Kelly v Huntington Union Free SD: Protected Speech and Speaking as a Citizen

 
KELLY v. HUNTINGTON UNION FREE SCHOOL DISTRICT NO. 09-CV-2101 (JFB)(MLO).
675 F.Supp.2d 283 (2009)
LINK
Anne KELLY and Christine Lofaro, Plaintiffs,
v.
HUNTINGTON UNION FREE SCHOOL DISTRICT and Huntington Union Free School District Board of Education, Defendants.

United States District Court, E.D. New York.
December 23, 2009.

Steven A. Morelli, Law Office of Steven A. Morelli, P.C., Carle Place, NY, for plaintiff.

Steven C. Stern and Mark A. Radi, Sokoloff Stern LLP, Westbury, NY, for defendants.


MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On May 15, 2009, plaintiffs Anne Kelly and Christine Lofaro (collectively "plaintiffs") brought this action against defendants Huntington Union Free School District and Huntington Union Free School District Board of Education (collectively "defendants") pursuant to 42 U.S.C. § 1983 ("Section 1983") alleging that defendants violated plaintiffs' rights under the First Amendment. Specifically, plaintiffs, who are elementary school teachers, allege that defendants retaliated against them for engaging in various forms of protected speech. Before the Court is defendants' motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is denied in its entirety.
I. BACKGROUND

For purposes of this motion to dismiss, the Court has taken the facts described below from the Amended Complaint ("Am. Compl."). These facts are not findings of fact by the Court but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiffs, the non-moving parties.
A. FACTS
1. THE AMENDED COMPLAINT

Plaintiffs are tenured and highly credentialed elementary school teachers, both of whom have received the highest rankings in their evaluations. (Am. Compl. ¶¶ 8-9, 12-13.) Plaintiff Anne Kelly has been an elementary school teacher for about 30 years. (Id. ¶ 8.) Prior to the events that are the subject of this complaint, Kelly had never had any problems with the administration and never received a complaint from a parent. (Id. ¶ 11.) Plaintiff Christine Lofaro has been an elementary school teacher for 17 years. (Id. ¶ 8.) Lofaro is also Vice President of the Associated Teachers of Huntington, Intermediate Level (hereinafter "the Union"), a position she has held for about six years. (Id. ¶ 12.) As Vice President of the Union, Lofaro, inter alia, attends various meetings and classes, takes part in the negotiation process between the Union and the administration, and assists fellow teachers in resolving grievances with the administration. (Id. ¶ 14.)

In or about 1990, Kelly began teaching a gifted and talented program called the Scholastic Enrichment and Resource for Children in Huntington (hereinafter "SEARCH"). (Id. ¶ 17.) Lofaro began teaching for the SEARCH program in or about 1996. (Id.) In 2004, plaintiffs obtained special teaching certifications that were required to continue teaching in the SEARCH program. (Id. ¶¶ 18, 22.) The goal of the SEARCH program, which began in 1980 (id. ¶ 19), is to provide small group instruction to students who are in the top ten percent of their grade's population and to provide a challenging and stimulating curriculum different from that of normal classrooms. (Id. ¶ 20.) At the time in question, there were 2.5 SEARCH teachers, including Kelly and Lofaro, and one Chairperson of the SEARCH program, Maryann Daly (hereinafter "Daly").
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(Id. ¶ 22.) Plaintiffs allege that they developed and enhanced the program "all on their own" and that the program's success "can only be attributed to Kelly and Lofaro's hard work." (Id. ¶¶ 23-24.) Plaintiffs have gotten nothing but positive feedback from their students' parents. (Id. ¶ 25.)

In or about August 2007, Lofaro applied for the position of Chairperson of the SEARCH program. (Id. ¶ 26.) After the interview, the Assistant Superintendent of personnel told Lofaro that her "edge" had come out in the interview. (Id. ¶ 27.)

Plaintiffs allege that throughout the time in which Daly was a teacher and then Chairperson of the SEARCH program, Daly engaged in inappropriate conduct that was detrimental to the SEARCH program and that was sometimes unethical. (Id. ¶¶ 28-29.) Specifically, plaintiffs allege that Daly: did not attend meetings to discuss the curriculum; authorized a mass mailing to the parents of SEARCH students to support a Board of Education candidate; prohibited plaintiffs from attending a class trip on a boat (resulting in Daly chaperoning 56 students by herself); and tutored students prior to their taking a test for entrance into the SEARCH/Math Olympiad Program. (Id. ¶ 30.)

In or about August 2007, plaintiffs met with the Assistant Superintendent to discuss Daly's alleged misconduct and its negative impact on the SEARCH program. (Id. ¶ 31.) The Assistant Superintendent did not offer guidance or address the issue and instead stated that he wished plaintiffs would "learn to play nice in the sandbox." (Id. ¶ 32.)

After the August 2007 meeting, Daly continued to engage in alleged misconduct. Specifically, Daly provided no guidance to plaintiffs about the second grade program and did not attend meetings that she had scheduled, forcing plaintiffs to write the curriculum by themselves. (Id. ¶ 33.) This conduct continued over the next two years. (Id.) Plaintiffs continued to complain to defendants about Daly's alleged misconduct and its negative impact on the SEARCH program and its students. (Id. ¶ 34.) Defendants refused to answer plaintiffs' complaints. (Id.)

On February 26, 2009, plaintiffs were summoned to a meeting with the Assistant Superintendent of Curriculum, Barbara Lacey. (Id. ¶ 36.) Lacey informed each plaintiff separately that two of the 2.5 SEARCH teacher positions were going to be eliminated in the draft budget for the 2009-10 school year. (Id. ¶ 37.) Lofaro attempted to ask questions regarding this information, but Lacey did not answer, saying only that it was defendants' decision to eliminate the two SEARCH positions. (Id. ¶ 38.) Plaintiffs were "shocked and distraught" upon hearing this information. (Id. ¶¶ 39-41.) Plaintiffs were not told at any time that they could not reveal the information regarding the elimination of the two SEARCH positions or that the information was confidential. (Id. ¶ 44.)

At dismissal time on February 26, 2009, Kelly informed her students that the SEARCH program was being changed and that two SEARCH positions were being eliminated. (Id. ¶¶ 42, 45.) Kelly also told the students to tell their parents about this issue and to ask their parents to attend the next Board of Education meeting to speak out against the changes to the SEARCH program. (Id.) Plaintiffs then went to the Woodhull Intermediate School, where Lofaro informed her students that there would be a significant change in the SEARCH program for the next year, and that plaintiffs' SEARCH positions were being eliminated. (Id.¶ 43.) Lofaro also told the students that she was very upset about this change to the program, and that it was important for the students' parents to know about the fate of the program. (Id.) Plaintiffs believed that it was important to tell the students about the changes
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to the SEARCH program because it "directly affected their education" and believed that it was important to tell the students' parents "so they could voice their opposition to the Board and be informed about the future of their own child's education." (Id. ¶¶ 51-52.)

On March 3, 2009, Lofaro was summoned to the principal's office, where she was questioned by Dr. Ken Card about what she had told her students on February 26. (Id. ¶ 45.) After hearing Lofaro's explanation, Card responded that the administration was "furious" and that Lofaro had "crossed the line." (Id. ¶ 46.) Card also stated that the administration and the Board of Education were viewing Lofaro's actions as "political." (Id.) Lofaro stated that her actions were not political but rather that she was upset about the changes to the SEARCH program and that it was important to inform her students and the students' parents. (Id.) Card said that there were numerous telephone calls from angry parents, that Lofaro would face some sort of discipline for her actions, and that the administration and the Board were going to "make an example" of her. (Id. ¶ 47.)

On March 4, 2009, Mary Stokkers, principal of Jack Abrams Intermediate met with Kelly, questioned her about her actions on February 26, and repeated everything that had been said to Lofaro. (Id. ¶ 48.) At this meeting, Kelly was informed for the first time that she should not have disclosed the information regarding the elimination of the two SEARCH positions to her students. (Id. ¶ 48.)

At some point after February 26, plaintiffs were threatened with "3020a proceedings." (Id. ¶ 49.) Plaintiffs were told that they could avoid such disciplinary proceedings if they agreed to pay a monetary fine, transfer to different positions, and forfeit their rights to grieve such a transfer despite their rights under the collective bargaining agreement. (Id.) Plaintiffs declined the offer. (Id. ¶ 50.)

At some point after February 26, parents of students in the SEARCH program attended the next Board meeting and were vocal about the changes to the SEARCH program. (Id. ¶ 56.) While the program was restored (id.), plaintiffs were still removed from their positions. (Id. ¶ 57.)

At some point after February 26, plaintiffs informed defendants that they had retained counsel and intended to commence legal proceedings if a resolution could not be reached. (Id. ¶ 58.) Defendants subsequently brought 3020-a disciplinary charges against plaintiffs for "behavior unbecoming a teacher, neglect of duty, and insubordination." (Id. ¶ 58.) Plaintiffs allege that these proceedings were brought in retaliation for their complaints about Daly and for their February 26 speech to students, their statements about obtaining counsel and commencing legal proceedings, and for Lofaro's "engaging in protected union activities." (Id.¶¶ 34, 58.) Plaintiffs allege that they have suffered damages as a result of defendants' actions. (Id. ¶ 59.)
2. DEFENDANTS' AFFIDAVITS

In connection with their motion to dismiss, defendants submitted several affidavits from teachers who describe some of the circumstances of plaintiffs' February 26 speech to students about the SEARCH program.1
B. PROCEDURAL HISTORY

Plaintiffs filed the complaint in this action on May 15, 2009. Plaintiffs filed an amended complaint on July 17, 2009. On September 18, 2009, defendants filed the instant motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs submitted a memorandum
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in opposition on November 2, 2009. Defendants replied on December 3, 2009. Oral argument was held on December 18, 2009. This matter is fully submitted.

II. STANDARD OF REVIEW

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). The plaintiff must satisfy "a flexible `plausibility standard.'" Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, ___ U.S. ___,129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly,550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955.

