Opinion
00 Civ. 8208 (SHS), 01 Civ. 1976 (SHS)
July 1, 2002
OPINION
Plaintiff Anna Rivera, a former New York City public school teacher, filed these two lawsuits in response to disciplinary actions taken against her for her alleged participation in a scheme to provide improper assistance to students taking standardized tests. Rivera's first suit, No. 00 Civ. 8208, charged that she was wrongfully terminated without a meaningful hearing in violation of her due process rights and in retaliation for exercising her First Amendment right to petition the government for redress of grievances. In May 2001, this Court dismissed Rivera's due process claims with prejudice and dismissed her First Amendment claims with leave to replead additional facts showing a causal connection between her alleged protected activity and her termination. Subsequently, Rivera filed two amended complaints in the first action and initiated a second action, No. 01 Civ. 1976, against the authors of the investigative report that accused her of misconduct, asserting that these defendants violated her due process and First Amendment rights and defamed her. Defendants have moved to dismiss both complaints.
For the reasons set forth below, the Court finds that Rivera's constitutional claims in both actions must be dismissed because (1) Rivera's protests regarding the school district's disciplinary actions against her do not touch on matters of public concern and therefore may not form the basis of a First Amendment retaliation claim and (2) Rivera had adequate opportunity to clear her name and thus did not suffer a deprivation of due process. In the absence of any surviving federal claims, the Court declines to exercise supplemental jurisdiction over Rivera's state law defamation claims. Accordingly, the complaint in 00 Civ. 8208 is dismissed with prejudice in its entirety, and the complaint in 01 Civ. 1976 is dismissed with prejudice as to the due process and First Amendment claims and without prejudice to refiling the defamation claims in state court.
I. BACKGROUND
A. Facts
The following facts are taken from the two complaints and are assumed to be true. Rivera began working as an elementary school teacher in New York City's Community School District Nine ("District Nine") in 1989. A decade later, in December 1999, Edward F. Stancik, at that time the Special Commissioner of Investigation for the New York City School District, issued a report entitled "Cheating the Children: Educator Misconduct on Standardized Tests" (the "Report"). The Report, which was widely publicized, named Rivera as one of a number of teachers in city public schools who had used inappropriate means to raise student scores on standardized tests. Specifically, the Report charged that Rivera was present while another teacher prepared a "cheat sheet" for third-grade students the day before the administration of citywide math and reading tests in 1995. The day the Report was issued, District Nine reassigned Rivera to a non-teaching position at St. Paul Church in the South Bronx. She was later assigned to clerical functions at the District Nine office. (See 00 Civ. 8208 Second Am. Compl. ¶¶ 11-22; 01 Civ. 1976 Compl. ¶¶ 10-22.)
Shortly after her reassignment to St. Paul Church, District Nine's superintendent directed Rivera to attend a disciplinary meeting. In a letter to District Nine's director of operations dated December 15, 1999, Rivera's attorney alleged that the district's investigation and reassignment of Rivera violated her constitutional rights "as they relate to her liberty and property interests in her teaching position." (00 Civ. 8208 Second Am. Compl., Ex. I.) At the December 16 disciplinary meeting, Rivera's union representative raised a number of procedural defenses on her behalf. A week later Rivera received a decision upholding the allegations of the Report. A letter of reprimand was placed in Rivera's teaching file and she received an "unsatisfactory" rating for the 1999-2000 school year. (00 Civ. 8208 Compl. ¶¶ 23-29; 01 Civ. 1976 Compl. ¶¶ 25-26; ¶¶ 55-63.) In February 2000, Rivera filed a notice of claim against Stancik, two individual investigators, and the City of New York, asserting violations of her civil rights and defamation in connection with the publication of the Report. (See Kitzinger Del., Ex. C.)
On August 11, 2000, Stancik's office issued a Supplemental Report that accused Rivera of providing inappropriate assistance to students on a 1999 reading test, pressuring other teachers to do the same, and attempting to assault another teacher who refused to go along with the cheating. (See 01 Civ. 1976 Compl., Ex. A.) Shortly after the Supplemental Report was released, a local television station broadcast a story on the cheating allegations. The television broadcast included statements from Stancik accusing Rivera of helping students to cheat on the 1998 and 1999 tests and calling for her termination. (See 01 Civ. 1976 Compl. ¶¶ 31-39.)
Within a fortnight, Rivera filed a second notice of claim, asserting that Stancik "gave interviews to the media defaming [her] character and professional reputation, in violation of her City, State and Federal Civil Rights." The claim further stated that Stancik's conduct was in retaliation for Rivera's first notice of claim. (Kitzinger Decl., Ex. D.)
