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Gorman v. Rensselaer County

United States Court of Appeals, Second Circuit

December 6, 2018

John Gorman, Plaintiff-Appellant,
v.
Rensselaer County, Anthony Patricelli, Undersheriff Patrick Russo, Sheriff Jack Mahar, County Human Resources Manager Tom Hendry, County Executive Kathleen Jimino, Defendants-Appellees, William McIntyre, Public Safety Psychology PLLC, Defendants.

          Argued: January 10, 2018

         John Gorman appeals from a judgment of the United States District Court for the Northern District of New York (Kahn, J.) dismissing his complaint on summary judgment. Gorman brought this action under 42 U.S.C. § 1983, alleging (inter alia) that the defendants (1) retaliated against him in violation of the First Amendment after he filed a report that a fellow sergeant in the Sheriff's Department had misused a digital repository of criminal justice information, and (2) infringed his right to intimate familial association with his sister. As to the first claim, we conclude that a reasonable officer would not have known that it was clearly established law that Gorman's speech constituted a matter of public concern and the defendants are therefore entitled to qualified immunity. As to the second, we conclude that Gorman failed to allege any facts that would allow a reasonable jury to infer that the defendants intentionally interfered with Gorman's relationship with his sister. Affirmed.

          Stephen Bergstein, Bergstein & Ullrich, LLP, New Paltz, New York, for Plaintiff- Appellant.

          Kevin G. Martin, Martin & Rayhill, PC, Utica, New York, for Defendants-Appellees.

          Before: Jacobs, Hall, and Droney, Circuit Judges.

          Dennis Jacobs, Circuit Judge

         John Gorman, a former corrections officer, appeals from a judgment of the United States District Court for the Northern District of New York (Kahn, J.) dismissing his 42 U.S.C. § 1983 complaint on summary judgment. Gorman's sister had ended a long relationship with Gorman's fellow officer, Anthony Patricelli, and took up with another man. Bad blood between Gorman and Patricelli ensued, in part because Gorman refused to encourage a reconciliation. Patricelli used a police database to check out the man who was living with Gorman's sister (and Patricelli's son) and saw that the man was a felon. When Gorman reported Patricelli's misuse of the police database, Patricelli was disciplined. Gorman alleges that he was subjected to harassment by Patricelli, the County, and other officials, as retaliation for reporting Patricelli, in violation of Gorman's First Amendment right to speak on a matter of public concern; and that the defendants infringed on Gorman's right to intimate association with his sister by setting one against the other in Patricelli's quest to win back the sister.

         As to the first claim, the district court held that a reasonable officer would not have known that it was clearly established law that Gorman's speech constituted a matter of public concern, and that the defendants are therefore entitled to qualified immunity. As to the second, the district court held that Gorman failed to allege any facts that would allow a reasonable jury to infer that Patricelli intentionally interfered with Gorman's relationship with his sister. For reasons set out below, we agree. The judgment of the district court is affirmed.

         BACKGROUND

         Gorman is a former corrections officer at the Rensselaer County Sheriff's Department. Anthony Patricelli, a sergeant in the same office, had been in a relationship with Gorman's sister for 27 years until October 8, 2012, when Gorman's brother told their sister that Patricelli had been unfaithful. Later that day, Patricelli called Gorman at work and threatened, "thank your wife, thank your brother, thank you, you'll pay." Gorman alleges that Patricelli followed him around at work with a facility camera system, made threatening gestures when he (repeatedly) passed by Gorman's assignment area, and called Gorman at home proposing to break his jaw. Gorman claims that this continued until June 2013.

         Gorman testified that his relationship with his sister deteriorated because Patricelli "would go after her and tell her you gotta control your brother and things like that. When he couldn't get to me, he'd go to her. When he couldn't get to her, he'd go to me and it was back and forth like that."

         Gorman filed two criminal complaints against Patricelli, in February and March 2013, and obtained an order of protection against Patricelli from the Schagticoke Town Court. Gorman also filed several workplace harassment complaints.

         The "eJustice program" is a digital repository for criminal justice information throughout New York, including whether an individual is wanted outside the state. In March 2013, Gorman and his brother informed the auditor of the eJustice program that Patricelli had used the system to run a background check of the man who succeeded Patricelli in a relationship with Gorman's sister, and who had a criminal record. The eJustice auditor advised Gorman and his brother to inform the Division of Criminal Justice Services ("DCJS"), and the DCJS audit led to a referral to the District Attorney. Patricelli was suspended from work and charged with misuse of the eJustice program. Patricelli pleaded guilty to "misuse of a computer," a misdemeanor.

         Gorman alleges that he suffered retaliation for reporting Patricelli, including: being ordered to "take deliveries of milk trucks or bread deliveries" during his lunch break, being asked to strip-search inmates, and being somehow hit by a heavy metal door. J. App'x 383-87.

         On July 14, 2013, Gorman called in sick, citing exhaustion, depression, and tightness in his chest; the next day, he was admitted to the hospital, where he stayed for three or four days. Gorman never returned to work, and he was advised by letter that his employment would be terminated effective July 15, 2014 due to his one-year absence from work. After a hearing to appeal the termination, Gorman was informed on October 1, 2014 that he was terminated effective that date; he unsuccessfully appealed to the County Civil Service Commission. Gorman v. Rensselaer Cty., 1:14-CV-0434 (LEK/DJS), 2017 WL 1133392, at *4 (N.D.N.Y. Mar. 24, 2017).

         Gorman's May 2015 charge of discrimination with the Equal Opportunity Employment Commission ("EEOC") was dismissed as untimely. Id. at *5. On April 16, 2014, Gorman filed this case in the Northern District of New York. Id. The district court granted the defendants' motion for summary judgment in its entirety (without prejudice to filing state-law discrimination claims in state court), prompting this appeal.

         DISCUSSION

         We review de novo a grant of summary judgment, Wang v. Hearst Corp., 877 F.3d 69, 72 (2d Cir. 2017), "view[ing] the evidence in the light most favorable to the party opposing summary judgment, . . . draw[ing] all reasonable inferences in favor of that party, and . . . eschew[ing] credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Proc. 56.

         I

         Under the First Amendment, a public employee who speaks as a citizen on a matter of public concern is protected from the employer's retaliation. Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013). Whether an employee's speech constitutes a matter of public concern is a question of law. Id. "Only if the court concludes that the employee did speak in this manner does it move on to the so-called Pickering balancing, at which stage 'a court . . . balances the interests of the employer in providing effective and efficient public services ...


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