Opinion
No. 00 Civ. 3775 (LAP)
September 30, 2002
MEMORANDUM AND ORDER
Plaintiff, Brian Flynn ("Flynn"), a teacher at The Family Academy Middle School ("Family Academy"), sues The New York City Board of Education ("Board of Education"), David Liben ("Mr. Liben") and Meredith Liben ("Mrs. Liben"), founders of The Family Academy Middle School, pursuant to 42 U.S.C. § 1983 alleging the defendants deprived him rights guaranteed to him by the First and Fourteenth Amendments, and for other violations of the New York State Labor Law. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff cross-moves for summary judgment and to amend his complaint. For the reasons set forth below, defendants' motion for summary judgment is granted in part and denied in part, plaintiff's cross-motion is denied, and the motion to amend is denied.
The following submissions have been considered in resolving this motion: Complaint ("Compl."); Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Defts' Mem."); Defendants' Rule 56.1 Statement ("Defts' 56.1 Stmt."); Michelle Buescher Declaration ("Buescher Decl."); Plaintiff's Cross-Motion for Summary Judgment and Motion to Amend the Complaint ("Pltff's Mem."); Plaintiff's Rule 56.1 Statement ("Pltff's 56.1 Stmt."); Affidavit of Brian Flynn ("Flynn Aff."); Michael Shen Affirmation ("Shen Aff."); Defendants' Reply Memorandum in Further Support of Their Motion for Summary Judgment and in Opposition to Plaintiff's Cross-Motion to Amend the Complaint. ("Defts' Reply").
Background
On or about September 2, 1997, plaintiff was hired as a preparatory provisional teacher to teach sixth grade special education students at the Family Academy. (Flynn Aff., ¶ 3; Pltff's 56.1 Stmt., ¶ 1; Defts' 56.1 Stmt., ¶¶ 5-7). In 1997, the Family Academy was located in two separate facilities, one housing the Family Academy Middle School and the other housing the Family Academy Elenientary School. (Defts' 56.1 Stmt., ¶ 2). Mr. Liben is director of both schools, and Mrs. Liben, his wife, is site director of the Middle School. (Flynn Aff., ¶ 5; Pltff's 56.1 Stmt., ¶ 2; Defts' 56.1 Stmt., ¶ 3). Mrs. Liben also teaches Latin and takes care of administrative responsibilities in Mr. Liben's absence. (Defts' 56.1 Stmt., ¶ 4).
Prior to working at the Family Academy plaintiff taught elenientary school for three years in the United Kingdom, was a school psychologist for sixteen years and an administrator for six years. (Flynn Aff., ¶ 6). In 1997, he earned his Master's of Science in Special Education from the City University of New York and was licensed as a special education teacher. (Id. at ¶ 7).
Plaintiff asserts that because he was following the teaching requirements as outlined by the Federal Individuals with Disabilities Education Act, 20 U.S.C. § 1400, Board of Education regulations, (Pltff's 56.1 Stmt., ¶ 7), and "`advocated' for the tenets of special education", (Pltff's 56.1 Stmt., ¶ 10; Flynn Aff., ¶ 10), he "upset" Mr. and Mrs. Liben, (Pltff's 56.1 Stmt., ¶ 11; Flynn Aff., ¶ 11), who "sought to portray the Family Academy to the public and school community as an elite school." (Flynn Aff., ¶ 12). In retaliation for expressing his views, plaintiff alleges that the Libens took several actions against him, including: 1) terminating his employment, 2) refusing to pay him "teachers choice payments" used to reimburse teachers for personal money spent on students' equipment, (Flynn Aff., ¶¶ 61-64; Pltff's 56.1 Stmt., ¶ 36), and 3) refusing to pay for the private tutoring classes he conducted from October 20th to November 19th. (Pltff's 56.1 Stmt., ¶ 37). Plaintiff argues that the following incidents are evidence of the defendants alleged retaliatory conduct:
1. Mr. Liben "criticized him in front of his class" for the teaching methods he used, (Pltff's 56.1 Stmt., ¶ 15), and rejected his teaching belief that the special education students should be dispersed in the mainstream home room, math and English classes in accordance with the "`least restrictive environment' for special education students as mandated by federal law", (id. at ¶¶ 18-19). (See also Flynn Aff., ¶¶ 10-11, 13-14, 16, 18-21). Plaintiff also had discussed the issue of placing targeted students in the mainstream classes with parents as well. (Flynn Aff., ¶ 22).
