his co-workers’] ability to adequately perform their job.” Am. Compl. ¶ 9. He does not, however, allege that any co-worker failed to perform specific duties that had an impact on public health or safety. Rather, he alleges only, in a conclusory way, that his coworkers endangered the public’s health and safety. Id. ¶ 10. Despite drawing all reasonable inferences in favor of the Plaintiff, the Court cannot determine from Plaintiff’s Complaint how, for example, the theft of personal protective equipment has an impact on public health and safety by interfering with the effective treatment of sewage.5
The allegations in the Amended Complaint further indicate that Mr. Reynolds reported wrongdoing at the DEP as an employee, not as a citizen, because these matters were “part-and-parcel of [his] concerns about his ability to properly execute his duties.” Matthews, 779 F.3d at 173 (quoting Weintraub, 593 F.3d at 203). While Plaintiff denies that his reporting fell within the scope of his employment, he simultaneously states that his complaints were focused on “issues that directly impacted him.”
The court concluded that dismissal was warranted because plaintiff failed “to allege adequately that he spoke as a citizen on a matter of public concern as opposed to speaking as an employee about improper workplace conduct.”