The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. See 129 S.Ct. at 1937. The Court instructed district courts to first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (quoting and citing Twombly,550 U.S. at 556-57, 127 S.Ct. 1955).
III. DISCUSSION

As an initial matter, the Court cannot consider defendants' evidentiary submissions in deciding the instant motion to dismiss. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (In deciding a motion to dismiss, "the district court is normally required to look only to the allegations on the face of the complaint."). Defendants' affidavits are not referred to in the Amended Complaint nor are they integral to the Amended Complaint. See id.; Coggins v. County of Nassau, No. 07-cv-3624, 2008 WL 2522501, at *6-7 (E.D.N.Y. June 20, 2008). The Court also declines to convert the instant motion into a motion for summary judgment. "Federal courts have `complete discretion to determine whether or not to accept the submission of any material beyond the pleadings' offered in conjunction with a Rule 12(b)(6) motion, and thus complete discretion in determining whether to convert the motion to one for summary judgment." Carione v. United States, 368 F.Supp.2d 186, 191 (E.D.N.Y.2005) (citations omitted). Plaintiffs in this action are entitled to discovery before having to oppose a motion for summary judgment.

Plaintiffs bring their First Amendment retaliation claims pursuant to Section 1983.2 Section 1983 "is not itself a source of substantive rights, but a method for
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vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). For claims under Section 1983, a plaintiff must prove that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999) (citation omitted).

Here, for the purposes of this motion, the parties do not dispute that defendants were acting under color of state law. The question presented, therefore, is whether defendants' conduct deprived plaintiffs of the rights they assert under the First Amendment. Specifically, plaintiffs claim that they were retaliated against for: (1) their complaints to defendants regarding alleged misconduct by Daly; (2) their February 26 speech to students regarding changes to the SEARCH program; and (3) their statement that they had retained counsel and intended to commence legal proceedings. Lofaro also alleges that defendants retaliated against her for engaging in protected union activities.

The Second Circuit has "described the elements of a First Amendment retaliation claim in several ways, depending on the factual context." Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). Where, as here, public employees bring retaliation claims based on the First Amendment, the plaintiffs must prove that: "(1) they engaged in constitutionally protected speech because they spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action; and (3) the speech was a `motivating factor' in the adverse employment decision." Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir.2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir.2008). However, defendants may still "escape liability if they can demonstrate that either (1) the defendant would have taken the same adverse action against the plaintiff regardless of the plaintiff's speech; or (2) the plaintiff's expression was likely to disrupt the government's activities and that the harm caused by the disruption outweighs the value of the plaintiff's expression." Skehan, 465 F.3d at 106. The latter is known as the "Pickering balancing test" and is a question of law for the Court. See Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2004) (referring to Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Even if the government prevails on the Pickering test, plaintiff may still succeed by showing that the adverse action was in fact motivated by retaliation and not by any fear of a resultant disruption. See Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir.2006).

Defendants contend that plaintiffs have failed to state a claim because: (1) they did not speak as citizens on matters of public concern; (2) they did not face adverse employment action; and (3) there is no causal connection between their complaints about Daly and any alleged adverse action.3 Defendants also argue under Pickering,
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with respect to plaintiffs' February 26 speech to students, that even if plaintiffs did speak as citizens on matters of public concern, defendants' interest in regulating the speech outweighs plaintiffs' interests in the speech. For the reasons set forth below, defendants' motion to dismiss is denied in its entirety.

A. SPEECH AS A CITIZEN
1. LEGAL STANDARD

As the Second Circuit recently emphasized, "[i]t is established law in this Circuit that, `[r]egardless of the factual context, we have required a plaintiff alleging retaliation to establish speech protected by the First Amendment.'" Sousa v. Roque, 578 F.3d 164, 169-70 (2d Cir.2009) (quoting Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008)). More specifically, "[t]o determine whether or not a plaintiff's speech is protected, a court must begin by asking `whether the employee spoke as a citizen on a matter of public concern.'" Sousa, 578 F.3d at 170 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). It is critical to note that this test contains two separate requirements — namely, (1) that the employee speak as a citizen, and (2) that the employee speak on a matter of public concern. If either of these requirements is not met, then plaintiff's First Amendment retaliation claim must fail as a matter of law. See Sousa, 578 F.3d at 170 ("If the court determines that the plaintiff either did not speak as a citizen or did not speak on a matter of public concern, `the employee has no First Amendment cause of action based on his or her employer's reaction to the speech.'" (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951)).

In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the United States Supreme Court clarified the threshold inquiry for a First Amendment retaliation claim in the public employment context. To determine whether the speech at issue is constitutionally protected, the court must first decide whether the plaintiff was speaking as a "citizen," rather than as a public employee. Id. at 421, 126 S.Ct. 1951. "If the answer is `no,' then no First Amendment claim arises, and that ends the matter." Caraccilo v. Village of Seneca Falls, N.Y., 582 F.Supp.2d 390, 405 (W.D.N.Y.2008). In Garcetti, the Supreme Court explained that:[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

547 U.S. at 421-22, 126 S.Ct. 1951.

Garcetti, however, did not "articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate." 547 U.S. at 424, 126 S.Ct. 1951. Although the Supreme Court did not set forth specific criteria for determining when speech is made pursuant to an employee's officials duties, it instructed that the inquiry "is a
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practical one" because "the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951. It also noted that speech by a public employee retains some possibility of First Amendment protection when it "is the kind of activity engaged in by citizens who do not work for the government." Id. at 423, 126 S.Ct. 1951 (emphasis added). To illustrate its point by way of comparison, Garcetti "also list[ed] examples of prototypical protected speech by public employees, namely `mak[ing] a public statement, discuss[ing] politics with a coworker, writ[ing] a letter to newspapers or legislators, or otherwise speak[ing] as a citizen.'" Davis v. McKinney, 518 F.3d 304, 311-12 (5th Cir.2008) (quoting Spiegla v. Hull, 481 F.3d 961, 967 (7th Cir.2007)).

Since Garcetti, some lower courts have developed more guidelines for determining whether speech is made pursuant to a public employee's official duties. Although none of the following factors is dispositive, the Court may consider: the plaintiff's job description; the persons to whom the speech was directed; and whether the speech resulted from special knowledge gained through the plaintiff's employment. See Caraccilo, 582 F.Supp.2d at 405. As indicated by Garcetti, two relevant factors that, considered in isolation, are not dispositive are whether the speech occurs in the workplace and whether the speech concerns the subject matter of the employee's job. See 547 U.S. at 420-21, 126 S.Ct. 1951; accord Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir.2009). Again, in general, "[a]lthough there is no simple checklist or formula by which to determine whether the employee was speaking as a private citizen or as a public employee . . . `the cases distinguish between speech that is the kind of activity engaged in by citizens who do not work for the government and activities undertaken in the course of performing one's job.'" Caraccilo, 582 F.Supp.2d at 410 (quoting Davis, 518 F.3d at 312-13) (additional quotation marks and citation omitted).

Again, the Court recognizes that none of the aforementioned factors, including the motivation by the plaintiff in engaging in the speech, is dispositive. See, e.g., Caraccilo, 582 F.Supp.2d at 412 ("[T]he fact that plaintiff's speech to these officials may have related in some way to her job is not dispositive of whether it was made pursuant to her job duties or that it was unprotected[.]") (emphasis in original); Davis, 518 F.3d at 313 n. 3 ("We recognize that it is not dispositive that a public employee's statements are made internally.").

2. APPLICATION

Defendants argue that when plaintiffs complained about Daly's alleged misconduct, they did so not as citizens, but rather pursuant to their official duties.4
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Therefore, defendants argue that the speech is not protected as a matter of law. However, the Court cannot conclude at this stage of the proceedings that plaintiffs' speech about Daly was made pursuant to official duty. Plaintiffs allege that they "had a meeting with the Assistant Superintendent" to discuss Daly's alleged misconduct, as discussed above. (Am. Compl. ¶ 31.) When the alleged misconduct continued, plaintiffs "continued to complain to Defendants." (Id. ¶ 34.) Based solely on the allegations in the Amended Complaint, and drawing all reasonable inferences in the light most favorable to plaintiffs, the Court cannot rule as a matter of law that plaintiffs' speech about Daly was made pursuant to plaintiffs' official duties.5 The inquiry under Garcetti is "a practical one," 547 U.S. at 424-25, 126 S.Ct. 1951, and requires consideration of various facts that are not before the Court on this motion to dismiss. For instance, there is no allegation in the Amended Complaint with respect to plaintiffs' job descriptions or the specific circumstances of plaintiffs' complaints. The fact that plaintiffs' speech related to their jobs is not dispositive. See Garcetti,547 U.S. at 421, 126 S.Ct. 1951 ("The [speech] concerned the subject matter of [plaintiff's] employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker's job." (citing Pickering, 391 U.S. at 573, 88 S.Ct. 1731)). To hold that plaintiffs' discussion with the Assistant Superintendent and continued complaints were pursuant to official duty, without any further detail, would be to hold that any complaints to a supervisor regarding alleged misconduct by a co-worker would be unprotected. The Court rejects this broad proposition. See, e.g., Sassone v. Quartararo, 598 F.Supp.2d 459, 465 (S.D.N.Y.2009) (denying motion to dismiss and finding that plaintiff teachers' complaints to supervisors about other teachers' misconduct could be speech made "as citizens"); see also McLaughlin v. Pezzolla, No. 06-CV-0376, 2007 WL 676674, at *8 (N.D.N.Y. Feb. 28, 2007) (denying motion to dismiss and holding that "the determination of the scope of Plaintiff's official duties, and whether her speech was made pursuant to, or outside of, these duties, must await a different day").