2. On September 26, 1997, Mrs. Liben "angrily ordered [plaintiff] not to teach his students `individually', but to teach them `as class'", (Pltff's 56.1 Stmt., ¶ 23), and in "retaliation" carried out an "observation" of [plaintiff] teaching a class and inappropriately and ineptly criticized his teaching methods, (Id. at ¶ 24). Plaintiff's classes were also observed on October 10, during the weeks of October 13-17, 20-24 and on November 5, 1997. (Deft's 56.1 Stmt., ¶¶ 10-11). Plaintiff claims Mrs. Liben again "inappropriately" criticized his teaching methods. (See generally, Pltff's 56.1 Stmt., ¶¶ 31-32).
3. At a parents' night plaintiff introduced himself as a special education teacher, which pleased the parents of special education students, and concerned the parents of non-special education students that their children were being taught by a special education teacher. (Flynn Aff., ¶¶ 23-26; Pltff's 56.1. Stmt., ¶ 14). Later in October, in a letter to parents, plaintiff again introduced himself as a special education teacher. (Flynn Aff., ¶ 33). Plaintiff alleges that Mrs. Liben instructed him "not [to] describe" himself as a "special education teacher" to the students or the parents of the school because some parents had raised concerns to her at a recent parents' evening. (Id. at ¶¶ 22, 25-26).
4. When plaintiff voiced concern that a student had been permitted to cheat on a test, defendants allegedly implausibly countered that the test had been properly administered and the scores were accurate. (Id. at ¶ 47; Pltff's 56.1 Stmt., ¶ 38).
5. Plaintiff alleges that after insisting that a particular education student receive musical instruction, Mrs. Liben refused to permit the student to particpate in musical instruction. (Flynn Aff., ¶¶ 41-42; Pltff's 56.1 Stmt., ¶¶ 33-35).
6. Plaintiff alleges that the retaliatory conduct continued when he expressed concern that his students were being unfairly punished when the entire school was made to stand in silence for a half hour because another class made noise during a line-up. (See Flynn Aff., ¶¶ 50, 52; Pltff's 56.1 Stmt., ¶¶ 49, 52-53).
7. Plaintiff alleges his right to free speech was violated when he expressed a written opinion that a particular student "was settling in well to the Family Academy" and, upon learning of his recommendation, Mrs. Liben criticized plaintiff's report and "angrily demanded that he change it to recommend that the [student] be transferred to another program." (Flynn Aff., ¶¶ 43-46; Pltff's 56.1 Stmt., ¶¶ 41-43). After refusing to change his report, (Pltff's 56.1 Stmt., ¶ 44), plaintiff alleges that Mrs. Liben, on November 19, 1997, once again criticized plaintiff's teaching methods and stated she was going to "kick ass", (id. at ¶ 45), and "angrily urged [plaintiff] to resign if he would not `fit in with the school,'" (id. at ¶ 46).
8. On November 21, 1997, plaintiff alleges that the retaliation continued. Plaintiff asserts he was "gently but firmly, restraining a student, [S.B.], who had been motioning towards the face of another student with a pair of scissors", and that Mrs. Liben falsely accused him of physically abusing a student. (Pltff's 56.1 Stmt., at ¶ 57). Plaintiff alleges that "defendants refused to listen to [his] account" of the events and "`threatened' [him] that if he did not resign they would fire him and give him an unsatisfactory rating." (Id. at ¶ 61).
Plaintiff asserts that only after the child's parent insisted that the student receive the instruction did Mrs. Liben agree to his request. (Flynn Aff., ¶¶ 41-42; Pltff's 56.1 Stmt., ¶¶ 33-35).
However, in early October when the entire school was punished again for the same behavior plaintiff was permitted to take his students outside for recess. (Flynn Aff., ¶ 59; Pltff's 56.1 Stmt., ¶¶ 55-56).
Defendants' account of the events of November 21, 1997, differs from plaintiff's. Defendants allege that on that day a child informed them that an incident was taking place in plaintiff's classroom. (Deft's 56.1 Stmt., ¶ 13). Mrs. Liben immediately went to plaintiff's classroom where she witnessed plaintiff with his hands on a student named Tyrell. Based on her own observations and based on statements from the children present in the classroom at the time, the defendants concluded that plaintiff had committed an act of corporal punishment. (Id. at ¶¶ 15-17). Defendants discussed the incident with plaintiff while union a representative was present and recommended that he either resign or risk termination; plaintiff refused, at which time Mr. Liben suggested he think about it over the weekend. (Id. at ¶¶ 18-20, Ex. D, p. 64).
