Argued: January 10, 2018
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.
G. Martin, Martin & Rayhill, PC, Utica, New York, for
Before: Jacobs, Hall, and Droney, Circuit Judges.
Jacobs, Circuit Judge
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.
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.
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.
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."
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.
"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
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.
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).
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
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.
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 ...