B. MATTER OF PUBLIC CONCERN

"The Supreme Court has defined `a matter of public concern' as one that `relat[es] to any matter of political, social, or other concern to the community.'" Sousa v. Roque, 578 F.3d 164, 170 (2d Cir.2009) (quotingConnick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). "The inquiry into the protected status of speech is one of law, not fact." Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684. The Second Circuit has held that "[a]n employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking upon matters only of personal interest. We make clear today, however, that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern." Sousa, 578 F.3d at 174 (citation and quotation marks omitted). In Sousa,the Second Circuit reiterated that "a speaker's motive is not dispositive in determining whether his or her speech addresses a matter of public
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concern." Sousa, 578 F.3d at 173. Instead, "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684.
Defendants argue that none of plaintiffs' speech addressed matters of public concern. The Court disagrees. With respect to plaintiffs' complaints about Daly, plaintiffs allege that they complained to defendants that Daly, inter alia, improperly authorized a mass mailing to support a Board of Education candidate, endangered students' safety by preventing plaintiffs from chaperoning a field trip on a boat, and improperly tutored students prior to their taking an exam. (Am. Compl. ¶ 30.) Although defendants argue that these are nothing more than job-related complaints by disgruntled employees, the Court cannot conclude at this stage that the speech does not address matters of public concern. To the extent the mass mailing in support of a Board candidate was an improper political activity, it can reasonably be considered a matter of public concern. See Connick, 461 U.S. at 149, 103 S.Ct. 1684 (holding that plaintiff's speech about whether government employees were pressured to participate in political campaign touched on a matter of public concern). Similarly, plaintiffs' speech regarding Daly's alleged misconduct in tutoring students touches on the quality of public education, which is also a matter of public concern. See Bernheim v. Litt,79 F.3d 318, 325 (2d Cir.1996) (reversing district court's granting of motion to dismiss where plaintiff teacher complained about principal's misrepresentation of students' test scores and its effect on "the quality of education provided by the public school"); Fierro v. City of New York, 591 F.Supp.2d 431, 443 (S.D.N.Y.2008) ("The conduct and character of teachers and principals at a public school . . . reasonably qualifies as a matter that concerns the community."), rev'd on other grounds by Fierro v. City of New York,341 Fed.Appx. 696 (2d Cir. 2009). Therefore, the Court cannot conclude at this stage of the proceedings that plaintiffs' complaints regarding Daly did not address matters of public concern. See Rehman v. State Univ. of N.Y. at Stony Brook, 596 F.Supp.2d 643, 656 (E.D.N.Y.2009) ("The Court finds that the plaintiff's complaints to . . . the President of SUNY Stony Brook, and others regarding billing practices, safety concerns, and credentialing of department members . . . were related to matters of public welfare, rather than merely to his own grievances, and are sufficient to survive the present motion to dismiss.").

Defendants also argue that plaintiffs' February 26 speech to students about the SEARCH program did not address a matter of public concern. However, plaintiffs allege that Kelly told the students to "ask their parents to attend the next Board of Education . . . meeting to speak out against changes to the SEARCH program." (Am. Compl. ¶ 42.) Plaintiffs allege that Lofaro told students about "a significant change" to the SEARCH program (id. ¶ 43) and that "she thought it was important for their parents [to] know about the fate of the program." (Id.) Taking plaintiffs' allegations as true, therefore, the speech related to important changes to a gifted education program and encouraged students' parents to participate in the next Board of Education meeting. Speech about the quality of an educational program can be a matter of public concern.See McGuire v. Warren, 207 Fed.Appx. 34, 36 (2d Cir.2006) (holding that speech by a teacher about the proper method for providing educational services to special needs children "might well be a matter of public interest") (collecting cases). In addition, as a general matter, speech that advocates for parental participation
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in school government addresses a matter of public concern. See, e.g., Hurdle v. Bd. of Educ. of City of N.Y., No. 01 Civ. 4703, 2002 WL 31834454, at *2 (S.D.N.Y. Dec. 16, 2002) ("[T]he lack of input [regarding a plan to address student performance] from the school staff and community, including parents of school children [at the school], into the formulation of the [plan] relates to matters of public concern." (citingPickering, 391 U.S. at 574, 88 S.Ct. 1731)); see also Milliken v. Bradley, 418 U.S. 717, 742, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ("[L]ocal control over the educational process affords citizens an opportunity to participate in decision-making, permits the structuring of school programs to fit local needs and encourages `experimentation, innovation, and a healthy competition for educational excellence.'" (quotingSan Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973))).

Defendants argue, in response, that plaintiffs' February 26 speech did not implicate a matter of public concern because the speech "related to the change in their own teaching assignments at the school."6(Defendants' Mem. of Law in Support of Motion to Dismiss (hereinafter "Defs.' Br.") at 10.) The Court rejects this argument. As discussed above, neither a plaintiff's motive for the speech nor the fact that a plaintiff's speech relates to his job is dispositive in determining whether the speech addresses a matter of public concern. See Pickering, 391 U.S. at 572, 88 S.Ct. 1731 ("Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal."); Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 166 (2d Cir.2006) ("We do not doubt that [plaintiff] spoke partly to protect his job and shift blame to other administrators. But personal interests frequently induce speech that is nonetheless of public concern."). Defendants also argue that the proposed changes to the SEARCH program were not significant or a matter of public concern and that plaintiffs' assertions to the contrary are based on plaintiffs' "conclusory opinions" about plaintiffs' role in the program. (Defs.' Br. at 10 n. 3.) Plaintiffs allege that two of the 2.5 SEARCH positions were being eliminated and that plaintiffs' own work was critical to the program. (Am. Compl. ¶¶ 23, 37.) The Court cannot resolve this factual issue on a motion to dismiss. Therefore, the Court concludes that plaintiffs have adequately alleged that their speech addressed matters of public concern.7
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C. ADVERSE ACTION

"In the context of a First Amendment retaliation claim . . . retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action." Zelnick v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006) (internal quotation omitted). "Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999). However, "lesser actions may also be considered adverse employment actions." Id.; see also Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) ("Our precedent allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass." (citing Bernheim, 79 F.3d at 325)). Indeed, in the education context, "[a]dverse employment actions may include negative evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class preparation periods, failure to process teacher's insurance forms, transfer from library to classroom teaching as an alleged demotion, and assignment to classroom on fifth floor which aggravated teacher's physical disabilities."Zelnik, 464 F.3d at 226 (quoting Morris, 196 F.3d at 110).

Plaintiffs in this case have adequately alleged that they faced adverse employment action. After the August 2007 meeting with the Assistant Superintendent, plaintiffs allege that they "were forced to write the curriculum completely by themselves." (Am. Compl. ¶ 33.) On February 26, 2009, plaintiffs were told that their teaching positions with the SEARCH program were being eliminated. (Id. ¶¶ 36-38.) After their speech to students, plaintiffs were threatened with disciplinary proceedings.8 (Id. ¶ 49.) Plaintiffs were eventually removed from their SEARCH positions (id. ¶ 57) and disciplinary proceedings were commenced against them. (Id. ¶ 58.) Although defendants argue that these allegations only relate to minor incidents and not adverse actions, the Court disagrees. For instance, a change in teaching responsibilities can constitute an adverse action if it is "materially less prestigious, materially less suited to [a plaintiff's] skills and expertise, or materially less conducive to career advancement." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir.2000) (collecting cases). In addition, "the institution of disciplinary proceedings is sufficient in this circuit to constitute an adverse employment decision." Skehan, 465 F.3d at 106 (citing Burkybile v. Bd. of Educ., 411 F.3d 306, 313-14 (2d Cir.2005)). Accordingly, plaintiffs have adequately alleged an adverse action.

D. CAUSAL CONNECTION

Plaintiffs must also demonstrate a "`causal connection . . . sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action.'" Cotarelo
[675 F.Supp.2d 297]
v. Sleepy Hollow Police Dep't, 460 F.3d 247, 251 (2d Cir.2006) (quoting Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994)). A plaintiff can demonstrate this causal connection "indirectly `by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.'" Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2003) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999)). Of course, the Court recognizes that the Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action," Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir.2001), and courts must carefully consider the time lapse in light of the entire record. See, e.g., Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir.1980) (holding eight-month gap between EEOC complaint and retaliatory action suggested a causal relationship); see also Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 446-47 (2d Cir.1999) (holding abusive acts within one month of receipt of deposition notices may be retaliation for initiation of lawsuit more than one year earlier), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
Plaintiffs in this action have adequately alleged a causal connection between their speech and the alleged adverse actions. Plaintiffs clearly have alleged evidence of retaliatory animus against them for their February 26 speech to students regarding the SEARCH program,9 and defendants do not argue this point. Instead, defendants argue that plaintiffs have failed to allege a causal connection between the alleged adverse actions and plaintiffs' complaints about Daly.

Plaintiffs first complained about Daly in August 2007. (Am. Compl. ¶ 31.) When plaintiffs made this complaint, they were told by the Assistant Superintendent to "learn to play nice in the sandbox."10 (Id. ¶ 32.) Plaintiffs allege that, thereafter, Daly's misconduct grew worse, forcing them "to write the [second grade] curriculum completely by themselves." (Id. ¶ 33.) Plaintiffs do not specifically allege any other adverse action until February 2009, when they were informed that their SEARCH positions were being eliminated. (Id. ¶¶ 36-38.) Defendants argue that the length of this time period between plaintiffs' August 2007 complaints about Daly and the February 26, 2009 meeting in which plaintiffs were told that their SEARCH positions were being eliminated defeats a causal connection as a matter of law. The Court disagrees. First, plaintiffs allege not only that they complained about Daly in August 2007 but also that they "continued to complain to Defendants about Daly's misconduct." (Id. ¶ 34.) In addition, plaintiffs argue that Daly's misconduct, which forced them to do additional work, was itself retaliatory. Given the allegations regarding plaintiffs' continued complaints, defendants' reaction to those complaints, and Daly's forcing plaintiffs to do more work, the Court concludes that plaintiffs have adequately alleged a causal connection between their complaints and the alleged adverse actions. See Shanks v. Vill. of Catskill Bd. of Trs., 653 F.Supp.2d 158,
[675 F.Supp.2d 298]
168 (N.D.N.Y.2009) ("[T]he court rejects defendants' contention that the length of time between [plaintiff's] January 2006 complaint and the December 2008 termination breaks the potential causal connection between the protected speech and the discharge. Despite the delay between [plaintiff's] complaint and his termination, there is abundant evidence that defendant's harassing and threatening conduct continued unabated throughout this period and was related to the . . . complaints." (citing Mandell v. County of Suffolk, 316 F.3d 368, 384 (2d Cir.2003))).
E. PICKERING BALANCING TEST11