Despite plaintiff's contention that a student with the initials "S.B." was involved in the alleged incident, on November 23, 1997, Tyrell's mother obtained a statement from her son about what took place in plaintiff's classroom on November 21, 1997. (Defts' 56.1 Stmt., ¶ 22, Ex. O). On Monday, November 24, 1997, Tyrell was examined by a doctor who concluded that Tyrell had "some swelling with tenderness in the left lumbar area", (id. at ¶ 23, Ex. P), and as a result Tyrell missed two days of school, (id. at ¶ 24, Ex. Q). Although S.B. did advise another teacher, Mr. Judkins, that "he had run into the room and [plaintiff] had stopped him and put him out of the room," at his deposition he could not recall the incident or that he was ever injured at school. (Pltff's 56.1 Stmt., ¶¶ 76-77).
On November 24, 1997, plaintiff returned to school and met with Mr. and Mrs. Liben and David Judkins, teacher and union representative, at which time plaintiff was given his annual performance evaluation with a rating of "unsatisfactory" and was informed that he would be terminated. (Deft's 56.1 Stmt., ¶¶ 25, 27, Ex. D, p. 78, 84-85; id. at ¶ 29, Ex. U). Plaintiff alleges that he returned to school that day and attended a meeting at which he presented a report recommending that one of his special education students remain in his class, which Mrs. Liben objected to and that "[l]ater that day, Mr. Liben fired [plaintiff], saying he didn't fit in the school." (Pltff's 56.1 Stmt., ¶¶ 62-64; Flynn Aff., ¶ 114).
On November 26, 1997, plaintiff alleges he returned to the school to pick up his termination letter at which time Mrs. Liben again told him she would "kick ass" and that Mr. Liben was going to "write him up so that he would never work in New York City again." (Pltff's 56.1 Stmt., ¶ 65). Plaintiff alleges he received his dismissal letter on December 8, 1997, two weeks after he was fired. (Id. at ¶ 66). The formal corporal incident report was written December 19, 1997. (Deft's 56.1 Stmt., ¶ 47, Ex. L; Pltff's 56.1 Stmt., ¶ 111).
Pursuant to the collective bargaining agreement between the United Federation of Teachers and the New York City Board of Education, on December 8, 1997, plaintiff appealed his "unsatisfactory" rating pursuant to the agreement's three-step grievance procedure. (Deft's 56.1 Stmt., ¶¶ 30-33).
On or about December 11, 1997, a Step-II hearing was held with the Superintendent, the Personnel Director of Community School District 3, Mr. Liben, a union representative, a hearing officer and plaintiff. (Defts' 56.1 Stmt., ¶¶ 34-35). After reviewing the evidence presented by both sides, the hearing officer denied plaintiff's grievance, and plaintiff appealed. (Id. at ¶¶ 37-38). A Step-III hearing was held on January 20, 1998, at which time plaintiff argued that he was improperly terminated; that he had been paid up to December 16, 1997; that the student involved in the incident was not Tyrell but S.B. and that the incident took place at a different time and location. (Id. at ¶¶ 40-41). On January 25, 1998, the hearing officer denied plaintiff's grievance finding that plaintiff's termination letter was not inaccurate. (Id. at ¶ 42). Finally, on February 2, 1998, the Step-III hearing officer issued a grievance decision denying plaintiff's grievance and finding that he had failed to prove that he was not involved in an act of corporal punishment or that the student was misidentified. (Deft's 56.1. Stmt., ¶ 42).
In addition, on January 7, 1998, plaintiff was interviewed by the Board of Education at an "informal conference regarding the allegation that plaintiff had abused a student, (Pltff's 56.1 Stmt., ¶ 67, Ex. Q; Deft's 56.1 Stmt., ¶ 49), after which the Board of Education concluded that an act of corporal punishment did occur, rescinded plaintiff's New York City teaching license and placed him on the ineligible for employment" list of the Board of Education, (Pltff's 56.1 Stmt., ¶¶ 67-68; Deft's 56.1 Stmt., ¶ 50-51).
Again, in accordance with the collective bargaining agreement between the teachers union and the Board of Education, plaintiff decided to arbitrate his grievance seeking to eliminate the November 24, 1997, letter from his personnel file. (Deft's 56.1. Stmt., ¶ 43). The arbitrator ordered the Board to rewrite part of the body of the letter. (See id. at ¶ 45, Ex. II) Finally, on December 1, 1999, the Board of Education notified plaintiff and the Superintendent that plaintiff's appeal of his "unsatisfactory" rating was denied "as a consequence of [plaintiff's] having engaged in corporal punishment and overall poor performance." (Id. at ¶ 46, Ex. JJ).
Discussion
I. Summary Judgment Standard
Under Rule 56(c), summary judgment shall be rendered forthwith if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. § 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination. Anderson, 477 U.S. at 248.
The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323, 10 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The substantive law determines the facts which are material to the outcome of a particular litigation. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)).
If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 45 U.S. at 586, 106 S.Ct. at 1355. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).
Protected Speech
In order to succeed on a First Amendment retaliation claim, a plaintiff must demonstrate by a preponderance of the evidence that the speech at issue was protected, that he suffered and adverse employment action, and that there was a causal connection between the protected speech and the adverse employment action. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97 S.Ct. 568, 574-76, 50 L.Ed.2d 471 (1977). In addition, "the causal connection must be sufficient to warrant an inference that the protected speech was a substantial motivating factor in the adverse employment action." Blum v. Schlegel, et al., 18 F.3d 1005, 1010 (2d Cir. 1994) (citing Ezewko v. NYC Health an Hosp., Corp., 940 F.2d 775, 780-81 (2d Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 657, 116 L.Ed.2d 749 (1991). If a plaintiff can succeed in demonstrating these factors then the defendant must demonstrate by a preponderance of the evidence that it would have undertaken the same employment action "even in the absence of the protected conduct." Id. (citing Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576.
The Supreme Court has held that a "public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 1686, 75 L.Ed.2d 708, 1983 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). To determine the extent to which a State may regulate the speech of its employees, the courts must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."Pickering, 391 U.S. at 568, 88 S.Ct. at 1735.
Plaintiff argues that he has been retaliated against in violation of his right to free speech under the First Amendment for teaching special education students as required by federal and Board of Education guidelines; advocating for the tenets of special education; expressing to parents that he is a special education teacher; voicing his concern that a student had been permitted to cheat on a test; recommending that a particular student in his special education class not be transferred out of the Family Academy; recommending that another special education student receive music instruction; and expressing his concern that his students were being unfairly punished with the entire school. (See Pltff's 56.1. Stmt., ¶¶ 7, 10, 38, 41-43, 49, 52-53). Plaintiff further alleges the retaliation culminated in the November 21, 1997, incident when he was accused and later found to have engaged in an act of corporal punishment upon a student. (Id. at ¶¶ 57, 59-61, 74). Plaintiff argues the retaliation resulted in his termination and the refusal of defendants to reimburse him for personal money spent on students' supplies and private tutoring sessions. (Id. at ¶¶ 36-37).
As noted above, to determine the appropriate balance in a First Amendment claim of retaliation, one must consider both the nature of the speech by plaintiff and the nature of the services performed by plaintiff. "Factors important to the Pickering test include: the time, place, and manner of the speech, the content of the speech and the extent to which it touches on matters of public concern, and, the nature of the disciplined employee's responsibilities." McCullough v. Wyandanch Union Free School District, 132 F. Supp.2d 87, 89 (E.D.N.Y. 2001) (citing Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999). "Generally, speech addresses a matter of public concern when its content relates to `any matter of political social, or other concern to the community.'" Fillie-Faboe v. Vocational Education and Extension Board, 95 CV 4887 NGG WDW, 97 CV 4930 NGG WDW, 2001 WL 5333739 at *6 (E.D.N.Y. May 11, 2001) (citing Lewis v. Cowen, 165 F.3d 154, 161 (2d. Cir.), cert. denied, 528 U.S. 823 (1999). "Conversely, statements concerning merely private matters, such as personal grievances between employer and employee, are not entitled to First Amendment protection." Id. (citing Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir. 1996).
