New York Court of Appeals Affirms NYPD Discrimination Award in Albunio v City of New York

Decided on March 31, 2011

No. 43

Captain Lori Albunio, et al., Respondents, The

v

City of New York, et al., Appellants. —-

Robert Sorrenti, Plaintiff,
v
The City of New York, et al., Appellants.
Julie Steiner, for appellants.
Mary D. Dorman, for respondents.

SMITH, J.:

A jury found that two members of the New York City Police Department, Captain Lori Albunio and Lieutenant Thomas Connors, were subjected to retaliation because they opposed discrimination against a third member of the department, Sergeant Robert Sorrenti, on the basis of Sorrenti's perceived sexual orientation. We hold that there is sufficient evidence in the record to support the verdict. [*2]

I
Albunio was commanding officer of the Youth Services section of the police department. Connors was operations coordinator of the section, and reported to Albunio. Sorrenti, then serving in another command, applied in 2001 to be transferred into the Youth Services section. Albunio interviewed him, and was favorably impressed; when a position opened in April 2002 in a Youth Services program known as DARE, in which police officers educate New York City school children about the dangers of drugs, she requested that Sorrenti be chosen to fill the vacancy. The request was submitted to Inspector James Hall, who had recently become commanding officer of Community Affairs, and Albunio's immediate supervisor. Hall decided to interview Sorrenti himself, and did so, with Albunio present, on May 13, 2002.

From this point on, the facts were sharply disputed at trial, but the jury could have found the following: At the May 13 interview, Hall asked Sorrenti whether he was married, and whether he had children. He also questioned Sorrenti aggressively about Sorrenti's relationship with another male police officer to whom Sorrenti had loaned money, saying loudly, among other things: "You were more than just friends." Sorrenti became visibly uncomfortable with the questions. After the interview, Hall told Albunio "that there was something not right about that guy." Hall later chose another person for the open position with DARE, telling Albunio that he "found out some fucked up shit about Sorrenti and . . . wouldn't want him around children." Albunio's interpretation of this statement was: "[T]he guy must think the guy is gay and for some reason doesn't want him around kids."

In June or July of 2002, Hall called Connors into Hall's office and began to speak to him about Sorrenti, angrily and with the use of many expletives. He talked about Sorrenti's loan to his fellow officer, saying "There must be more between this cop and Sergeant Sorrenti," and added that he "wouldn't be able to sleep at night knowing that Sorrenti is going to be working around kids." Connors responded that he thought Sorrenti "would be more than qualified to work around kids" and showed Hall a favorable evaluation Sorrenti had received. Connors inferred from the conversation that Hall "believed that Sergeant Sorrenti was a child molester and homosexual."

In the fall of 2002, Albunio began to hear rumors that she would be removed from the command of the Youth Services section. She asked for a meeting to discuss this subject with Hall's superior, Deputy Commissioner Frederick Patrick. The meeting took place on October 31, and Hall was present at it with Patrick.

At the October 31 meeting, Patrick confirmed that he and Hall "were contemplating" replacing Albunio, to which she responded: "[W]hy am I losing my command?" Hall interjected to say that Albunio "utilized poor judgment when requesting personnel," citing [*3]Sorrenti as the primary example. Albunio told Hall that "Sorrenti was the better candidate," adding: "If I had to do it all again, I would have recommended Sorrenti again." Albunio was told that it would be in her best interest to find another assignment, which she soon did — an assignment much less desirable than the one she left.

Albunio told Connors that she had been directed to go elsewhere. Connors, on November 8, 2002, filed a complaint with the police department's Office of Equal Employment Opportunity alleging that Hall had discriminated against Sorrenti because of Sorrenti's perceived sexual orientation. Soon after that, Connors was contacted about the complaint by someone who worked directly for Hall, leading Connors to believe that Hall knew of Connors's accusation. Connors put in for a transfer from the Youth Services section, believing that with Albunio's forced departure "[t]he writing was on the wall for me." During his remaining time with Youth Services, he suffered a number of adverse employment actions: geographical assignments and hours of work were changed in ways he did not like; and he was shunned and excluded from meetings by Hall and Hall's other subordinates. When his transfer finally came through, he got a less desirable job than he had expected.

Albunio and Connors brought this action against the City, Hall and Patrick, alleging violations of the anti-retaliation section of the New York City Human Rights Law, New York City Administrative Code § 8-107 (7). (Sorrenti also brought a discrimination lawsuit, which was tried with Albunio's and Connors's case, but which is not involved in this appeal.) The jury found that the City and Hall had retaliated against both plaintiffs, and awarded damages. A judgment was entered on the verdict, which the Appellate Division affirmed, with one Justice dissenting as to Albunio. The Appellate Division granted leave to appeal to this Court, and we now affirm.

II

New York City Administrative Code § 8-107 (7) says, in relevant part:

"It shall be an unlawful discriminatory practice . . . to retaliate or discriminate in any manner against any person because such person has . . . opposed any practice forbidden under this chapter."

The dispositive question on this appeal is whether the record supports the jury's finding that Albunio and Connors "opposed" discrimination against Sorrenti on the basis of Sorrenti's perceived sexual orientation (a practice forbidden by Administrative Code § 8-107 [1] [a]). In answering this question, we must be guided by the Local Civil Rights Restoration Act of 2005 (LCRRA), enacted by the City Council "to clarify the scope of New York City's Human Rights Law," which, the Council found "has been construed too narrowly to ensure protection of [*4]the civil rights of all persons covered by the law" (Local Law No. 85 [2005] of City of New York § 1). The LCRRA, among other things, amended Administrative Code § 8-130 to read:

"The provisions of this title [i.e., the New York City Human Rights Law] shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed."

The application of the LCRRA provision to this case is clear: we must construe Administrative Code § 8-107 (7), like other provisions of the City's Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible. We interpret the word "opposed" according to this principle, and conclude that the evidence supports a finding that both Albunio and Connors opposed discrimination against Sorrenti.

As to Connors, the case is easy. Connors filed a discrimination complaint on Sorrenti's behalf; there is evidence from which the jury could find that Hall knew of the complaint; and, after the complaint was filed, Connors was subjected to a series of adverse employment actions. Indeed, defendants, after arguing that neither Albunio nor Connors engaged in protected activity by advocating Sorrenti's transfer into the Youth Services section, concede that the filing of Connors's discrimination complaint in November 2002 was protected. Thus, as to Connors, defendants effectively give the case away, making only a perfunctory — and meritless — argument that the jury could not find that the actions taken against Connors were the result of his protected activity, or that they were adverse.

As to Albunio, the case is closer, because she had neither filed a discrimination complaint nor explicitly accused anyone of discrimination before she was ousted as commanding officer of the Youth Services section. Indeed, we see nothing in the record to support a finding that Albunio "opposed" discrimination before her October 31, 2002 meeting with Hall and Patrick. So far as the record shows, Albunio observed and listened to Hall's mistreatment of, and unfavorable remarks about, Sorrenti, but uttered no word of protest before October 31.

The record might, it is true, support a finding that, before October 31, Hall was displeased with Albunio and decided she should be removed from her command because she had recommended an applicant who Hall thought was gay. We do not suggest that, if that happened, Hall's conduct was either appropriate or legal, but we do not see how it can be called retaliation for opposition to discrimination. There is no evidence that Albunio knew, when she advocated Sorrenti's transfer, either that Sorrenti was or would be perceived as gay or that Hall was [*5]prejudiced against gay people. If Albunio was removed for being Sorrenti's advocate, she could perhaps have proved a violation of Administrative Code § 8-107 (20), which prohibits "discrimination against a person because of the actual or perceived . . . sexual orientation . . . of a person with whom such person has a known relationship or association." But Albunio brought no claim under that section of the City Human Rights Law.

Since her claim is limited to retaliation, she can prevail only if she shows that she "opposed" discrimination. She did so, if at all, only at the October 31 meeting [FN1]. At that meeting, Albunio reacted to Hall's criticism of her recommendation of Sorrenti by telling Hall that Sorrenti was the better candidate for the job and that "[i]f I had to do it all again, I would have recommended Sorrenti again." While she did not say in so many words that Sorrenti was a discrimination victim, a jury could find that both Hall and Albunio knew that he was, and that Albunio made clear her disapproval of that discrimination by communicating to Hall, in substance, that she thought Hall's treatment of Sorrenti was wrong. Bearing in mind the broad reading that we must give to the New York City Human Rights Law, we find that Albunio could be found to have "opposed" the discrimination against Sorrenti at the October 31 meeting.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs. The certified question is unnecessary and need not be answered.

Order, insofar as appealed from, affirmed, with costs, and certified question not answered upon the ground that it is unnecessary. Opinion by Judge Smith. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Decided March 31, 2011

FOOTNOTES
Footnote 1:Defendants might argue, but have not argued, that by the time of that meeting the decision to remove Albunio from command had already been made. The parties appear to assume, and we accept the assumption, that the jury could find a causal connection between the October 31 meeting and her removal from command.