Defendants also argue that, even if plaintiffs have adequately alleged that their February 26 speech to students was protected, their claims must be dismissed under the Pickering balancing test.12 UnderPickering, if plaintiffs' otherwise protected speech disrupts the government's activities such that the harm caused by the disruption outweighs the value of plaintiffs' speech, the government can regulate that speech.See Skehan, 465 F.3d at 106; Cobb, 363 F.3d at 101. Defendants argue that their interest in regulating teachers' speech to students during class time about personnel decisions outweighs any of plaintiffs' interests in the speech. The analysis under Pickering, however, is a "fact-sensitive" inquiry. Bd. of County Comm'rs, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 677, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). In this case, there is a factual dispute surrounding the circumstances of plaintiffs' February 26 speech to students. Plaintiffs allege that the speech was at "dismissal time" (Am. Compl. ¶ 42) and defendants have submitted affidavits to contest this allegation. Given this factual dispute, the Court cannot determine whether plaintiffs' speech was disruptive or whether the harm caused by the disruption outweighed plaintiffs' interest in the speech. See Sassone, 598 F.Supp.2d at 468 ("The Court does not see how [defendant] could make such a showing [under Pickering], considering that the Court is limited to consideration of the Amended Complaint."). Furthermore, even if defendants did prevail under the Pickeringtest, plaintiffs could still proceed if they showed that defendants were motivated by retaliation and not by any disruption caused by the speech. See Reuland, 460 F.3d at 415. The factual question of defendants' motivation is also inappropriate at this time. See Sheppard v. Beerman, 18 F.3d 147, 151 (2d Cir.1994) ("[T]he motive behind [plaintiff's] firing in his retaliation claim is clearly a question of fact. Because this question is in dispute, it was improper for the district court to answer it on a motion for dismissal on the pleadings." (citation omitted)).

In sum, given the allegations in the Amended Complaint, plaintiffs have alleged a plausible First Amendment Section 1983 claim that survives a motion to dismiss.
IV. CONCLUSION

For the reasons set forth above, defendants' motion to dismiss the Amended Complaint is denied in its entirety. The
[675 F.Supp.2d 299]
case will proceed with discovery under the direction of Magistrate Judge Orenstein.

SO ORDERED.

FOOTNOTES
1. For the reasons discussed infra, the Court declines to consider this evidence.
2. In the Amended Complaint, plaintiffs also make passing reference to defendants' alleged conduct violating "all related provisions" of the New York Constitution. (Am. Compl. ¶ 61.) In their Memorandum of Law in Opposition to Defendants' Motion to Dismiss (hereinafter "Pls.' Br."), plaintiffs refer to the Fifth and Fourteenth Amendments as well as New York State Executive Law § 290 et seq., and Title 8 of the New York City Administrative Code. (Pls.' Br. at 2.) At oral argument, however, plaintiffs' counsel clarified that they only allege claims under the First Amendment pursuant to Section 1983.
3. Defendants also argue that plaintiff Lofaro has failed to allege First Amendment retaliation based on her union activities. Specifically, defendants argue that plaintiffs have not specified the union activities upon which any such retaliation was based nor have plaintiffs alleged a causal connection between those activities and any adverse action. Because the Court concludes that plaintiffs have properly alleged First Amendment retaliation based on their other speech, the Court need not address this argument at the motion to dismiss stage. See Morey v. Somers Central Sch. Dist., No. 06 Civ. 1877, 2007 WL 867203, at *12 (S.D.N.Y. Mar. 21, 2007) (denying motion to dismiss) ("[B]ecause plaintiff sufficiently pleaded a causal connection with regard to his statements concerning the asbestos, he has established a prima facie case for First Amendment retaliation, and we need not address this [union activity] issue any further.").
4. Defendants do not argue that plaintiffs' February 26 speech to students about the SEARCH program was made pursuant to their official duties, and so the Court need not address this issue. The Court notes that "[i]t is an open question in this Circuit whether Garcetti applies to classroom instruction." Panse v. Eastwood, 303 Fed.Appx. 933, 934 (2d Cir.2008) (summary order). In any event, plaintiffs allege that when speaking to the students, "Kelly and Lofaro were not speaking pursuant to their duties" (Am. Compl. ¶ 54), and that Kelly spoke to her students not during class time but at "dismissal time" (id. ¶ 42). Accordingly, given these allegations, the Court cannot decide whether plaintiffs spoke as citizens or pursuant to official duty at the motion to dismiss stage. See McLaughlin v. Pezzolla, No. 06-CV-0376, 2007 WL 676674, at *8 (N.D.N.Y. Feb. 28, 2007) (denying motion to dismiss on issue of plaintiffs' official duty).
5. Although defendants cite Weintraub v. Board of Education of the City of New York, 489 F.Supp.2d 209(E.D.N.Y.2007) in support of their argument that the Court should conclude that plaintiffs spoke pursuant to their official duties, Weintraub involved a motion for summary judgment. See id. at 211. In the instant case, the Court has no factual record to consider and, based solely on the Amended Complaint, the Court cannot conclude that plaintiffs spoke pursuant to official duty.
6. Defendants also make the somewhat confusing argument that plaintiffs cannot claim that the changes to the SEARCH program addressed a matter of public concern because plaintiffs also allege that the changes to the program were made in retaliation for their complaints about Daly. (Defendants' Reply Mem. of Law (hereinafter "Defs.' Reply Br.") at 8.) Defendants' alleged motivation for the changes to the SEARCH program, however, is not dispositive on the question of whether those changes were themselves a matter of public concern.
7. Defendants argue that plaintiffs' statements about their having retained legal counsel and their intent to commence legal proceedings did not address matters of public concern because the underlying speech did not address matters of public concern. (Defs.' Br. at 15-16 n. 5.) For the reasons discussed above, plaintiffs have adequately alleged that their speech addressed matters of public concern, and so the Court rejects this argument. See Scott v. Goodman, 961 F.Supp. 424, 436-37 (E.D.N.Y.1997) (adopting Magistrate Judge's Report and Recommendation holding that adverse action in response to the threatened filing of a civil rights lawsuit can serve as the basis of a retaliation claim). Although defendants argue that plaintiffs only allege that they told defendants that they had obtained legal counsel and not that they intended to file a lawsuit, the Court disagrees. (See Am. Compl. ¶ 58.) In any event, the Court rejects defendants' argument that the mere retention of counsel is never protected by the First Amendment. See Eng v. Cooley, 552 F.3d 1062, 1069 (9th Cir.2009) (collecting cases) (There is a "long-recognized First Amendment right to hire and consult an attorney.").
8. Although defendants argue that the mere threat of disciplinary proceedings is not an adverse action, the Court disagrees. See Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir.2004) ("[T]he threat of administrative disciplinary proceedings . . . could have a deterrent effect. . . ."). In any event, as discussed above, disciplinary proceedings were allegedly brought against both plaintiffs.
9. For instance, following the speech to students, Lofaro was told that "she would face some sort of discipline for her actions, and that the Administration and the Board were going to make an example of her." (Am. Compl. ¶ 47.)
10. Lofaro was also told by the Assistant Superintendent of personnel in August 2007 that her "edge" had come out in an August 2007 interview. (Am. Compl. ¶ 27.)
11. Plaintiffs argue in their brief that, at the time of trial, Pickering is not the appropriate standard because plaintiffs argue that they have alleged a prior restraint on their speech. Because the Court rejects defendants' Pickering argument at this stage, the Court need not address this additional argument by plaintiffs.
12. Defendants do not specifically argue that Pickering warrants dismissal of the First Amendment claims as to plaintiffs' other speech. In any event, the allegations regarding the other speech are sufficient to survive a motion to dismiss on that ground.

Anthony B. Aldorasi Wants His Legacy Fixed

Former Principal of I.S. 141, Anthony B. Aldorasi, holds a copy of the plaque that was removed from the NASA science lab he founded, . Photo Jason D. Antos

  Former Principal Wants Plaque Restored

LINK

A former principal of I.S. 141 in Astoria wants his name restored to the science lab that he helped create.

In February, 2002, after many years of outrage and complaints made by parents and teachers concerning the conditions inside I.S. 141, Astoria native Anthony Aldorasi was appointed principal of the fledgling school and quickly turned it around, making it a positive place for students and faculty.

Quickly after his appointment, Aldorasi was responsible for an increase inmath and reading scores. In 2005, I.S. 141 became a NASA Space Exploratory school (the only school in New York City) and received several visits from real life astronauts. The school’s teachers, students and administrators received a wealth of resources from the government due to Aldorasi’s grant writing abilities.

Because of his accomplishments, Aldorasi received many awards and even had the new state of the art science lab named in his honor. Local politicians and even the borough president attended the ceremony. The PTA raised funds for the plaque that was installed at the dedication on which his name and the following message are inscribed, “For your vision and love for our school, we dedicate our new science lab to you. From the faculty, parents and students.”

In 2007, however, this all changed for Anthony Benjamin Aldorasi, when he was suddenly removed from office.

On that fateful day, just before the President’s week break, he received a phone call from the Queens headquarters of the Department of Education and was told to report there as soon as possible. He left the school thinking he’d be back in an hour or two.

He never set foot in the building again.

After 29 years of a spotless record, he was suddenly brought up on two 3020a charges stating that he physically reprimanded a student and mentally harassed a male teacher.

Both charges were false.

“It was all about power,” Aldorasi told the Gazette. “The current administration at I.S. 141 wanted me removed, plain and simple, just for advancement.”

The very people who initiated the allegations and the investigation were indeed advanced to assistant principal and principal positions after Aldorasi’s removal.

Aldorasi was informed by teachers still working at I.S. 141, that the dedication plaque, which hung outside the science lab named in his honor, had been removed.

“The current administration wanted to remove any trace that I had ever been involved with the school or that the science lab was there because of me,” said Aldorasi.

But the former educator wants that plaque restored to its rightful place outside the science lab.

When he appealed his case to the current Schools Chancellor Carmen Fariña, a representative told Aldorasi that the current administration and chancellor are both focused on “looking forward to the future and to not dwell on the past”.

“She’s the CEO,” said Aldorasi. “You don’t forget about the past. What happened to me was wrong and it has to be corrected. You have to build upon and learn from the past before you move forward.”