Fillie-Faboe was a highly educated, tenured teacher and an outspoken critic of the school, curriculum and teaching methods embraced by other teachers. Id. at *1. She developed and used her own pedagogical method and expressed concern regarding the curriculum and student conduct during faculty meetings. Id. The court found that "[in] view of the presumed pedagogical expertise of [a] teacher, it is reasoned that teachers are in a better position to comment on matters within their professional competence, and should do so without fear of retaliation." Id. at *7. The court denied defendants' motion for summary judgment finding that plaintiff's "comments regarding a higher academic standard, more rigorous curriculum, and the quality education at the [school] are precisely the kind of comments Pickering protects, id. at *8, and went on to hold that plaintiff's comments outweigh[ed] any minimal interference with the efficient education of the students." Id. See also Bowman v. Pulaski County Special Sch. Dist., 723 F.2d 640, 644-645 (8th Cir. 1983) (finding that public speech about the care, education and punishment of school children is a matter of public concern and outweighs other legitimate concerns of government); Fales v. Garst, 235 F.3d 1122, 1124 (8th Cir. 2001) (finding that "speech centered around the care and education of special education students touched upon matters of public concern").
Not all speech, however, is protected. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708, an assistant district attorney ("ADA"), upset about being ordered to make an unwanted transfer, circulated a questionnaire to her fellow ADAs seeking their comments on their confidence and trust in their supervisors, the level of office morale, and the need for a grievance committee for employee concerns. The Supreme Court decided that the questions were not of public import in evaluating the performance of the District Attorney as an elected office; they did not seek to inform the public that the office was not discharging its governmental responsibilities; they did not seek to bring to light actual wrongdoing on the part of the district attorney; and the questions, if released to the public, would convey nothing more than that a single employee is upset with the status quo. Id. at 148. The Court distinguished these issues from the question of whether ADAs were pressured to work in political campaigns which it did find was an issue of public concern.
Similarly, in Ezekwo v. NYC Health and Hosp. Corp., 940 F.2d 775 (2d Cir. 1991), the Court of Appeals affirmed the district court's decision that rejected a medical resident's claim that her series of letters and memoranda complaining of various conditions at the hospital, including supervision, teaching skills, management, and hospital maintenance, was constitutionally protected speech under the First Amendment. The Court determined that the resident was not seeking to protect the public welfare and agreed with the district court's finding that "the mere fact that one or two of Ezekwo's comments could be construed broadly to implicate matters of public concern does not alter the general nature of her statements." Id. at 781.
Many of the matters about which plaintiff voiced concern, e.g., introducing himself as a special education teacher, disagreement with the Libens' criticisms of his teaching methods, the qualification of a student in his class for music instruction, discipline of children in school, disagreement with the Libens about whether one of his students was "settling in well to Family Academy" or should be transferred out, concerned the operation of the school's internal affairs as they affected him and his students. These opinions were closely related to his individual concerns and do not necessarily become matters of public concern simply because in different circumstances the opinions might become the topic of general interest to the public.
However, some of the matters about which plaintiff spoke are similar to those in Fillie-Faboe and are clearly matters of public concern. For example, plaintiff, trained in the methods of special education, voiced concern that special education students be dispersed to mainstream homerooms, math and English classes in accordance with the "least restrictive environment" mandated by federal law and about a student's allegedly cheating on a test without repercussions. See e.g., Flynn Aff., ¶¶ 10-22, 37, 74. These concerns were voiced primarily at parent conferences, faculty meetings and in conversations with the Libens. "Limited public exposure and infrequent occurrence of the speech does not, however, necessarily render [plaintiff's] statements unprotected."Fillie-Faboe, 2001 WL 533739 at *6. Plaintiff's speech on these topics had little to do with his own labor dispute; rather he spoke as an educator regarding requirements of law and alleged cheating on a test. Thus, plaintiff "`enjoyed the right to speak on issues of public importance' which, when exercised `may not furnish the basis of [his] dismissal from public employment.'" Id. (citing Pickering v. Bd. of Ed. of Township High Sch. Dst. 205, 391 U.S. 563, 574 (1968). Accordingly, I find that at least some of plaintiff's speech concerned matters of public concern.
There is no dispute that plaintiff has satisfied the second prong of the test, that is, that he suffered an adverse employment action. However, plaintiff must also show a causal connection between his speech and the adverse employment action. Mount Healty, 429 U.S. 274, 283-287. [S]ummary judgment is precluded where a question of fact exists regarding an employer's motive and how important a role the protected speech played in the adverse employment action. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (citing Mount Healthy, 429 U.S. at 287).
