Fahs Construction Group, Inc. (Fahs) appeals the dismissal of its First Amendment and Equal Protection claims against Michael Gray, a construction supervisor for the New York State Department of Transportation (DOT). The District Court, presided over by Judge Glenn T. Suddaby, ruled that Fahs's claims were without merit. The Second Circuit affirmed this decision, stating that Fahs's speech did not pertain to a matter of public concern, which is a prerequisite for First Amendment protection. Additionally, the court found that the alleged differential treatment related to the Equal Protection claim occurred outside the applicable limitations period. The decision was made following a de novo review of the motion to dismiss, where all factual claims in the complaint were accepted as true, and reasonable inferences were drawn in favor of the plaintiff. The legal framework for evaluating public employee speech claims was cited, particularly referencing the Supreme Court's decisions in Pickering and Garcetti, which outline the necessity of demonstrating that the speech in question addresses public concerns and evaluating the government's justification for any adverse actions taken against the employee.
The Supreme Court's decision in Pickering establishes that a public employee's First Amendment rights depend on balancing their interests in commenting on public matters against the state's interest in maintaining efficient public services. While Fahs is classified as an independent contractor, the Supreme Court in Board of County Commissioners v. Umbehr extended First Amendment protections to independent contractors, using a modified Pickering balancing test. However, Fahs's speech did not address a matter of public concern, as it was predominantly personal, focused on seeking additional compensation and project extensions from the DOT. Although elements of Fahs's speech might touch on general importance, the primary concern remained personal—its compensation. The context of Fahs's speech was also nonpublic, utilizing an internal dispute resolution mechanism without any public statements intended. Consequently, the District Court's dismissal of Fahs's First Amendment claim is affirmed.
Fahs also asserted a claim under the First Amendment's Petition Clause, arguing this claim is not bound by the public concern requirement. However, this argument was not raised in the District Court, leading to its dismissal at this level.
Regarding the Equal Protection Claim, Fahs alleged unequal treatment compared to a similarly situated contractor, Lancaster Development, Inc. The Equal Protection Clause typically addresses governmental classifications that differentiate between groups. In Village of Willowbrook v. Olech, the Supreme Court recognized a "class of one" theory, allowing claims from individuals not part of a group if they can demonstrate that differential treatment was unjustified. The plaintiff must show that no rational basis exists for the difference in treatment compared to the comparator and that the circumstances are sufficiently similar to exclude the possibility of error in the treatment.
The Court in Engquist determined that the "class-of-one" theory of equal protection is not applicable in public employment situations. However, Fahs's Equal Protection claim is barred by the statute of limitations, which is three years for claims under 42 U.S.C. § 1983 in New York. This period begins when the plaintiff knew or should have known of the discriminatory treatment. In cases involving a continuous practice of discrimination, the limitations period may be extended until the last discriminatory act occurs. For this extension to apply, the plaintiff must demonstrate the existence of an ongoing discriminatory policy and non-time-barred acts in support of that policy.
Fahs filed suit in February 2010, alleging discriminatory treatment primarily between 2003 and 2005, which is beyond the three-year limit. The only alleged acts within the limitations period are refusals by Gray to complete the financial reconciliation of the Fahs contract, with no corresponding allegations regarding Lancaster's treatment during the same period. As Fahs has not cited any non-time-barred discriminatory acts, the start of the limitations period cannot be delayed. Since all alleged differential treatment occurred outside the limitations window, the Equal Protection claim is deemed time-barred.
Fahs argued for judicial notice of a document indicating Lancaster's contract close-out period extended into July 2008, but the Court affirmed the District Court's denial of this request, noting that the document does not substantiate claims of less favorable treatment for Fahs compared to Lancaster. Furthermore, Fahs's request for additional discovery to support its Equal Protection claim was rejected, as it did not demonstrate how further information would strengthen its case. The judgment of the District Court was thus affirmed.