When the charges against him were dropped, Aldorasi was ordered reinstated as principal of I.S. 141. When Aldorasi returned to the school, there was a group of reporters outside and the parents of the child he allegedly physically reprimanded. Then Schools Chancellor Joel Klein reversed his decision and announced that Aldorasi would not return to I.S. 141.

One of the key elements that brought about Aldorasi’s acquittal was the role of I.S. 141’s current principal, who had became too heavily involved in the proceedings against him.

“I was a victim of people who were jealous of my success and a teacher’s union, the UFT, who was angry that I reprimanded teachers who were not living up to their responsibilities, which is to educate our children, our future,” said Aldorasi.

One of the reasons why he feels there is much hesitation in restoring the plaque is that it will cause the case against him to be revisited.

“If people see that plaque they’ll ask, “Who was Anthony Aldorasi? Why was he removed?” he said.

In 2010, former state Senator George Onorato honored Aldorasi for his extraordinary career as an educator with a Proclamation from the state of New York.

Aldorasi would like to see the plaque restored as soon as possible with the same amount of media attention and fanfare that surrounded his removal as principal.

“It’s the only way to forgive the sins of the past,” said Aldorasi. “I will not just let my legacy be forgotten.”

Principal who pushed student, intimidated teacher gets to keep his job

BY Erin Einhorn

DAILY NEWS STAFF WRITER

Tuesday, March 4, 2008, 12:50 AM

 
A middle school principal who inappropriately pushed a child and intimidated a teacher will keep his job despite city efforts to fire him, an arbitrator has ruled.
Education officials tried to fire Anthony Aldorasi from his $136,745 post at Intermediate School 141 in Queens.
He was yanked from the school last year and charged with three administrative counts of corporal punishment against students and three counts of intimidating a subordinate.
But as a tenured principal with 26 years in the school system, Aldorasi had a right to appeal.
"The arbitrator felt that charges against him were very thin and that nothing rose to the level of corporal punishment, which is why he wasn't fired," said principals union spokesman Brian Gibbons.
Last week, Aldorasi was found guilty on two counts of intimidation and one count of corporal punishment. He was told he could get his job back after paying a $6,000 fine and serving a 10-day suspension without pay, a schools spokeswoman said.

Aldorasi told the arbitrator that when he pushed a student by his shoulders into a chair, it was to get the boy to sit up straight, according to documents.

The arbitrator found this fell "far short of corporal punishment," but that touching a child in any way was not appropriate.
Aldorasi was also found guilty of ordering a teacher to pay $1,200 to replace a missing school amplifier and of threatening that teacher when he refused.
Aldorasi did not return calls seeking comment but a spokesman for his union said the charges against him were minor.
Aldorasi won't necessarily go back to IS141, but the arbitrator instructed the Education Department to find him a principal's job in District 30 in Queens - an order that doesn't sit right with parents or teachers at the school.
Teachers union President Randi Weingarten also sounded the alarm Monday. "What prevents this person from being a recidivist?" she asked.
eeinhorn@nydailynews.com

 

John Alleva v NYC DOI

 

JOHN ALLEVA, Plaintiff, v. NEW YORK CITY DEPARTMENT OF INVESTIGATION, Defendant.

Case No. 04-CV-4965 (FB) (ALC).

United States District Court, E.D. New York.

March 12, 2010. *274

Thomas F. Bello, Esq., Thomas F. Bello, Esq., P.C., Staten Island, NY, for the Plaintiff.

Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by: Alicia H. Welch, Esq., Assistant Corporation Counsel, On the Brief: Bruce Rosenbaum, Esq., New York, NY, for the Defendant.

MEMORANDUM AND ORDER



BLOCK, Senior District Judge.

John Alleva ("Alleva") is a former employee of the New York City Department of Investigation ("the DOI"); he was terminated on July 19, 2004. Alleva believes that he was discriminated against on account of his age because he was terminated; the DOI failed to promote him at various times; he suffered retaliation, and he endured a hostile work environment. Alleva claims that these alleged discriminatory acts violated the Age Discrimination in Employment Act ("the ADEA"), the New York State Human Rights Law ("the NYSHRL"), and the New York City Human Rights Law ("the NYCHRL").1*276 The DOI seeks summary judgment dismissing Alleva's complaint in its entirety.2 For the reasons that follow, the DOI's motion is granted. *2 The parties agree that Alleva, then 65 years of age, was interviewed for a position with the DOI at some point in early 1998 by Clive Morrick ("Morrick"), a DOI Inspector General. Alleva was subsequently hired in June 1998; he served as a Level III Confidential Investigator ("CI") for his entire tenure. At some point during his employment, he became a DOI Peace Officer, which required him to carry certain equipment, including a firearm, handcuffs, a baton, and pepper spray. He was fired in July 2004 at the age of 71.
1.

Alleva's complaint also alleged claims under Title VII, see Compl. ¶¶ 54-57, and under state law for intentional infliction of emotional distress. Id. ¶¶ 66-69. Alleva now candidly concedes that he cannot make out either claim. See Alleva Mem, of Law at 1 (noting that Title VII is inapplicable to Alleva's claims); id. at 6 (withdrawing emotional distress claim). Accordingly, the Court deems these claims withdrawn.
2.

The DOI contends that Alleva's complaint should be dismissed in its entirety since Alleva sued the DOI — a city agency — not the City of New York itself. See N.Y.C. Charter § 396 ("All actions . . . shall be brought in the name of the city of New York and not in that of any agency . . ."). When claims "are brought against non-suable entities," the Court may construe them "as brought against the City of New York." Thompson v. Grey, No. 08-CV-4499, 2009 WL 2707397, at *5 (E.D.N.Y. Aug. 26, 2009). This issue is ultimately irrelevant in light of the disposition of Alleva's claims on the merits in favor of the DOI.
I
A. THE COMPLAINT

The Complaint alleges that Alleva "was assigned the most difficult cases in the office" during his tenure, and that he "produced the division [ sic] largest share of convictions and referrals to the District Attorney." Compl. ¶ 22. Alleva believes, however, that he "was denied [pay] increases and promotions all due to his age rather than his vast *3knowledge, effective performance, overwhelming qualifications, and tremendous experience." Id. at ¶ 41.

The Complaint points to two alleged remarks by Alleva's superiors in support of his claims that his six-year tenure was marked by age discrimination. The first dates to October 1998, when Alleva's "sponsor," a "Deputy Commissioner Ford," left the DOI. Martha Gumbiner ("Gumbiner"), a DOI Deputy Inspector General and Alleva's superior, told Alleva that when the "sponsors" of DOI employees depart, the employee can "forget about any future advancement opportunities." Id. at ¶ 15. The second comment came from Morrick, who was Alleva's direct supervisor during the period June 1998 until some time in 2003. During a staff meeting on September 26, 2002, Morrick allegedly stated "we have enough old people working here." Id. at ¶ 24.

In addition to these comments, the Complaint alleges that several promotions were denied to Alleva. Three "Deputy Inspector General" positions were filled by Morrick between February 1999 and April 2000; Alleva claims that he was qualified for these positions but "was not extended an invitation" to interview. Id. at ¶¶ 18-19. In May 2001, Morrick hired Chris Staackmann ("Staackmann") as a "Chief Investigator"; Staackmann was "younger and less qualified" than Alleva. Id. at ¶¶ 18-19, 23.

Morrick left the DOI at some point in 2003; John Kantor ("Kantor") became Alleva's new supervisor, but continued to exhibit "hostility and discriminatory actions" against Alleva "on the basis of his age." Compl. ¶ 32. Alleva claims that Kantor: (1) required Alleva to complete a *277 "proactive investigation" without sufficient support; (2) disapproved one of Alleva's claims for reimbursement for a meal he purchased while *4 working on the investigation; (3) suspended Alleva's driving privileges for failing to report a February 2004 automobile accident in compliance with DOI policies; (4) ordered Alleva to surrender his firearm after "having words" with him. Id. at ¶¶ 31-37. Kantor also hired another unnamed person "who was younger and less experienced" than Alleva as a Chief Investigator in May or June 2004. Id.at ¶ 39.

Alleva was then terminated on July 19, 2004; he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 20, and the EEOC issued a right to sue letter on August 17, 2004. Id. at ¶¶ 40-43. In sum, Alleva believes that the following events or courses of conduct violated his rights under the ADEA, NYSHRL, and NYCHRL:
I) Termination (July 19, 2004)
ii) Failure to Promote Alleva to Chief Investigator (May/June 2004)
iii) Failure to Promote Alleva/Hiring of Staackmann as Chief Investigator (May 2001)
iv) Failure to Promote Alleva to Deputy Inspector General (February 1999-April 2000)
v) Hostile Work Environment (Entire Tenure)
vi) Retaliation (Date Unclear)

B. THE DOI'S POSITION

The DOI has a far different account of Alleva's tenure, and its account is supported by a 56.1 Statement of Material Facts comprised of 35 paragraphs and 37 *5 documentary exhibits in support. The DOI also submitted the declarations of two DOI employees: Walter Arsenault ("Arsenault"), the former First Deputy Commissioner of Investigation for the DOI, attests to facts concerning Alleva's termination; Cynthia Mathis, the current Director of Human Resources for the DOI, attests to facts concerning Alleva's DOI salary. In sum and substance, the 56.1 Statement and its supporting exhibits and declarations lay out a series of DOI policy breaches committed by Alleva in 2003 and 2004. These breaches — to which Alleva admitted under oath in an interview of June 23, 2004 — directly precipitated his termination.
C. ALLEVA'S RESPONSE

In opposition to the DOI's statement of the case, Alleva, who is represented by counsel, offers no evidence beyond the bare allegations of his Complaint. He has submitted a threadbare three-page 56.1 Statement of Material Facts, which cites no documents or evidence and fails to controvert any of the DOI's facts beyond the vague and conclusory statement "Plaintiff disputes the substance of this paragraph[.]" See Alleva 56.1 Statement passim (July 30, 2009). There are also two declarations from Alleva and one by his attorney. Each purports to be "under penalty of perjury" pursuant to 28 U.S.C. § 1746, but each is unsigned. See Alleva Decl. at 4 (July 30, 2009) (unsigned); Alleva Am. Decl. at 4 (Aug. 19, 2009) (unsigned); Bello Decl. at 1, Docket Entry No. 40 (undated and unsigned). In sum, these three brief and conclusory declarations do little more than recite the allegations of the Complaint; none of them cites any evidence to controvert the DOI's Statement of Facts. Alleva's counsel also submitted a very brief memorandum of law. *6

Finally, Alleva himself submitted a letter directly to the Court, stating that he has "not been able to reach" his counsel and that he feels that he is "being placed *278 in a position of having to represent myself." See Letter from J. Alleva (Aug. 31, 2009). This letter reiterates some of the Complaint's allegations; it further alleges that certain allegations will be proved by "documents asked for in discovery," though it fails to specify which documents were requested and not provided.3 The letter bears Alleva's signature but is not notarized nor does it purport to declare facts "under penalty of perjury" pursuant to 28 U.S.C. § 1746.
3.

