Ruotolo v. City of New York

Decision Date06 February 2008
Docket NumberDocket No. 06-3886-cv.
Citation514 F.3d 184
PartiesAngelo RUOTOLO, Plaintiff-Appellant, v. CITY OF NEW YORK; Raymond Kelly, Commissioner of Police, City of New York; Patrick J. Timlin, Former Chief of Police, City of New York, Bronx; Raymond Rooney, Deputy Inspector, New York City Police Department, formerly Commanding Officer 50th Precinct, Bronx; William Riley, Lieutenant, New York City Police Department, formerly Integrity Control Officer, 50th Precinct, Bronx, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Andrew M. Wong, New York, NY, for Plaintiff-Appellant.

Tahirih M. Sadrieh, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel for the City of New York), New York, NY, for Defendants-Appellees.

Before: JACOBS, Chief Judge, LEVAL and SOTOMAYOR, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Retired police sergeant Angelo Ruotolo ("Ruotolo") sues the City of New York (the "City") and various officials and members of the New York City Police Department (collectively, the "NYPD"), alleging retaliation in violation of the First Amendment for his speech regarding health concerns at his precinct. He appeals from a judgment of the United States District Court for the Southern District of New York (Stein, J.), granting defendants' motion to dismiss the "Second Amended and Supplemental Complaint" (the "Complaint") for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Ruotolo's speech consisted of a report concerning health conditions at his precinct, which he was directed to-prepare in his role as precinct Safety Officer, and a lawsuit he filed in the wake of retaliatory personnel action taken against him after the report was submitted. The district court dismissed, citing Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), on the ground that both the report and the lawsuit were unprotected because Ruotolo was speaking as a public employee in the course of his employment duties. No appeal is taken from the dismissal of the claim premised on Ruotolo's report. As to Ruotolo's lawsuit, we affirm on the ground that it did not address a matter of public concern. And we affirm the district court's exercise of its discretion to deny leave to amend the complaint based on plaintiffs delay and the undue burden and prejudice to defendants.

BACKGROUND

Ruotolo was an NYPD Sergeant with 20 years service when he retired in 2004. In October 1999, Ruotolo was serving as the Training and Safety Officer for the 50th Precinct in the Bronx. When a local newspaper reported possible contamination and health risks at the precinct from underground gasoline storage tanks, Ruotolo was assigned—in his capacity as Safety Officer—to survey employee illnesses and deaths that might be related to this potential environmental hazard. His two-page report, dated October 28, 1999 (the "October 1999 Report"), and titled "Survey Pursuant to Request," identified a seemingly large number of cancers, miscarriages, birth defects and other health problems afflicting individuals working at the precinct. Ruotolo recommended a thorough environmental evaluation, which was done.

The environmental experts reported that leakage from the fuel storage tanks into the soil and air had raised contaminant levels above OSHA and EPA safety standards. At great expense and over many months, the City undertook to abate the hazard. Representatives of the Patrolmen's Benevolent Association ("PBA") came to the precinct in April 2000 to sign up potential plaintiffs for a personal injury lawsuit. One of the PBA lawyers asked to speak with Ruotolo because he was the author of the October 1999 Report. As Ruotolo testified in his March 2005 deposition in this lawsuit, he answered the PBA's questions with the knowledge of his commanding officer, spoke to no one else about the proposed lawsuit, did not himself enlist as a plaintiff, and never learned whether an action was filed. This encounter was not pled in any version of Ruotolo's complaint prior to dismissal of the action, but it is relevant to our analysis.

Ruotolo alleges that he experienced on-the-job retaliation starting soon after submitting the October 1999 Report to his commanding officer, and continuing until he retired. The retaliation included: frequent reassignments to undesirable shifts and to duties he considered beneath his rank and tenure, denial of use of leave time, transfer to a less desirable precinct, and discipline for trivial or fabricated reasons. After Ruotolo alleged those acts of retaliation (in the original complaint in this lawsuit, filed in July 2003), Ruotolo alleged (in amended complaints) that the retaliation took additional forms, including verbal harassment by superior officers, denial of overtime assignments, the first negative performance review of his career, and excessive discipline for a minor infraction. As a result of that discipline, Ruotolo was put on "modified duty," and was stripped of his badge, shield, identification card and weapons. He was still on modified duty when he retired on July 26, 2004, which meant he lost the privilege of carrying a firearm after retirement (thus reducing his prospect for future income in the security field). Based on these experiences, Ruotolo attributed to the City a "municipal custom and practice of tolerance of the violation of [whistle-blowers'] rights."

As compensatory damages, Ruotolo alleges lost income and reduced pension benefits. Ruotolo also seeks punitive damages, and an injunction to (i) expunge from his employment records the retaliatory disciplinary charges and performance reviews, and (ii) restore impaired retirement benefits and privileges.

The original complaint identified the October 1999 Report as the single episode of speech underlying his First Amendment claim. Over the next three years of active litigation, Ruotolo was twice given leave to amend his complaint, notably to add the filing of his lawsuit as the second—and only other—instance of speech for which Ruotolo alleged retaliation. By May 2006, the parties had concluded extensive discovery, narrowed the claims through multiple dispositive motions (various state law claims were dismissed on an earlier Rule 12(b)(6) motion), litigated numerous discovery and trial-related motions, and submitted their final joint pretrial order.