Here, plaintiff asserts that two days after threatening plaintiff that she would "kick ass" and urging him to resign if he did not "fit into the school," (Flynn Aff., ¶¶ 74-75), the Libens falsely accused him of administering corporal punishment to a student on November 21, 1997. Defendants assert that he was terminated because of the November 21 accident and that he would have been terminated even if he had engaged in no speech. Viewing the record in a light most favorable to the plaintiff, genuine issues of fact exist as to the November 21 incident and, therefore, as to the causal connection between plaintiff's speech and his termination and as to whether he would have been terminated regardless of his speech. Accordingly, defendants' motions are denied on plaintiff's First Amendment claim.
Due Process Claims
To establish a claim for deprivation of property without due process of law, a plaintiff must: (1) identify a property right; (2) show that the state has deprived him of that right; and (3) show that the deprivation was without due process. Mehta v. Surles, 905 F.2d 595, 598 (2d Cir. 1990); Rooney v. Wittich, 21 F. Supp.2d 273, 281 (S.D.N.Y 1998). Under New York law, non-tenured teachers, such as substitute teachers and probationary teachers, do not have a property right in their employment.See New York Education Law § 2590-j (7)(a); Canty v. Bd. of Educ., 470 F.2d 1111, 1113 (2d Cir. 1972); Castro v. New York City Bd. of Educ., 777 F. Supp. 1113, 1117 (S.D.N.Y 1990).
It is undisputed that plaintiff was a non-tenured teacher. Because plaintiff had no property right in his teaching position, as a matter of law, he cannot show that the Board of Education deprived him of any right. Furthermore, even assuming that the defendants had deprived him of a property interest by terminating his probationary employment, there is no dispute that the deprivation would not have been without due process because plaintiff arbitrated his claims and was afforded adequate post deprivation hearings.
Defendants argue that plaintiff is a probationary teacher and therefore does not have a property interest in his position as a teacher. (Defts' Reply Mem., at p. 8). Plaintiff does not dispute or otherwise address the issue in his papers. (See generally, Pltff's 56.1. Stmt.; Pltff's Mem.).
In addition, as defendants argue, plaintiff could also have filed an Article 78 proceeding in the New York State courts. (Defts' Mem., p. 10).
Furthermore, plaintiff's § 1983 claims against the Board of Education must be dismissed because plaintiff cannot show that a policy or practice of the Board of Education caused the alleged deprivation of his due process rights. To establish municipal liability for alleged constitutional violations, plaintiff must prove that defendants' actions against him were caused by a specific identifiable policy, Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018 (1978), or that the challenged conduct resulted directly from a decision "properly made by the government's authorized decision makers," Penbaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 469 (1986). Plaintiff has not alleged and he has not advanced any evidence to the effect that a policy or practice by the Board of Education caused a deprivation of his 14th Amendment right to due process. Accordingly, defendants' motion for summary judgment on behalf of the Board of Education on plaintiff's § 1983 claim is granted.
State Law Claims and the Motion to Amend the Complaint
The parties cross-move on plaintiff's claim that defendants have violated his rights under §§ 190 et. seq. of the New York State Labor Law because they failed to pay for alleged private tutoring sessions he gave to children after school.
Plaintiff argues that it is "undisputed" that in early October the Libens agreed to pay him, through a program called "Friends of the Family Academy, Inc.," $15 per hour for two hours and forty minutes per week of private tutoring classes and that he was paid for these sessions every two weeks with his regular paycheck. (Flynn Aff., ¶¶ 69-73). He asserts that he was paid for tutoring sessions in September and October but that the Libens refused to pay him for sessions held on October 20th and November 19th and that he is owed between $60 and $80. (Id.) Plaintiff provides a pay stub as proof that defendants agreed to pay for tutoring, (Pltff's 56.1. Stmt., ¶ 125, Ex. V), and argues that he is entitled to summary judgment because "defendants have produced no evidence to the contrary," (Pltff's Mem. at p. 18) Defendants argue that "there is no proof that this payment was made for tutoring" and that plaintiff has failed to submit "any evidence of an agreement by defendants to pay plaintiff for private tutoring or that he submitted requests for private tutoring." (Defts' Reply Mem. at p. 9).