Alleva's letter also appears to raise — some five years into the litigation — a new allegation of discrimination based on ethnicity. See Letter from J. Alleva at 4 (claiming that several other DOI employees were discriminated against on the basis of age and on the basis of Italian-American heritage). Since Alleva's letter does not allege that he himself was discriminated against on this basis, the Court has no need to consider this allegation or to determine whether the Complaint may be constructively amended at this late hour by a pro se letter submission.
II

Local Rule 56.1 provides, in relevant part, that a 56.1 Statement "will be deemed to be admitted for purposes of the motion unless specifically controverted" by the opposing party. Local R. 56.1(c). Statements in opposition "must be followed by citation to evidence which would be admissible[.]" Local R. 56.1(d). Alleva's 56.1 Statement does not specifically controvert anything set forth by the DOI, nor does it cite any evidence.

The three declarations could be treated as a substitute for a 56.1 Statement. See 10A Wright, Miller Kane Federal Practice Procedure: Civil 3d § 2728, at 529 (1998) ("[W]hen the evidence offered in opposition to a motion . . . for summary judgment is defective in form but is sufficient to apprise the court that there is important and relevant *7 information that could be proffered to defeat the motion, summary judgment ought not to be entered."). However, the lack of a signature renders them invalid under 28 U.S.C. § 1746, which requires the signature of the declarant.4See 28 U.S.C. § 1746 (providing that any matter required to be proved by affidavit or under oath may be proven by a written statement "declare[d] under penalty of perjury" that is "subscribed" or signed by the declarant). Since they are invalid, they cannot be considered as evidence in opposition to the DOI's motion. Even if they were signed, none of the declarations cites any evidence that controverts anything set out by the DOI's Statement of Facts. As for the memorandum of law, legal argument is not evidence. Finally, Alleva's letter of August 31, 2009, has no evidentiary value because it is unsworn.
4.

The declaration by counsel is deficient for an additional reason; counsel offers no facts based on "personal knowledge," and personal knowledge is required. Fed.R.Civ.P. 56(e)(1) ("A supporting or opposing affidavit must be made on personal knowledge[.]").

The Court is left, therefore, with the Complaint. "A verified complaint is to be treated as an affidavit for summary judgment purposes," provided that it "meets the other requirements for an affidavit under [Federal Rule of Civil Procedure] 56(e)." Colon v. Coughlin, 58 F.3d 865,872 (2d Cir. 1995). The Complaint is not verified, however; it bears only the signature of Alleva's attorney, not the signature of Alleva himself, and Alleva's attorney does not attest to any "personal knowledge" of the Complaint's allegations. "Personal knowledge" is required under Rule 56(e)(1); moreover, a party opposing summary judgment "may not rely merely on allegations or denials in its own pleading[.]" Fed.R.Civ.P.56(e)(2). Accordingly, *279 the Complaint has no evidentiary weight. *8

Alleva thus offers no evidence of any kind in support of the allegations of his Complaint or in opposition to the DOI's motion or the DOI's Statement of Facts. Even if the Complaint, the declarations, and Alleva's letter were accepted as admissible evidence — which they are not — they do not specifically controvert anything set forth in the DOI's Statement of Facts. The DOI's Statement of Facts is therefore deemed admitted for purposes of the DOI's motion. SeeLocal R. 56.1(c). The relevant facts of the DOI's Statement are set out below.
III

For the period 1998-2002, Alleva's DOI performance reviews indicate that he was, on the whole, a satisfactory employee who: "willingly assisted" other investigators in their cases; provided "highly effective support"; and "appl[ied] himself to document intensive matters, and work[ed] well with the prosecutors' offices handling his referred matters." DOI 56.1 Statement at ¶¶ 6, 9. Notwithstanding these positive reviews, by 2003 Alleva's relationship with his employer had soured. In evaluating Alleva's performance for 2002, Morrick (then his supervisor) wrote: "[Alleva] does not approach small matters . . . with much enthusiasm . . . [Alleva] has time on his hands and should be looking for assignments. For all his experience, [Alleva] sometimes forms premature judgments about a case and does not dig sufficiently deep for evidence." Id. at ¶ 13.5*9
5.

With respect to Alleva's allegation that Morrick stated at a 2002 meeting that "we have enough old people working here," Morrick testified at his deposition that "[t]here may have been a time when I made a remark . . . of that tenor[;] that would have been self-directed. That is directed at me . . . If I said it, [I said it about myself]." Morrick Dep. Tr. at 16 (Oct. 18, 2007), Welch Decl. Ex. E. Morrick was approximately 60 years of age at the time of the alleged statement.

Alleva appealed this evaluation by sending a letter to Daniel Brownell ("Brownell"), the DOI Deputy Commissioner for Investigations. See Mem. from J. Alleva to D. Brownell (Dec. 10, 2002), Welch Decl. Ex. L. Alleva complained of "a number of personal and discriminatory actions" by Morrick, and further added that the DOI had a discriminatory animus against him, based on: (1) Gumbiner's alleged 1998 statement; (2) the failure to promote Alleva from CI III status; and (3) perceived favorable treatment accorded to other investigators. See DOI 56.1 Statement at ¶ 14. Notably, Alleva's letter to Brownell made no reference of any kind to age, nor did it complain of discrimination based on age. The results of Alleva's appeal, if any, are not in the record.

On September 29, 2003, Kantor, who had by then replaced Morrick as Alleva's supervisor, conducted an inspection of all DOI Peace Officers, including Alleva; Alleva was not in possession of his handcuffs, pepper spray, and baton.6 He was required to have these under DOI Peace Officer policy.
6.

Three other DOI Peace officers were inspected at the same time; each was in possession of all required equipment.

In October 2003, Alleva was driving his DOI-issued vehicle on the Brooklyn Bridge when he "bumped" another vehicle. Alleva did not obtain any identifying information about the other vehicle, nor did he report the accident to the DOI fleet coordinator. DOI policies and procedures required him to do both.

Between October 2003 and January 2004, Alleva made more than forty hours of non-work related telephone calls from the telephone in his DOI office; most of these calls were *280 to family members and personal friends. More than six hours of calls were made in *10 connection with Alleva's attempt to resolve an erroneous water bill for a personal friend. These activities violated DOI policies.

On February 6, 2004, Alleva struck a pedestrian in Staten Island while driving his DOI-issued vehicle. Alleva did not obtain complete information about the pedestrian or any possible witnesses, nor did he notify the DOI fleet coordinator; DOI policies required him to do both. Alleva's driving privileges were suspended by Kantor due to his failure to report the accident.7
7.

Alleva did notify James Christo, a fellow investigator, about the accident. With respect to Alleva's allegation that "no other employee was subjected" to a similar suspension of driving privileges, Kantor testified in his deposition that he has suspended at least one other employee's driving privileges. Kantor Dep. Tr. at 39:09-22.

DOI personnel investigated the facts and circumstances of the February 2004 accident.8 Kantor asked Alleva to surrender his firearm during the investigation, but Alleva was not carrying his firearm, a second violation of DOI Peace Officer policies.
8.

The investigation was evidently delayed by Alleva's absence from work due to medical concerns.

Arsenault and Brownell interviewed Alleva under oath on June 23, 2004. After demanding and receiving immunity against prosecutorial use of his testimony, Alleva admitted that he violated DOI policies with respect to: reporting accidents; using DOI phones and fax machines; and attempting to use his office to help a friend with a water bill. Alleva also admitted that he violated DOI Peace Officer policies by failing to carry his firearm in February 2004.

In a letter dated July 13, 2004, Arsenault terminated Alleva's employment effective July 19, 2004. Arsenault's letter did not specify the reasons for Alleva's *11 termination, but Arsenault's declaration states that Alleva's admission to multiple violations of DOI policies precipitated his termination. See Arsenault Decl. ¶¶ 4-5.9
9.

For purposes of completeness, although Alleva has adduced no evidence in support of his allegations that he was unjustly denied pay raises, the Court notes that Alleva received at least one pay increase during his tenure. See Personnel Action re: Alleva, John (July 1, 2000) (raising Alleva's pay by $1,064 per year, a net effective raise of 2.3%), Welch Decl. Ex. K. The DOI's records indicate also that Alleva was the highest-paid CI during his tenure. See Welch Decl. Ex. C. As to Alleva's claim that he was unjustly denied reimbursement for an overtime meal, the Court notes that the DOI has submitted evidence indicating that the reimbursement request was approved and paid. See Pay Inquiry for Alleva, John (Apr. 1, 2009) (reflecting payout of $16.50 for "Supper Money" incurred January 23, 2004), Welch Decl. Ex. HH.
IV
A. STANDARD OF REVIEW

A party's motion for summary judgment should be granted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). The movant must demonstrate the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). Facts are "material" if they "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are *281 in dispute only if "the evidence is such that a reasonable jury could return a verdict for the non-moving party," see id., and the facts "must be viewed in the light most favorable to the nonmoving party . . ." Scott v. Harris, 550 U.S. 372, 380 (2007) (internal citation omitted). If the movant succeeds in showing that no genuine issue remains to be tried, then summary judgment should be granted unless the opposing party can "come forward with `specific facts*12 showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986) (quoting Fed.R.Civ.P. 56(e)) (other internal citations omitted).

