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holding that the superintendent's power to discharge employees “is circumscribed by the [c]hancellor and the [b]oard's authority to overrule the superintendent,” and, accordingly, “the superintendent cannot be said to be the final policymaker”
Summary of this case from T.E. v. Pine Bush Cent. Sch. Dist.Opinion
01 Civ. 1991 (NRB)
July 31, 2003
Edward H. Wolf, Esq. Edward H. Wolf, P.C., Bronx, NY, Counsel for Plaintiff.
Donald C. Sullivan, Esq. Office of the Corporation Counsel of the City of New York, New York, NY, Counsel for Defendant.
OPINION AND ORDER
Plaintiff Doretha McDonald ("McDonald" or "plaintiff") brought this action against defendants Board of Education ("the Board"), Chancellor Harold Levy, and District Five Administrator Askia Davis seeking monetary and injunctive relief under 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Plaintiff alleged violations of her constitutional rights arising out of the Board's attempt to terminate her. Early on in this litigation the defendants moved to dismiss the complaint. In our July 25, 2001 Memorandum and Order, we rejected McDonald's Fifth and Fourteenth Amendment claims and her claim of a civil rights violation under section 1985, but, based on allegations in the complaint that the defendants terminated McDonald in retaliation for her union membership and activities, held that McDonald had stated a claim for violation of her First Amendment right to free association. McDonald v. Bd. of Educ., 01 Civ. 1991 (NRB), 2001 U.S. Dist. LEXIS 10325, at *19, *24, *28, *30 (S.D.N.Y. Jul. 25, 2001). Plaintiff has now moved for summary judgment on liability, and the defendants have opposed this motion and cross-moved for summary judgment. For the reasons stated herein, we deny plaintiff's motion and grant summary judgment to defendants.
Subsequent to the filing of the complaint in this action, the New York city Board of Education was renamed the Department of Education. For the sake of clarity, we will in this opinion refer to it as the Board of Education or "the Board."
Plaintiff had initially named the United Federation of Teachers, AFL-CIO as a defendant, but consented to an order dismissing that defendant on May 22, 2001.
BACKGROUND
Unless otherwise noted, the facts in this section are taken from the Plaintiff's Statement Pursuant to Local Rule 56.1 ("Pl. Rule 56.1") and the Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts.
McDonald started as a substitute teacher at P.S. 30 in Harlem in 1984, and became the union representative for the school in 1994. Deposition of Doretha McDonald on Aug. 20, 2002 ("Aug. 20, 2002 McDonald Dep.") (Pl. Ex. QQ) at 16. In January of 1999, when Askia Davis, Ed.D., the District Administrator for the school's district, advocated a "redesign" for the school, a process that could have resulted in the transfer of several of the school's teachers, plaintiff invited a UFT official to talk to the faculty about alternative methods to improve the school's disappointing performance. McDonald Aff. at ¶¶ 60-63. At this meeting, in a straw vote, a majority of the school's faculty voted against the redesign plan. Id. at ¶ 64.
At approximately the same time, school principal Harriet Fortson, and others at the school, began observing plaintiff's classes with more frequency, gave her unsatisfactory ratings based on these observations, and raised allegations of verbal corporal punishment. In May of 1999, Davis informed McDonald that he was not certifying the completion of her period of probationary service — in essence, he was denying her tenure. Davis Letter to McDonald dated May 28, 1999 (Pl. Ex. X). In June of 1999, she was informed that she had effectively been terminated by being placed on the Board's "Ineligible/Inquiry List." Robert J. Reich Letter to McDonald dated June 17, 1999 (Pl. Ex. II).
Defendants assert, and we agree, that, in the absence of any claims against a defendant in their personal capacity, McDonald must establish municipal liability under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978)." Because the Monell analysis in this case requires a determination of who had final policymaking authority over employment decisions, the multitude of steps plaintiff took to appeal the adverse employment actions against her are relevant. Pursuant to a Collective Bargaining Agreement, McDonald grieved her termination to an arbitrator, who concluded in June of 2001 that McDonald had been terminated due to discrimination based on her union activity. Opinion and Award dated June 29, 2001 (Pl. Ex. OO) at 15. The arbitrator ordered the Board to reinstate McDonald to her position as a probationary teacher for one additional year, and remove her from the ineligible list. Id. at 15-16.