District Nine's superintendent summoned Rivera to a second disciplinary meeting to be held August 28, 2000. At that meeting Rivera again denied the charges against her. Three days later, District Nine's superintendent informed Rivera that as a result of the Supplemental Report and the disciplinary meeting, the district had decided to deny her tenure and terminate her employment as of October 31, 2000. (00 Civ. 8208 Compl. ¶¶ 35-40; 01 Civ. 1976 Compl. ¶¶ 30-32, 41.)
B. The First Federal Action
That same month, Rivera filed her first civil complaint, naming District Nine, the superintendent of that district, the New York City Board of Education and the chancellor of the Board of Education as defendants. The complaint alleged that they denied Rivera due process rights by failing to provide a meaningful pre-removal hearing and violated her First Amendment rights by retaliating against her for filing a grievance against the authors of the Report. Defendants moved to dismiss the complaint; in May 2001 this Court held that: (1) as a probationary teacher, Rivera had no property interest in her position; (2) she did have a liberty interest in her good name and reputation; but that (3) New York state law provided Rivera with adequate redress in the form of an Article 78 proceeding, and therefore there was no constitutional violation to be redressed through a federal action brought pursuant to 42 U.S.C. § 1983; and (4) Rivera's First Amendment claim failed to plead sufficient facts to establish a causal connection between her filing of a notice of claim against the City, Stancik and the individual investigators, and her termination. Rivera v. Cmty. Sch. Dist. Nine, 145 F. Supp.2d 302, 304 (S.D.N.Y. 2001) ("Rivera I"). The Court granted Rivera leave to replead within thirty days if she could establish such a causal connection.
In June 2001, Rivera filed an amended complaint containing additional factual allegations regarding defendants' alleged retaliatory conduct and restating each and every claim raised in the original complaint. Rivera's attorney subsequently filed a Second Amended Complaint withdrawing the claims that had previously been dismissed with prejudice.
C. The Second Federal Action
In March 2001, Rivera filed a second civil action, this time against Stancik, Deputy Chief Investigator Thomas Cominsky, Special Investigator Mark B. Crowley, and the City of New York, alleging that they had deprived her of her liberty and property interests in her teaching position without due process, violated her First Amendment rights and defamed her. The complaint further alleged that as of the date of her termination Rivera should have received automatic tenure by operation of law because her former employers did not follow proper procedure in denying her tenure. (See 01 Civ. 1976 Compl. ¶ 42.)
Defendants in both actions have moved to dismiss the respective complaints. Defendants in 00 Civ. 8208 contend that Rivera's First Amendment claim fails because she did not engage in protected speech and there was no causal connection between her filing of a notice of claim and the termination of her employment. Defendants in 01 Civ. 1976 move to dismiss that complaint on the grounds that (1) no process was due Rivera prior to her termination; (2) New York C.P.L.R. Article 78 provides an adequate forum for any process to which Rivera may be due; (3) neither plaintiff's letters nor her notice of claim constitute protected speech; (4) her defamation claim is time-barred; and (5) her notice of claim was deficient.
II. DISCUSSION
In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6), a court merely assesses the legal feasibility of the complaint, and does not weigh the evidence that may be offered at trial. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998); Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). All factual allegations in the complaint must be accepted as true, and the complaint must be viewed in the light most favorable to the plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Bayer Corp. v. Smithkline Beecham PLC, No. 95 Civ. 5582, 1996 WI., 34164, at *2 (S.D.N.Y. Jan. 29, 1996). Although a court is limited to the facts stated in the complaint, for purposes of a Rule 12(b)(6) motion the complaint includes any central documents attached as exhibits or incorporated by reference. See Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A motion to dismiss should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).
A. First Amendment Claims (00 Civ. 8208, 01 Civ. 1976)
To survive a motion to dismiss, "a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001); see also Posr v. Court Officer Shield #207, 180 F.3d 409, 418 (2d Cir. 1999); Velasquez v. Goldwater Mem'l Hosp., 88 F. Supp.2d 257, 264 (S.D.N.Y. 2000).
In Rivera I, the Court dismissed Rivera's First Amendment claim on the grounds that she had failed to plead sufficient facts that would support an inference of a causal connection between her filing of a notice of claim against the authors of the Report and the termination of her employment with District Nine. Rivera purports to establish such a connection in her amended complaint. The Court does not, however, reach this issue since Rivera's speech does not touch on matters of public concern and therefore is not protected by the First Amendment.
A public employer may not discharge or otherwise retaliate against an employee for the exercise of her First Amendment rights. Ezekwo v. New York City Health Hosps. Corp., 940 F.2d 775, 780 (2d Cir. 1991) (citing Perry v. Sinderman, 408 U.S. 593, 597 (1972)). In determining the scope of these rights, courts seek a "balance between 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 v. Board of Education, 391 U.S. 563, 568 (1968). As a threshold matter, a public employee asserting a First Amendment claim must establish that the speech at issue can "be fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146 (1983).