Since "direct evidence of an employer's discriminatory intent will rarely be found," motions for summary judgment in employment discrimination actions should be evaluated with particular caution. Schwapp v. Town of Avon, 118 F.3d 106,110 (2d Cir. 1997) (citations omitted). Nonetheless, a plaintiff who believes that he has been subjected to discriminatory animus "must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Id. at 110 (internal citation omitted). "It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." Abdu-Brisson v. Delta Air Lines, 239 F.3d 456,466 (2d Cir. 2001).
B. ALLEVA'S CLAIMS

1. Federal Claims — Age Discrimination Under the ADEA a. ADEA's Statute of Limitations

There is a threshold question of which claims may be considered in light of the ADEA's relatively short statute of limitations of 300 days. Teivksbury v. Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999); 29 U.S.C. § 626(d)(1)(B) (defining the statute of limitations). The statute of limitations was tolled when Alleva submitted his claim to the EEOC on July 20, 2004.10See Welch Decl., Ex. DD (Alleva's EEOC claim form). Discriminatory acts that occurred prior to September 24, 2003, are therefore time-barred. *13
10.

The EEOC form is stamped "Received" on July 22, 2004, but was signed by Alleva (and notarized) on July 20, 2004. The Court will give Alleva the benefit of the intervening two days, although they ultimately have no bearing on the statute of limitations issue.

Alleva contends that the ADEA's statute of limitations does not apply because he has been subjected to a "continuing violation" of his rights. Alleva Mem. of Law at 2. The "continuing violation" doctrine provides that "if a plaintiff has experienced a continuous practice and policy of discrimination," the statute of limitations will not begin to run "until the last discriminatory act in furtherance of it." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal marks and citation omitted). The doctrine "is heavily disfavored in the Second Circuit," however, and "courts have been loath to apply it absent a showing of compelling circumstances." Trinidad v. N.Y. City Dep't of Corr., 423 F. Supp. 2d 151, 165 n. 11 (S.D.N.Y. 2006) (internal marks and citations omitted). Moreover, the continuing violation doctrine may not be applied to otherwise time-barred "discrete discriminatory acts . . . even where they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). "Discrete" acts of discrimination include "termination, failure to promote, denial of transfer, or refusal to hire"; each "starts a new clock for filing charges alleging that act." Id. at 113-14. *282

Alleva's termination claim is timely. As for the multiple times he alleges he was passed over for promotion, National Railroad bars the consideration of any failures to promote that occurred before September 24, 2003. With respect to the hostile work environment and retaliation claims, the Court cannot discern from Alleva's submissions whether there exist "compelling circumstances" to justify the application of the "heavily disfavored" continuing violation doctrine. Since the Court ultimately concludes that both claims fail on the merits, the Court has no need to determine whether the continuing violation doctrine applies in these circumstances. *14 b. Termination

Until quite recently, ADEA claims were analyzed under the familiar "burden-shifting" framework of McDonnell Douglas. See, e.g., D'Cunha v. Genovese/Eckerd Corp., 479 F.3d, 194-95 (2d Cir. 2007). However, the Supreme Court last term cast doubt on the continued application of McDonnell Douglas to ADEA claims: "This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now." Gross v. FBL Fin. Servs., 129 S.Ct. 2343, 2349(2009); id. at 2349 n. 2 (reiterating that Supreme Court "has not definitively decided whether the evidentiary framework of McDonnell Douglas" is "appropriate in the ADEA context").

Gross makes clear that, regardless of whether the burden-shifting framework retains any analytical viability, Alleva would ultimately have to establish "that age was the `but-for' cause of the employer's adverse action." Id. at 2351. Since the Court ultimately concludes that no evidence in the record shows that age was a cause — much less the "but-for" cause — of Alleva's *15 termination, it has no need to consider whether the burden-shifting analysis remains applicable.See, e.g., Holowecki v. Fed. Express Corp., 644 F. Supp. 2d 338, 352 (S.D.N.Y. 2009) (disposing of ADEA claims on merits because "plaintiffs have failed to make out even a colorable case of age discrimination," "regardless of whether or not[McDonnell Douglas] continues to apply").

Alleva cannot prove that his age was the "but-for" cause of his termination. He admitted to multiple violations of DOI policies and procedures at his interview on June 23, 2004; he was terminated within weeks. Arsenault's declaration states that Alleva's termination was on account of these violations, and Alleva offers no evidence to the contrary.

c. Failure to Promote Claims

ADEA's statute of limitations bars consideration of the alleged failures to promote Alleva in 1999-2000 and 2001. Nat'l R.R., 536 U.S. at 113-14. The only "failure to promote" claim that survives, therefore, is Alleva's allegation that he was unjustly denied a promotion to Chief Investigator by Kantor in 2004. In light of Gross, Alleva would ultimately have to prove by a preponderance of the evidence that age was the "but-for" cause of a decision to deny him this promotion.Gross, 129 S.Ct. at 2351; see also Faison v. Dist. of Columbia, 664 F. Supp. 2d 59, 67 (D.D.C. 2009) (applying Gross to failure to promote claims).

Alleva cannot possibly make out this claim: he did not even apply for the position that he contends was unjustly refused to him. Compare Kantor Dep. Tr. at 18:16-17 ("I don't recall [Alleva] applying for that position."), Welch Decl. Ex. N, with Alleva Dep. Tr. at 58:03-09 ("[Q.] [W]ere there specific promotions that you applied for and did not receive? [A.] No, I don't think it works that way in D.O.I. *283 unless it changed since I left you don't apply . . . I don't know what you're talking about."), Welch Decl. Ex. O. Alleva contends that whether or not he applied is irrelevant because "[i]t was developed during discovery that a formal application was unnecessary when the agency wanted an individual to be promoted." Id. Alleva submits no evidence of such a policy. Even if such a policy existed, Alleva submits no evidence that any of the hiring authorities at the DOI were even aware that he might be interested in the position. Without consciousness of his *16 candidacy, it is impossible for hiring authorities to have rejected it. It is logically impossible for Alleva's age to have been a "but-for" cause of a decision that was never made.

d. Hostile Work Environment

A hostile work environment under the ADEA is one in which "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of the victim's employment."Fordham v. Islip Union Free Sch. Dist., 662 F. Supp. 2d 261, 271 (E.D.N.Y. 2009) (quoting Kassner v. 2d Ave. Delicatessen, 496 F.3d 229, 239 (2d Cir. 2007). To make out such a claim, Alleva must prove that: (1) he was subjected to harassment, based on his age, that was "sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment"; and (2) "that a specific basis exists for imputing the objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (internal citation omitted).

To be "severe or pervasive," Alleva must show that the conduct was: (1) "objectively severe or pervasive . . . [creating] an environment that a reasonable person would find hostile or abusive"; (2) "subjectively" severe or pervasive, in that Alleva must have perceived it as hostile or abusive; and (3) on account of Alleva's age. Patane v. Clark, 508 F.3d 106,113 (2d Cir. 2007). Objective severity is assessed on a "totality of the circumstances," which may include: (1) "frequency of the discriminatory conduct"; (2) "its severity"; (3) "whether it is physically threatening and humiliating, or a mere offensive utterance"; and (4) "whether it unreasonably interferes with an employee's work performance."Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). *17

With these principles in mind, it is clear that Alleva's hostile work environment claim fails. Even if the Court were to accept the bare allegations of the Complaint as evidence, Alleva's allegations of hostility fall well short of demonstrating an objectively hostile work environment. Aside from his complaints about being passed over for promotion, his specific claims of "hostility" are limited to two stray and only arguably offensive remarks separated by four years — hardly the makings of a "severe and pervasive" atmosphere of humiliation. See, e.g., Kassner, 496 F.3d at 240-41 (reversing district court that dismissed hostile work environment claim for failure to state a claim where first plaintiff alleged being subjected to "repeated" and "degrading" comments including "drop dead," "retire early," "take off all of that make-up," and "take off your wig"; affirming district court's dismissal of claims of second plaintiff who alleged only "pressure" to "retire from employment"). Gumbiner's 1998 comment, construed objectively, had nothing to do with age but everything to do with workplace relationships. Morrick's 2002 comment, construed objectively, might be found mildly offensive by some, but falls far short of "severe" or "humiliating." *284 e. Retaliation

To make out a claim of retaliation in violation of the ADEA, Alleva must show that he: (1) participated in a protected activity; (2) that the DOI knew of the protected activity; (3) that he suffered an adverse employment action; and (4) that the protected activity and the adverse employment action were causally related. McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001) (internal citation omitted); see also 29 U.S.C. § 623(d) (ADEA is violated whenever an employer retaliates against an employee because *18 employee "has opposed any practice made unlawful by this section, or because [employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter").

Alleva's discussion of his retaliation claim in his submissions in opposition to the DOI's motion is a single paragraph that makes only two cursory references to possible "protected activities" referred to in his Complaint: (1) his administrative challenge to his 2002 performance rating; and (2) "when he met with DOI commissioners about [Gumbiner's] statements" in 1998. See Alleva Mem. of Law at 6.

Alleva does not explain how either event constituted a protected activity, nor does he explain how he was retaliated against for complaining. The 2002 letter to Brownell did not complain of any age-based discrimination, so it does not qualify as a protected activity; even if it did, Alleva does not establish a causal link to any adverse employment action he suffered on account of this letter, which was submitted more than 18 months before his termination. Morrick, the chief target of Alleva's administrative challenge, ceased being Alleva's supervisor at some time in 2003, and had nothing to do with his discipline and termination in 2004. Morrick Dep. Tr. at 9:17-21, 22:11-15, Welch Decl. Ex. F. As for Alleva's "conversation" in 1998 about Gumbiner's 1998 comment, Alleva fails to establish that Gumbiner's comment was related to Alleva's age; even if it was, he does not explain how he was retaliated against because of any complaint about Gumbiner. See Alleva Mem. of Law at 6. *19

In short, Alleva's one-paragraph discussion of his retaliation claims, which cites no evidence and offers no argument, falls short of demonstrating that a genuine issue of fact remains for trial.