Defendant Harold Levy was named in his official, as opposed to personal, capacity. The Amended Complaint names "HAROLD LEVY as successor to RUDOLPH CREW," Am. compl. at 1, and plaintiff in a deposition did not include Levy in a list of people who she said exhibited anti-union bias toward her. Aug. 20, 2002 McDonald Dep. at 136-38. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (stating that to sue official in personal capacity under section 1983, plaintiff must "show that the official, acting under color of state law, caused the deprivation of a federal right"). "Official-capacity suits . . . `generally represent only another way of pleading an action against an entity of which an officer is an agent,'" id. at 165 (quoting Monell v. N.Y. city Dep't of Social Servs., 436 U.S. 658, 690 n. 55 (1978)), and thus such suits trigger the same Monell "policy or custom" analysis that is applied in suits against the entity itself. Id. at 166. Plaintiff does not contest that Levy was named in his official, not personal, capacity, nor does she contest that defendant Davis was not served. Thus, to prevail, McDonald must establish municipal liability under Monell.
In addition to pursuing her case in front of an arbitrator, McDonald wrote directly to Chancellor Rudy Crew (McDonald Letter dated Oct. 6, 1999, Pl. Ex. JJ); grieved the corporal punishment charge against her, Aug. 20, 2002 McDonald Dep. at 67; and made inquiries with the Board's Office of Appeals and Reviews and Office of Special Investigation to determine the reason she was placed on the ineligible list. Id. at 53-55. A hearing concerning her unsatisfactory rating was held before a hearing officer, Mr. Kizelberg, on December 3, 2002. McDonald Aff. at ¶¶ 192-95. Kizelberg was required to submit his report from that hearing to the Chancellor for his signature. Id. On January 21, 2003, a Deputy Chancellor writing "as designee for Joel I. Klein, Chancellor" informed plaintiff that her appeal had been sustained and her unsatisfactory rating reversed. McDonald Aff. in Reply at ¶ 6; Diana Lam Letter dated Jan. 21, 2003 (McDonald Aff. in Reply Ex. A).
McDonald successfully grieved the bulk of the unfavorable material that had been placed in her file, including the charge of verbal corporal punishment that had been filed.
In her deposition, plaintiff identified eight individuals who she says aided in the discrimination against her based on her union activity. Aug. 20, 2002 McDonald Dep. at ¶¶ 136-38. The positions these individuals occupied in relation to District Administrator Davis are also relevant to our Monell analysis. Apart from Davis himself, four are Davis's subordinates. Id. at 136-38. The three others worked directly for the Chancellor: Robert Reich, the Director of the Chancellor's Office of Appeals and Reviews; Marlene Malamy, the Director of the Chancellor's Office of Special Investigations; and Christopher Dalton, that Office's Chief Investigator. Id. at 138. Plaintiff does not claim that any Chancellor personally took action to discriminate against her based on her union activities.
DISCUSSION
I. Summary Judgment StandardA court may grant summary judgment under Fed.R.Civ.P. 56(c) only when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In deciding the motion, the court draws all reasonable inferences in favor of the party against whom summary judgment is sought, Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975), and should only grant summary judgment where no reasonable trier of fact could find in favor of the non-moving party, Cruden v. Bank of N.Y., 957 F.2d 961, 975 (2d Cir. 1992).
II. Monell Liability
To establish a First Amendment claim under 42 U.S.C. § 1983 or 42 U.S.C. § 1985 against the City of New York, a plaintiff must show that the officials who deprived her of her constitutional rights acted pursuant to a municipal policy or custom. Monell, 436 U.S. at 690; Odom v. Kerns, 99 Civ. 10668 (DLC), 2000 U.S. Dist. LEXIS 12411, at *7 (S.D.N.Y. Aug. 29, 2000); Philippeaux v. North Cent. Bronx Hosp., 871 F. Supp. 640, 657 (S.D.N.Y. 1994) (applying Monell municipal policy or custom requirement to 42 U.S.C. § 1985 claim).