Defendants further argue that to the extent plaintiff is asserting the existence of an oral employment contract with an indefinite term of years, the Statute of Frauds would bar enforcement and such contract would be void. (Defts' Reply Mem., p. 9).
Defendants also argue that plaintiff's cross-notion for summary judgment on his breach of contract claim for failure to pay him for tutoring sessions must be denied for failure to exhaust his administrative remedies. An employee whose employment is subject to the terms of a collective bargaining agreement must follow the grievance and arbitration procedures set forth in the agreement before commencing an action in court. Matter of Cantes v. Bd of Educ. of the City of New York, 535 N.Y.S.2d 714, 716 (1st Dep't 1988). Plaintiff has presented no evidence that he submitted his tutoring bill grievances to arbitration. Therefore, because plaintiff did not grieve these matters in accordance with the terms of the collective bargaining agreement, he is barred from raising these issues in federal court. See Board of Educ. v. Ambach, 70 N.Y.2d 501, 508-09 (1987) (holding that in the absence of a breach of the union's duty of fair representation, the failure to exhaust all contractual remedies, including arbitration bars the employee's right to sue the employer directly). Accordingly, plaintiff' s claims under New York Labor Law § 190 are dismissed without prejudice for failure to exhaust his administrative remedies.
Furthermore, plaintiff did not file a notice of claim with the Board of Education. New York Education Law § 3813(1) provides that:
No action or special proceeding, for any cause whatever,. . . or claim against the district or any such school, or involving the rights or interests of any district or any such school shall prosecuted or maintained against any school district, board of education, . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused t make an adjustment or payment thereof for thirty days after presentment.
N.Y. Educ. Law § 3813(1) (emphasis added).
A notice of claim is required prior to filing an action against the school. Because plaintiff has failed to file a notice of claim with the Board of Education, he has failed to satisfy a condition precedent to bringing a state law contract claim against defendants. Accordingly, defendants' motion for summary judgment is granted, and plaintiff's cross-motion for summary judgment is denied.
Motion to amend the Complaint
Plaintiff also seeks to amend his complaint to add a claim for breach of contract for defendants' failure to reimburse him for school supplies. He argues that "it is undisputed that when [he] began working for the Family Academy, he informed Mrs. Liben that he wished to purchase supplies for his class, and Mrs. Liben agreed that if he purchased supplies, defendants would reimburse him." (Pltff's Mem., p. 18).
A motion to amend the complaint should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the movant, or futility. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). A motion to amend can be denied if the amendment would be futile and "an amendment is considered futile if the amended pleadings fails to state a claim or would be subject to a motion to dismiss on some other basis." Gilber, Seagall, and Young v. Bank of Montreal, 785 F. Supp. 453, 457 (S.D.N.Y. 1992).
Plaintiff argues that the amendment here would not be futile, (Pltff's Mem., p. 19), because "the material facts are undisputed that defendants breached their contract with plaintiff that they would reimburse him for any supplies that he purchased for his class," (id.). Plaintiff further argues that "defendants . . . affirmatively admit that, a check to reimburse plaintiff for his purchase for the school was issued, but, `since plaintiff was not employed at the Board of Education when such payments were made, the school was instructed to return the payment to the Board of Education.'" (Pltff's Mem., p. 20) (citing Defts' Mem., pp. 13-14).
Defendants argue that plaintiff has failed to provide evidence that 1) he submitted his receipts to the school for reimbursement; or 2) that he returned the supplies to the school on his last day of service as required by the "Purchasing and Accountability Guidelines." (Defts' Mem., p. 13, Ex. MM, p. 4). Defendants further argue that "in situations where a Principal/CSE is unable to distribute a check because a participant has left the school or refuses to accept the check, the word `VOID' should be clearly written across the check and it should be returned by the site to the appropriate District, High School or Central Business Office." (Id.).
Similar to his claim for tutoring fees, and as noted above, plaintiff has failed to exhaust his administrative remedies and has failed to file a notice of claim with respect to his complaint for reimbursement of funds spent on school supplies. Therefore, any amendment would be futile. Accordingly, plaintiff's motion to amend the complaint is denied.
Conclusion
Defendants' motion for summary judgment is granted in part and denied in part, plaintiff's cross motion for summary judgment is denied, and the plaintiff's motion to amend is denied. Counsel shall appear for a conference in Courtroom 12A, 500 Pearl Street on November 5, 2002 at 9:00 a.m.
SO ORDERED.