2. State Municipal Law Claims Under the NYSHRL the NYCHRL

Only Alleva's state and municipal law claims remain, and the Court must determine whether to exercise supplemental jurisdiction over them. See 28 U.S.C. § 1367(c) (district court "may decline to exercise supplemental jurisdiction" if, among other circumstances, the "court has dismissed all claims over which it has original jurisdiction."). The Second Circuit has set forth several factors to be considered when deciding whether to exercise supplemental jurisdiction: "(1) whether state law claims `implicate[] the doctrine of preemption,' . . . (2) `judicial economy, convenience, fairness, and comity,' . . . (3) the existence of `novel or unresolved questions of state law,' . . . (4) whether state law claims `concern the state's interest in the administration of its government." Drake v. Lab. Corp. of Am. Holdings, 323 F. Supp. 2d 449,452 (E.D.N.Y. 2004) (quoting Valencia ex rel. Franco v. Lee, 316 F.3d 299, 306 (2d Cir. 2003)). "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1490 (2d Cir. 1993). *285

"Age discrimination claims brought pursuant to the NYSHRL and the NYCHRL are analyzed under the ADEA framework[.]" Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n. 1 (2d Cir. 2009). Gross has significantly altered the framework of ADEA claims however, and Gross may (or may not) alter the framework of NYSHRL and NYCHRL *20CLAIMS. There exists but one New York case citing Gross, though that case strongly implies that the "but-for" causality required by Gross is now the law of New York. See Anderson v. Young Rubicam, 890 N.Y.S.2d 45, 46 (1st Dep't 2009) (affirming trial court's refusal to give "mixed motive" jury charge on age discrimination claims, citing Gross).

Notwithstanding this single case, there remains a question of whether the analytical frameworks of the ADEA, the NYSHRL, and the NYCHRL will continue to mirror one another after Gross; therefore, the Court declines to exercise its supplemental jurisdiction over Alleva's state and municipal law claims.
V

The DOI's motion is granted as to Alleva's federal claims. Alleva's NYSHRL and NYCHRL claims are dismissed without prejudice to renewal in state court. The complaint is therefore dismissed in its entirety.
SO ORDERED.

Carmen Farina Vows To Continue Bloomberg's Policy On Gifted And Talented Programs



 The truth of the matter is that we all must look at Carmen's history in the public school system. What exactly did she do as principal of PS 6?

She was the Equalizer. She ended the Gifted and Talented program; she removed 80% of the senior teachers; she created a School Leadership Team with 4 people; she would not account for the $225,000 Challenge For The Arts Grant money. Where is the surprise over her recent announcement about gifted and talented programs?

C'mon, people, history repeats itself unless you know the past and what to change.

Let Carmen return to retirement. She is not listening.

Betsy Combier

Carmen Farina

 LINK

Schools Chief Vows to Preserve Number of Gifted Programs and Their Exams

By JAVIER C. HERNÁNDEZJUNE 17, 2014

Schools Chancellor Carmen Fariña plans to preserve the hallmarks of New York City’s gifted programs, the immensely popular classes and schools that draw high achievers but have been criticized as shutting out low-income children.

Ms. Fariña, in an interview this week covering a variety of issues, pledged to continue using a contentious gifted admissions exam for 4- and 5-year-olds that was put in place under former Mayor Michael R. Bloomberg. She also promised to preserve the number of gifted programs citywide.

“What exists right now is serving the purpose of communities, and I have no intention of touching it,” she said during an interview at the Education Departmentheadquarters on Monday.

She outlined plans to improve academic options for low-income students, including getting teachers at high-performing schools to advise teachers at struggling ones, and strengthening instruction in algebra, where many middle and high school students founder.

But Ms. Fariña, a longtime teacher, principal and administrator who got a quick introduction to politics this year, was careful to note that she intended no changes that could drive middle- and upper-class families from the system.

She said she opposed eliminating zone-based elementary school admission, which has been pushed by some advocates as a way of increasing racial diversity.

“You would find parents who have invested in certain places,” she said. “You’re not going to tell them this is your zoned school but you can’t go.”

And while she said she planned to expand tutoring for low-income children seeking entry to the city’s elite high schools, she said she would not mandate the return of an admissions program that allowed some disadvantaged students into the schools even if they did not score high enough on the entry test.

Some advocates had hoped Ms. Fariña would overhaul thegifted and talented programs, which they see as a critical front in the effort to reduce inequality in the school system. As principal of Public School 6 on the Upper East Side of Manhattan in the 1990s, Ms. Fariña ended a popular gifted program, arguing that students would be better served if they were mixed by ability.

In recent years, the city has struggled to increase the number of black and Hispanic students in gifted programs. In 2007, under Mr. Bloomberg, the Education Department instituted a citywide test that it hoped would make the admissions process fairer, replacing a system in which districts set their own standards. Instead, it wound up widening racial and socioeconomic disparities, with students in wealthier districts qualifying for gifted seats in far greater numbers than their poorer counterparts.

“The inequities in the current makeup of our gifted and talented programs are a citywide disgrace,” said James H. Borland, a professor of education at Columbia University. Professor Borland suggested that the city judge students relative to the performance of their neighborhoods, rather than the whole city.
Continue reading the main storyContinue reading the main story
Continue reading the main story

Ms. Fariña said she was eager to bring strategies used in gifted programs, including project-based learning, to schools across the city. She said bright children outside gifted programs could be served by other means, including clubs, lunchtime programs, and science, technology, engineering and math enrichment.

“There’s a lot of other ways to reach the needs of these kids,” she said.

Nearly six months into her tenure as schools chief under Mayor Bill de Blasio, Ms. Fariña said she was focused on improving the quality of teaching, especially at low-income schools. She said she was proud of her efforts to require new principals to have more teaching experience, to reduce the role of standardized tests and to negotiate a teachers’ contract that included bonuses for educators who take on leadership roles.

“We have changed the climate in terms of people feeling good about the jobs they’re doing,” she said.

Mr. de Blasio has promised to involve parents and neighborhood leaders more actively in the work of schools. On Tuesday, he announced a $52 million grant to create 40 community schools, which combine traditional academic programs and social services with the aim of addressing issues like chronic absenteeism.

Given a new state law requiring the city to provide free space to new charter schools or to help pay their rent, Ms. Fariña said she did not expect battles over space to end anytime soon, given the scarcity of available classrooms and the city’s efforts to expand prekindergarten programs.

Job protections for teachers may also emerge as a topic of contention. A California court recently found teacher tenure laws unconstitutional, and legal scholars expect copycat cases.

Ms. Fariña said she did not believe tenure laws hindered education. But she said principals had to be vigilant and work to remove ineffective teachers from the classroom.

“Getting tenure might be a goal, but also removing tenure when necessary is also a goal,” she said.

Ms. Fariña said that she was enjoying her job, and that she would stay on at least through the end of Mr. de Blasio’s current term. She said her biggest regret was a remark she made at the height of a snowstorm in February. Defending a decision to keep schools open, she said that it was a“beautiful day” outside, even as snow and freezing rain continued to hit the ground.

She said that the line had become a conversation starter, and that strangers shouted it to her on the street. “It’s going to be on my tombstone,” she said, “and I can live with it.”

NYSUT and Cuomo Work On Teacher Evaluations and Common Core Test Scores

New York State Governor Andrew Cuomo

NYSUT head ‘optimistic’ a deal on evaluations will beat deadline

by Geoff Decker on June 13, 2014

 

 

 

 

LINK

Gov. Andrew Cuomo and New York’s teachers union are working toward an agreement to keep student scores on Common Core-aligned tests from counting toward a teacher’s evaluation.

But the two sides are still divided over which evaluation years will include those scores, and how long into the future to discount them. There is also disagreement over what, if anything, should replace the part of a teacher’s rating that was based on test scores.

Those issues are on the table as they negotiate a union-backed bill to change the state’s teacher evaluation law, New York State United Teachers President Karen McGee said in a radio interview on Friday. McGee said she was “guardedly optimistic” that a deal would be reached before the legislative session ends next Thursday.

Addressing teacher evaluations is one of the few issues that both Democrats and Republicans seem eager to keep alive as that deadline approaches.

McGee said that the union and officials have found common ground on some of concerns that teachers have been raising for more than a year about the implementation of the evaluations. (For New York City teachers, this has been the first year working under the new evaluation system, but it’s the second year for the rest of the state’s teachers.)

Their debate has centered around whether new, tougher state English and math tests, which have been in place for the last two years, have been a fair way to measure how much students have learned. NYSUT is arguing that scores from the initial years of tests shouldn’t be used because their rollout was mishandled by the State Education Department—one part of a generally rocky transition to the Common Core learning standards.

“We’re saying that the tests are severely flawed, that they be deemed invalid and be tossed out,” McGee said.

Under the current law, tests count for 20 of 100 points that make up a teacher evaluation; they count for another 20 points in many districts. The remaining points are based largely on principal observations.

McGee said the union is focusing only on the points of the rating that are affected by the new tests. And she agreed with Cuomo  that throwing out a teacher’s entire evaluation would be “overkill.”

Cuomo hasn’t publicly stated what role, exactly, the Common Core-aligned tests should play in evaluations. But he said that the law should be tweaked for teachers because of “flaws with the way Common Core was being implemented.”

But there is still some disagreement over when the test scores should matter again in teacher evaluations. Board of Regents Chancellor Merryl Tisch said on Thursday that they should count no later than the 2014-15 school year, while NYSUT’s bill, which has passed in the Assembly, would give teachers an additional year without worrying how student scores would affect their evaluations.

Merryl Tisch

 

Another issue is what, exactly, would replace state test scores if that part of evaluations is discounted.

The NYSUT bill would give teachers a rating based solely on a principal’s observations in some cases. That goes against the state’s Race to the Top promise to measure teachers based on some measure of student learning. An alternative proposal that was being discussed, a union official said, wouldn’t change a teachers’ rating, but would ensure they couldn’t be fired based on multiple years of poor student performance on the Common Core tests.

If the bill passes, the changes won’t affect the majority of teachers in New York. Only about 20 percent of the state’s teachers work in state-tested grades and subjects, though other teachers—whose schools opted for evaluations that reflect schoolwide test score averages—could see changes as well.

The number of teachers that the changes would protect against termination, though, is likely to be small. The state hasn’t released a breakdown of ratings for the 2012-13 school year, but just 6 percent of teachers were rated “ineffective” on that part of their evaluation a year earlier.