The public concern requirement protects the employee's interest in freedom of expression while recognizing that "government offices could not function if every employment decision became a constitutional matter." Id. at 143.
[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. . . . Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the State.
Id. at 147.
The First Amendment right to petition the government for redress of grievances is "an assurance of a particular freedom of expression" and is therefore "generally subject to the same constitutional analysis as the right to free speech," including the public concern requirement. White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993) (internal quotations and citations omitted). See also Sussman v. New York City Health Hosps. Corp., No. 94 Civ. 8461, 1997 WL 334964, at *9 (S.D.N.Y. June 16, 1997) (claims under petition clause of First Amendment not exempt from public concern requirement).
A court determines whether an employee's speech relates to a matter of public concern by examining the content, form and context of a particular statement. Connick, 461 U.S. at 147-48. In making this determination, "[t]he fundamental question is whether the employee is seeking to vindicate personal interests or to bring to light a 'matter of political, social, or other concern to the community.'" Rao v. New York City Health Hosps, Corp., 905 F. Supp. 1236, 1243 (S.D.N.Y. 1995) (quoting Connick, 461 U.S. at 146).
Grievances that relate solely to a public employee's individual employment situation are matters of private interest ad therefore do not state a First Amendment claim. See Bernheim v. Litt, 79 F.3d 318, 324-25 (2d Cir. 1996); Cliff v. Board of Sch. Comm'rs of Indianapolis, 42 F.3d 403, 411 (7th Cir. 1994) (public school teacher's complaints about class size and disciplinary problems made in the context of personnel dispute with her employers were not matter of public concern); Sussman, 1997 WL 334964 at *10 (physician's dissatisfaction with his situation within hospital residency program); Peele v. New York City Dep't of Social Servs., No. 92 Civ. 3765, 1995 WL 728478, at *6 (S.D.N.Y. Dec. 8, 1995), aff'd, 112 F.3d 505 (2d Cir. 1996) (union grievance relating to proposed change in job functions); O'Malley v. New York City Transit Auth., 829 F. Supp. 50, 53 (E.D.N.Y. 1993) (retaliation for filing a worker's compensation claim); Grogan v. Holland Patent Cent. Sch. Dist., No. 00 Civ 0399, 2000 WL 33115406, at *3 (N.D.N.Y. Dec. 18, 2000) (grievance regarding working conditions). By contrast, speech on topics of public concern beyond the employee's interest in her own career is protected by the First Amendment. See Bernheim, 79 F.3d at 325; O'Malley, 829 F. Supp. at 53-54 (letter to employer revealing supervisor's criminal record); Rao, 905 F. Supp. at 1243 (complaints to employer alleging deficiencies by contractor in city construction project and extortion attempts by community group).
In Bernheim, the district court dismissed a First Amendment retaliation claim by a public school teacher who alleged that the school's principal retaliated against her for protesting the principal's decision not to send her to speak at a teacher's convention and for publicly accusing the principal of misrepresenting student test scores. The U.S. Court of Appeals for the Second Circuit reversed, finding that the plaintiff's statements regarding test scores were "issues of serious interest to the community" and therefore fell within the ambit of First Amendment protection. Bernheim, 79 F.3d at 325. The statements relating to the plaintiffs conditions of employment and the principal's rejection of the plaintiff as a speaker at the convention "concern[ed] a dispute between an employer and an employee" and therefore did not "rise to the level of a constitutional tort." Id. at 324.
Rivera contends that her notice of claim and her attorney's objections to District Nine's investigation of her alleged misconduct are protected by her First Amendment right of petition. These communications, however, refer only to Rivera's personal employment situation and not to systemic concerns with the district's practices or policies. By charging that District Nine's actions violated her constitutional rights, Rivera was attempting to protect her own career and reputation, not bring to light issues of general interest to the community. While it is certainly true that the statements made about Rivera in the Report implicated matters of great public concern, Rivera's own statements were of purely personal interest and as such do not state a First Amendment retaliation claim. See Bernheim, 79 F.3d. at 324; Grogan, 2000 WL 33115406 at *3.
Since Rivera's statements were not constitutionally protected, her First Amendment claims in both actions are dismissed.
B. Due Process Claims (01 Civ. 1976)
To prevail on her due process claims, Rivera must first establish that she has suffered a deprivation of a liberty or property interest protected by the Constitution. See Narumanchi v. Board of Trustees of Connecticut State Univ., 850 F.2d 70, 72 (2d Cir. 1988) (citing Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972)); Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). If such an interest is identified, she must then show that she was deprived of the interest without due process. Narumanchi, 850 F.2d at 72. "The second step of the analysis thus asks what process was due to the plaintiff and inquires whether that constitutional minimum was provided." Id.