When a plaintiff does not assert that the actions complained of were taken pursuant to a policy that was formally ratified, but rather claims that they were taken by an official whose actions represent official policy, the court must determine whether that official had final policymaking authority in the particular area involved. Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (citing Jett v. Dallas Indep. School Dist., 491 U.S. 701, 737 (1989), St. Louis v. Praprotnick, 485 U.S. 112, 123-125 (1988) (plurality opinion)). "It does not suffice for these purposes that the official has been granted discretion in the performance of his duties." Id. "Only those municipal officials who have final policymaking authority may by their actions subject the government to § 1983 liability." Id. (quoting Praprotnick, 485 U.S. at 123). Whether the official in question possessed final policymaking authority is a legal question to be answered on the basis of state law by the trial judge before the case is submitted to the jury. Id. (citing Jett, 491 U.S. at 737, McMillan v. Monroe County, 520 U.S. 781, 786 (1997),Praprotnick, 485 U.S. at 123-24).
Here, the focus of plaintiff's attention is on Davis as the official whose actions, she argues, should be binding on the City. We begin our evaluation of Davis's role by noting that decisions concerning teacher tenure are governed by statute. For a teacher in a period of probationary service, as McDonald apparently was, the procedure for removal is provided for in section 2573 of the New York State Education law. Such a teacher "may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education." N.Y. Educ. Law § 2573(1)(a) (1999). The statute on its face makes clear that, though the superintendent of schools may recommend discontinuance of probationary service, he does not have the final authority to approve such discontinuance. This authority lies with the Board. Indeed, Davis's letter to McDonald terminating her service under her term of probationary service cited this very section of New York law. Davis Letter to McDonald dated May 28, 1999 (Pl. Ex. X).
Davis's title is actually "district administrator," however, it is undisputed that that position was equivalent in terms of its powers and duties to that of a superintendent. Davis Dep. (Pl. Ex. TT) at 18-19.
Moreover, McDonald's own actions in response to Davis's discontinuation of her term of probationary service only confirm that Davis was not the final policymaker with respect to employment decisions concerning teachers in his district. McDonald pursued multiple avenues to appeal Davis's decisions, and when she received a hearing on her unsatisfactory rating in December of 2002, the hearing officer was required to submit his report to the Chancellor for his signature. McDonald Aff. at ¶¶ 193-95. In response, the Chancellor's designee reversed McDonald's 1999 unsatisfactory rating. McDonald Aff. in Reply at ¶ 6; Diana Lam Letter dated Jan. 21, 2003 (McDonald Aff. in Reply Ex. A). This is compelling evidence that Davis's employment decisions concerning McDonald were by no means "final." See St. Louis v. Propratnick, 485 U.S. 112, 116, 118, 128 (1988) (plurality opinion) (reversing Court of Appeals finding of Monell liability where director of a City development agency had transferred plaintiff, who was later laid off, and noting that independent Civil Service Commission existed "to review and correct improper personnel actions," and plaintiff had made "repeated appeals from adverse personnel decisions [that] repeatedly brought him at least partial relief"); Hill v. N.Y. City Bd. of Educ., 808 F. Supp. 141, 151 (E.D.N.Y. 1992) (holding that, where Chancellor of Board of Education and Board of Education "retained the authority to overrule [Director of the Office of Pupil Transportation] on appeal" concerning his decision to fire employees, Director did not have final policymaking authority).