Trial on Ruotolo's surviving claims was two weeks away when the Supreme Court ruled in Garcetti v. Ceballos that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." 547 U.S. 410, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006). Upon the defendants' renewed motion to dismiss, the district court ruled that the First Amendment claim succumbed to Garcetti because Ruotolo admittedly wrote the October 1999 Report in his capacity as Safety Officer, and because the lawsuit was premised solely on nonactionable speech. As to the lawsuit, the court explained:

After Garcetti, for a lawsuit adequately to charge a First Amendment retaliation claim, the lawsuit must be predicated on speech made by a public employee as a citizen, and not pursuant to his or her official duties. To hold otherwise—that filing a lawsuit alleging retaliation for non-protected speech would give rise to a First Amendment complaint—would defy logic, allowing a plaintiff to bootstrap a non-actionable objection to legitimate employer discipline into a valid First Amendment claim.

(Emphasis in original).

In opposing the Rule 12(b)(6) motion, Ruotolo unsuccessfully attempted to rehabilitate his Complaint by reference to his deposition testimony about the April 2000 conversation with a PBA representative. For the first time, Ruotolo argued that he was not then speaking in his official capacity as Safety Officer (and author of the October 1999 Report), but rather was speaking as a private citizen on a health matter of public concern. As Ruotolo had as yet never alleged the April 2000 PBA conversation, the district court decided that the exchange with the PBA was outside the pleadings and not properly considered on a motion to dismiss.

Final judgment was entered on July 21, 2006. Ruotolo moved to vacate the judgment and for leave to file a Third Amended and Supplemental Complaint. The district court denied vacatur because Ruotolo "failed to demonstrate a need to prevent manifest injustice or correct a clear error that would affect the outcome of the case." The district court also denied leave to amend to add the PBA conversation because of undue delay, and the undue burden and prejudice that would result to defendants. Ruotolo timely appealed these rulings and the final judgment.

DISCUSSION

We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." ATSI Commc'n, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).

A

On appeal, Ruotolo concedes that Garcetti mandates dismissal of the First Amendment claim premised on the October 1999 Report. Ruotolo argues, however, that the district court erred in reading Garcetti to require dismissal of the claim premised on his filing a federal lawsuit. We hold that Ruotolo's claim based on his lawsuit must fail because his lawsuit did not address a matter of public concern.

Whether public employee speech is protected from retaliation under the First Amendment entails two inquiries: (1) "whether the employee spoke as a citizen on a matter of public concern" and, if so, (2) "whether the relevant...

To continue reading

Request your trial
1924 cases
  • Faryniarz v. Jose E. Ramirez, JR Chem, LLC
    • United States
    • U.S. District Court — District of Connecticut
    • 9 Noviembre 2015
    ...... as documents upon which the complaint relies and which are integral to the complaint."); New York" Life Ins . Co . v . United States , 724 F.3d 256, 258 (2d Cir. 2013) (citing same).       \xC2"... See D . Penguin Bros . v . City Nat'l Bank , Nos. 13 Civ. 41 (TPG), 13 Civ. 706 (TPG), 2014 WL 982859, at *4 (S.D.N.Y. Mar. 11, ... of bad faith or prejudice, is not a sufficient reason for denying a motion to amend, Ruotolo v . City of New York , 514 F.3d 184, 191 (2d Cir. 2008). And undue prejudice generally arises ......
  • Macintyre v. Moore
    • United States
    • U.S. District Court — Western District of New York
    • 28 Septiembre 2018
    ......6:15-CV-06660 EAW United States District Court, W.D. New York. Signed September 28, 2018 335 F.Supp.3d 406 Stephen R. MacIntyre, Henrietta, NY, pro se. Scott E. ... in the complaint and drawing all reasonable inferences in the plaintiff's favor." Ruotolo v. City of N.Y. , 514 F.3d 184, 188 (2d Cir. 2008) (internal quotations and citation omitted). To ......
  • Doubleline Capital LP v. Construtora Norberto Odebrecht, S.A.
    • United States
    • U.S. District Court — Southern District of New York
    • 22 Septiembre 2019
    ......1:17-cv-4576-GHW United States District Court, S.D. New York. Signed September 22, 2019 Filed September 23, 2019 413 F.Supp.3d 199 Karl P. Barth, Steve W. ... one, a corporation need not affirmatively disclose "uncharged, unadjudicated wrongdoing." City of Pontiac Policemen's & Firemen's Ret. Sys. v. UBS AG , 752 F.3d 173, 184 (2d Cir. 2014) ...See Ruotolo v. City of New York , 514 F.3d 184, 191 (2d Cir. 2008) (noting that leave to amend is "liberally ......
  • Bd. of Managers of 195 Hudson St. v. Brown Assoc.
    • United States
    • U.S. District Court — Southern District of New York
    • 25 Agosto 2009
    ....... No. 07 Civ. 4058 (PKL). . United States District Court, S.D. New York. . August 25, 2009. . Page 464 . COPYRIGHT MATERIAL OMITTED . Page 465 .         Judd ... JMB formed K & J in 1998 for the purpose of performing non-union construction work in New York City. ( Id. ¶ 8.) .         I. State Court Proceedings .         On May 23, 2000, ... Id. at 1949-50; see Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (Jacobs, J.); ATSI Commc'ns, Inc. v. Shaar ......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT