Connolly v. City of Rutland

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. Plaintiff-Appellant, Mary Shawn Connolly (“Connolly”) appeals from the district court’s August 24, 2011 order, granting summary judgment to Defendants-Appel-lees, the City of Rutland and Mayor Christopher Louras, by denying Connolly’s Due Process and First Amendment claims brought under 42 U.S.C. § 1983 and thereby dismissing state claims for lack of supplemental jurisdiction. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. We review the grant of summary judgment de novo. Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We affirm the district court’s denial of Connolly’s Due Process claim for substantially the reasons stated by the district court in its decision. When a “public employee is terminated, procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided after-wards.” Locurto v. Safir, 264 F.3d 154, 171 (2d Cir.2001). We recognize that some of our sister circuits have adopted an exception to the normal due process hearing requirements where a defendant’s dismissal is based on a reorganization plan or reduction-in-force and is unrelated to personal performance. See, e.g., Rodriguez-Sanchez v. Municipality of Santa Isabel, 658 F.3d 125, 130 (1st Cir.2011); Misek v. City of Chicago, 783 F.2d 98, 100 (7th *667 Cir.1986). We need not decide here whether we also adopt such an exception, Connolly received adequate process. She was afforded a pre-termination hearing at which she was given the chance to put forth arguments and evidence as to why she should not be terminated, and post-termination had the opportunity to avail herself of the review process pursuant to Vermont R. Civ. P. 75. We therefore rule that the district court was correct in granting summary judgment in favor of Defendants on Connolly’s Due Process claim. We affirm the district court’s dismissal of Connolly’s First Amendment retaliation claim finding that Connolly’s speech did not amount to a matter of “public concern.” Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (finding a public employee’s speech is protected from employer retaliation under the First Amendment only where the employee spoke as a citizen on a matter of public concern). The public concern test applies where the allegedly protected conduct is the filing of a lawsuit. See Borough of Duryea v. Guarnieri, — U.S. -, 131 S.Ct. 2488, 2495-96, 180 L.Ed.2d 408 (2011); see also Ruotolo v. City of New York, 514 F.3d 184, 188-90 (2d Cir.2008) (affirming dismissal where “lawsuit did not constitute speech on a matter of public concern”). Therefore the inquiry into whether a lawsuit addresses a matter of “public concern” or private matters depends on “the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. So, where the lawsuit is, as here, related entirely to an issue of private matters, such as Connolly’s personal grievances as to her employment, it is inappropriate to find an issue of public concern. Ruotolo, 514 F.3d at 189 (filing lawsuit to redress personal grievances is not a matter of public concern). Therefore, we affirm the district court’s finding that First Amendment protection was inappropriate where the heart of the employee’s lawsuit was to address personal matters against her employer. Connolly v. City of Rutland, 2011 WL 3739064, at * 17 (D.Vt. Aug.24, 2011). We conclude that the district court properly granted the Defendants’ motion for summary judgment. Accordingly, the judgment of the district court hereby is AFFIRMED.