Plaintiff argues that "the Chancellor had delegated his powers to Dr. Davis pursuant to Education Law 2590-h (38)." Pl. Mem. at 23. That section grants to the New York City Chancellor certain authority normally allocated to school boards under another section of the state code, section 3020-a, but allows the Chancellor to delegate this authority to the community superintendents. However, section 3020-a only applies to charges filed "against a person enjoying the benefits of tenure," N.Y. Educ. Law § 3020-a (1999), but plaintiff had not completed her probationary period, and thus was not tenured. Moreover, the text of section 2590-h only allows the Chancellor to delegate his 3020-a duties and responsibilities. Plaintiff has failed to put forth any evidence that this actually took place. Cf. Pohl v. Green, 88 Civ. 8568 (RJW) 1991 U.S. Dist. LEXIS 17889, *6-*11 (S.D.N.Y. Dec. 11, 1991) (noting that section 2590-h(19) of the N.Y. Educ. Law allowed the Chancellor to "delegate any of his powers and duties to such subordinate officers or employees as he deems appropriate," but still analyzing actual evidence of delegation in concluding that Chancellor and Board of Education delegated final policymaking authority to Director of Hospital and Home Instruction). Finally, plaintiff's successful appeal of her unsatisfactory rating to the Chancellor belies any argument that a delegation of final authority in fact took place.
The relevant text of section 2590-h states:
The chancellor shall have the following powers and duties as the superintendent of schools and chief executive officer for the city district . . . including the power and duty to:
. . . .
38. to exercise all of the duties and responsibilities of the employing board as set forth in section three thousand twenty-a of this chapter with respect to any member of the teaching or supervisory staff of schools under the jurisdiction of the community boards. The chancellor shall exercise all such duties and responsibilities for all community districts or may delegate the exercise of all such duties and responsibilities to all of the community superintendents of the city district.
N.Y. Educ. Law § 2590-h (1999). Section 3020-a specifies, among other things, that upon receipt of charges filed by a tenured employee, the school board determines whether probable cause exists to bring a disciplinary proceeding against an employee, and, if the employee waives his right to a hearing, determines the case and fixes the penalty to be imposed. N.Y. Educ. Law § 3020-a(2) (1999). However, for the New York City schools, the authority normally granted to the school board under section 3020-a is granted to the chancellor by section 2590-h.
Plaintiff has not argued before us, as she did before Justice Walter B. Tolub of the Supreme court of the State of New York, that she was tenured by estoppel in June of 1998, a position not adopted by any forum. Motion to Reargue/Renew dated Oct. 22, 2002 (Def. Ex. C) at ¶ 9.
Moreover, the fact that the New York State Education law grants community superintendents the power "to appoint, define the duties of, assign, promote and discharge all employees, including teacher-aides, of the community district," N.Y. Educ. Law § 2590-f (1999), does not advance plaintiff's position. "The power to make hiring decisions . . . does not in itself give rise to potential Section 1983 liability."Philippeaux v. North Cent. Bronx Hosp., 871 F. Supp. 640, 653 (S.D.N.Y. 1994). Where, as here, that authority is circumscribed by the Chancellor and the Board's authority to overrule the superintendent, the superintendent cannot be said to be the final policymaker.
Perhaps recognizing that final policymaking status under Monell cannot possibly lie with Davis, plaintiff now argues in the alternative that the Chancellor and the Board were in fact participants in the adverse employment actions taken against her based on anti-union animus. In her deposition, plaintiff identified only three individuals who did not report to Davis who she claimed took employment actions against her: Robert Reich, the Director of the Board's Office of Appeals and Reviews; Marlene Malamy, the Director of the Board's Office of Special Investigations; and Christopher Dalton, that Office's Chief Investigator. However, plaintiff has failed to show that the actions of these three individuals demonstrate that the true final policymakers here — the Chancellor and the Board — played a role in terminating her due to anti-union animus. She cites a letter dated March 16, 1999 and sent by Robert Reich, the Director of the Office of Appeals and Reviews, to Davis, in which Reich states his opinion that "[a]fter reviewing the material presented and should the letters we discussed be issued, it is my opinion that sufficient documentation currently exists to rate the employee unsatisfactory and to recommend denial of completion of probation." Letter from Robert Reich dated Mar. 16, 1999 (Pl. Ex. S) (emphasis added). On its face, the letter is simply an offer of advice from a neutral source based on the presumably legitimate documentation in plaintiff's file. Thus, there is no basis to infer that Reich was a knowing participant in a conspiracy to terminate McDonald for her union activities. Nor is there any evidentiary basis to attribute Reich's action to the Chancellor. A similar analysis is applicable to Malamy and Dalton. Although Dalton is alleged to have submitted a memorandum to Malamy stating that the corporal punishment allegations against McDonald were founded, Pl. Rule 56.1 ¶ 100.DD; McDonald Aff. ¶ 147, there has been no showing that final policymaking authority was ever delegated to them, nor a showing that they were knowing participants in a scheme to terminate plaintiff for her union activities, nor has any connection of the Chancellor in such a scheme been shown.
The cases McDonald cites in opposition are unavailing. In Rookard v. Health Hospitals Corp., 710 F.2d 41 (2d Cir. 1983), the Second Circuit concluded that the Executive Director and the Vice President for Corporate Affairs of a hospital were final policymakers for employment decisions, relying in part on the fact that their superior, when sent evidence that the plaintiff was removed from her position for uncovering fraud at the hospital, referred the evidence to the Executive Director.Id. at 45-46. Plaintiff argues that the facts before us are analogous toRookard, because "after plaintiff wrote the Chancellor directly on October 6, 1999 that she had been terminated . . . and that she had been `set up' . . ., the Chancellor did not intervene." Pl. Mem. at 23. However, the record shows that, unlike in Rookard, the appeal did not fall on deaf ears, since here, the Chancellor through a designee eventually reversed plaintiff's unsatisfactory rating. In addition,Rookard lacked the straightforward statutory language that exists here vesting final authority for employment decisions in an entity above the person alleged to have taken employment action adverse to plaintiff.Lathrop v. Onodaga County, 220 F. Supp.2d 129 (N.D.N.Y. 2002) is inapposite for a similar reason: in that case, substantial evidence existed of actual delegation by superiors to the official who took the adverse employment action.Id. at 137-38.
Finally, plaintiff asserts that, if Davis's actions do not constitute Board policy, Monell liability can be grounded on the existence of a municipal custom, namely, the "lettering" of employees' files. When a plaintiff attempts to establish Monell liability by asserting that the actions complained of were taken pursuant to a municipal custom, she must show that "the relevant practice is so widespread as to have the force of law." Davis v. City of New York, 228 F. Supp.2d 327, 337 (S.D.N.Y. 2002) (quoting Bd. of County Comm'rs v. Brown, 520 U.S. 397, 404 (1997)).
The "lettering" of a file, according to plaintiff, is the placement of multiple negative reviews in the employee's file, so that terminated teachers face significant obstacles in challenging the basis for their termination. Whether or not this practice is commonplace, plaintiff has made no showing that it exists due to anti-union animus. Under the law, " discriminatory practices of city officials" must be "`so permanent and well settled as to constitute a "custom or usage" with the force of law'" in order to trigger Monell liability. Sorlucco v. N.Y. City Police Dep't, 971 F.2d 864, 870-71 (2d Cir. 1992) (quoting Monell, 436 U.S. at 691) (emphasis added). For this reason, plaintiff's argument concerning a municipal custom fares no better than her argument concerning municipal policy, and we grant defendants' motion for summary judgment.
Indeed, on the record before us, any "custom" on the part of the Board of requiring an extensive documentary record before initiating a termination can simply be viewed as a sound practice designed to minimize both the unfairness and the expense of a wrongful termination and a necessary corollary of a tenure system. One can easily imagine the arguments plaintiffs would raise if there were no documentary support for their termination or other disciplinary action.
We deny plaintiff's motion for summary judgment for the same reason we grant summary judgment to defendants. Because plaintiff cannot show a basis for Monell liability, she has not shown that no reasonable trier of fact could find for defendants. See Cruden v. Bank of N.Y., 957 F.2d at 975 ("Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted."). In light of our ruling on Monell liability, we do not reach plaintiff's other arguments which focused on the substantive merits.