In Rivera I, the Court dismissed Rivera's due process claims against District Nine and the Board of Education with prejudice, finding that she did not suffer a deprivation of her due process rights because as a probationary teacher she had no property interest in her position; and while she did have a liberty interest in her good name and reputation, Article 78 of the New York Civil Practice Law and Rules provided an adequate remedy. Rivera now seeks to assert these same claims against the City and the authors of the Report.
1. Property Interest
Contrary to the Court's determination in Rivera I, Rivera now alleges she had a property interest in her position as a probationary teacher because District Nine failed to follow proper procedures in denying her tenure, thus entitling her to tenure by estoppel. This claim must fail. There is no indication that Rivera raised the issue of her tenure status at any time prior to her termination, or even in her original suit against District Nine. Even assuming that Rivera had attained tenure by estoppel, District Nine's decision to terminate her pursuant to the procedures provided for probationary teachers — which to all appearances she was — did not violate her due process rights. See McDonald v. Board of Educ., No. 01 Civ. 1991, 2001 WL 840254, at *6 (S.D.N.Y. July 25, 2001) (noting that the "Constitution does not require the State to conduct a pre-termination hearing to determine the tenure status plaintiff failed to assert"). Rivera could have sought review of the procedures used to terminate her in an Article 78 proceeding. Id. Accordingly, the Court need not consider Rivera's claim that she was tenured by estoppel and her claim based on a deprivation of her property interest is dismissed.
2. Liberty Interest
Rivera's liberty interest claim also fails. "A government employee's liberty interest is implicated where the government dismisses him based on charges 'that might seriously damage his standing and associations in his community' or that might impose 'on him a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities.'" Brandt v. Board of Co-op. Educ. Servs., 820 F.2d 41, 43 (2d Cir. 1987) (citing Roth, 408 U.S. at 573). See also Goetz v. Windsor Cent. Sch. Dist., 698 F.2d 606, 610 (2d Cir. 1983); O'Neill v. City of Auburn. 23 F.3d 685, 692 (2d Cir. 1994).
"[W]hen the state fires an employee and publicly charges that she acted dishonestly or immorally, due process guarantees the employee an opportunity to defend her 'good name, reputation, honor and integrity.'" Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 630 (2d Cir. 1996) (citing Roth. 408 U.S. at 573). Thus, where a public employee is stigmatized in the course of a decision to terminate her employment, due process requires the State to provide a hearing, the purpose of which is "solely to provide the person an opportunity to clear [her] name." Codd v. Velger, 429 U.S. 624, 627 (1977). See also O'Neill. 23 F.3d at 692.
In Rivera I. the Court found that the allegations accusing Rivera of cheating and. attempting to assault another teacher implicated her liberty interest because they impugned her honesty and professional reputation. Rivera I, 145 F. Supp.2d at 307. The Court then determined that Rivera did not suffer a deprivation of her due process rights because she could have requested a name-clearing hearing through a proceeding pursuant to Article 78 of the New York C.P.L.R. Id. at 308. See also Baden v. Koch 799 F.2d 825, 830 (2d Cir. 1986) ("In order to succeed on his liberty interest claim, Baden must also prove that Koch improperly refused to grant him a post-removal opportunity to refute the false charges that led to his removal"); Federico v. Board of Educ., 955 F. Supp. 194, 202 (S.D.N.Y. 1997) (dismissing former teacher's due process claims arising from alleged defamatory remarks by school officials because of availability of Article 78 proceeding); Ludd v. Rockville Centre Union Free Sch. Dist., No. CV 89-2413, 1990 WL 31650, at *12 (E.D.N.Y. Mar. 9, 1990) (noting that "[r]equests for name-clearing hearings are . . . among those routinely entertained pursuant to Article 78"). Rivera advances no arguments that would dictate a different result against the defendants in 01 Civ. 1976.
Because the State provided Rivera with notice of the charges against her and an opportunity to clear her name through an Article 78 proceeding, her due process rights were not violated. The due process claim is therefore dismissed.
C. Defamation Claims (01 Civ. 1976)
As all of Rivera's federal constitutional claims have been dismissed, the Court exercises its discretion to decline to exercise jurisdiction over the remaining state claims. See 28 U.S.C. § 1367 (c)(3); Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994); Greicus v. Liz Claiborne. Inc. No. 00 Civ. 9518, 2002 WL 244598, at *4 (S.D.N.Y. Feb. 20, 2002); Federico, 955 F. Supp. at 203. Accordingly, Rivera's defamation claims in 01 Civ. 1976 are dismissed without prejudice.
III. CONCLUSION
Rivera's First Amendment claims in 00 Civ. 8208 and 01 Civ. 1976 are dismissed with prejudice because Rivera did not engage in constitutionally protected speech. Rivera's due process claims in 01 Civ. 1976 are dismissed with prejudice because the State provided her with adequate procedures to clear her name. The remaining state law claims in 01 Civ. 1976 are dismissed without prejudice.