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GONZALEZ v. City of New York, Defendant. (2021)

United States Court of Appeals, Second Circuit.2021-02-02No. 20-551

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Opinion

SUMMARY ORDER

Appellant Alfred Gonzalez, proceeding pro se, sued his former employer, the City of New York (the “City”), and his union, District Council 37, AFSCME, AFL-CIO, SSEU Local 371 (the “Union”), following his dismissal from a tenured, permanent position in a competitive-class civil service job. The district court granted both (1) the Citys motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and (2) the Unions motion for summary judgment under Federal Rule of Civil Procedure 56 on the basis that the district court lacked jurisdiction over Gonzalezs duty of fair representation claim and that Gonzalez could not sustain a conspiracy claim against the Union.

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Gonzalez timely appeals. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal, to which we refer only as necessary to explain our decision to affirm.

We review de novo both a district courts grant of a motion to dismiss a complaint pursuant to Rule 12(b)(6) and its grant of summary judgment under Rule 56. Garcia v. Hartford Police Dept, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true and with all reasonable inferences drawn in the plaintiffs favor, “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Chambers, 282 F.3d at 152. “Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

Gonzalez does not challenge the district courts conclusions that it lacked jurisdiction over his claim that the City could not, consistent with its due process obligations, reveal his employment records to potential future employers and over his duty of fair representation claim against the Union; that he failed to state a § 1983 due process claim against the Union because it was not a state actor; and that he could not state a § 1983 conspiracy claim against the Union if he failed to state a § 1983 due process claim against the City. He also does not challenge the district courts decision declining to exercise supplemental jurisdiction over any state-law claims. He has thus waived any appeal as to all of these issues. See Norton v. Sams Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”); LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (pro se litigant “abandon[s]” issue by failing to address it in his appellate brief).

Turning to Gonzalezs remaining due process claims on appeal: Public employees who can be fired only for cause, like Gonzalez, have a property interest in their continued employment, and they are entitled to due process when they are deprived of that interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). “When such 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 afterwards.” Locurto v. Safir, 264 F.3d 154, 171 (2d Cir. 2001).

The requirements for any such pre-termination hearing are “minimal.” Id. at 173; see also id. at 174 (pre-termination hearing requires only “notice of the charges, an explanation of the nature of the employers evidence, and an opportunity for the employee to respond,” and does not need to be conducted by a neutral adjudicator). With respect to the requisite post-termination hearing, this Court has held that the availability in New York of an Article 78 proceeding satisfies the requirements of due process. See id. at 175 (holding, in the context of a § 1983 suit challenging the dismissal of a tenured public employee, that “[a]n Article 78 proceeding ․ constitutes a wholly adequate post-deprivation hearing for due process purposes”); see also Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996). Gonzalez acknowledged in his complaint that he allowed the four-month limitations period for an Article 78 proceeding to expire without bringing an Article 78 challenge. See id. (a plaintiff “cannot resuscitate [his] due process claim simply because an Article 78 proceeding is now barred by Article 78s four-month statute of limitations”).

Gonzalezs argument on appeal is that he was not able or required to file an Article 78 petition to challenge his termination because he was never “validly” terminated. There was no valid termination, he contends, because the person who signed his termination letter was not authorized to do so. The district court did not err in declining to address this claim, however, since the claim turned on an allegation not made in the amended complaint and was raised for the first time in opposition to the Unions motion for summary judgment. See Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006) (declining to reach merits of issue raised for the first time in opposition to summary judgment because “a district court does not abuse its discretion when it fails to grant leave to amend a complaint without being asked to do so”). In any event, this is precisely the type of challenge that Gonzalez could have raised in an Article 78 proceeding. See, e.g., Matter of Gagedeen v. Ponte, 170 A.D.3d 1013, 1014 (2d Dept 2019) (affirming dismissal of Article 78 petition after considering merits of petitioners claim that his dismissal was improper because he was dismissed by a Deputy Commissioner of the Department of Corrections, rather than the Commissioner).

We have considered all of Gonzalezs remaining arguments and find in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.

FOOTNOTES

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.   We construe Gonzalezs notice of appeal as challenging both of these orders. See Elliott v. City of Hartford, 823 F.3d 170, 173 (2d Cir. 2016) (“[I]n the absence of prejudice to an appellee, we read a pro se appellants appeal from an order closing the case as constituting an appeal from all prior orders.”). Although the City did not file a brief on appeal, we see no prejudice to it in rendering our decision because we affirm the District Courts decision in the Citys favor in all respects.