Jo Haines, Executive Director of The International Dyslexia Association, Needs Your Help

Ms. Haines, Executive Director of The International Dyslexia Association, asks New Yorkers to rally behind reading teachers who are about to be laid off. See her email below.

Dear Friend,

In early March, the New York City Department of Education released a layoff plan that raises real concerns about the city's ability to serve students with learning disabilities. Included in the plan are cuts of up to 15% of licensed reading teachers. The cuts will effectively terminate any reading teacher with less than ten (10) years seniority. Although we believe that any cuts to education are wrong, the effect of these proposed cuts on public school children with reading disabilities will be quite serious.

We urge you to contact the DOE and your elected officials to let them know you oppose the plan. (See below for contact information.)

Cuts system-wide are 6%, but not every discipline will be impacted equally. Math and Science will experience only 3% cuts, whereas Reading is scheduled for the most severe cuts of 15%. Including reading in the group scheduled for the largest cuts fails to recognize the invaluable service which reading specialists provide classroom teachers and our most educationally vulnerable children.

Eighty five percent (85%) of all learning disabilities are reading disabilities. Reading Teachers are specifically trained to address those learning disabilities in one-on-one and small group settings. Despite the city's claim that Special Education will be exempt from layoffs, many reading teachers spend most of their time with students requiring special education. In fact, reading specialists working in District 75 (the special education district) are not exempt from these cuts and face termination.

Reading teachers are on the educational front lines not only with special education students but also with children with reading disabilities who have not been classified for special ed. services. Families unable to afford private tutors for their children will be most affected by these cuts. It is our belief that children with reading disabilities served by licensed reading teachers in New York City will be disproportionately harmed by the intended layoffs.

CONTACT THE FOLLOWING OFFICIALS and Your City Council Person:

Bill de Blasio
NYC Public Advocate
Municipal Building
One Centre Street
New York, NY 10007
212 669 7200
Deblasio@pubadvocate.nyc.gov

Cathleen P. Black
Chancellor
NYC Department of Education
Tweed Courthouse
52 Chamber Street
New York, NY 10007
212 935 2000
cpblack@schools.nyc.gov

Robert Jackson
Chairperson
NYC Council Committee on Education
250 Broadway
New York, NY 10007
212 234 0551
rjackson@council.nyc.gov

To locate and contact your council representative, visit http://council.nyc.gov/html/members/members.shtml

Sincerely,

Jo Haines
Executive Director
Int'l Dyslexia Association - New York
71 West 23rd Street #1527
New York, NY 10010
212-691-1930
jhaines@nybida.org
http://www.nybida.org/

Sol Stern on Reading

here is a comment on the above post that I received April 3:

Thanks so much for your article. I am one of the Reading Specialists who is slated to be laid off (I am in year 4). I am also an ATR, and have been told by my Chapter Leader and borough rep that the Reading License is "dead", that no one wants it anymore. I called the UFT District Office and was basically told to ty to work under my ELA 7 -12 (even though I have never worked under it and therefore would lose my tenure and be at year 0) because "you'll never find a Reading position - no one wants them and you'll be in the ATR pool forever." So I guess I spent $22,000 on a useless piece of paper and am considering shredding it and putting it in my cat's litter box. I am planning cram through a 36 credit course in administration since no one seems to want to let me do the work I love and am also extremely good at (I was excessed, with 2 other Reading Specialists) because all of the grade 7/8 level 1 kids got 2 or higher on the ELA two years ago. As a thank you, the City decided that the school no longer needed Reading classes and eliminated the Title 1 Reading funding. Some pat on the back, eh?

Anyway, thanks for acknowledging us. I'll still be on the unemployment line, my house up for sale, and my  kids' dance/piano/sports eliminated as keeping a roof over our heads becomes our main priority, but it's nice to know that someone noticed.

Mike Bloomberg On Paying Teachers (Not) And Buying Ed Technology To Replace Them (Teachers)

A conversation in the bull pen at City Hall, overheard by a co-worker, has been forward to me. Mike Bloomberg is evidently on a conference call with Richard Condon ("Dick"), Special Commissioner of Investigation, and Mecca Santana, director of the Office of Equal Opportunity at the NYC BOE's 65 Court Street address. "Theresa" is, of course, Theresa Europe of "The Gotcha Squad", and Howard Wolfson is "Counsel to the Mayor".

Theresa Europe

here is a summary of the conversation:

Mike Bloomberg :

"Darn it, I can control technology, but not those lazy, unprofessional high-paid senior teachers sitting around classrooms and doing nothing while their students fight each other and send sexually explicit texts on their iphones (that I banned). Dick, Mecca, I need you to get me the names of these principals who are not getting rid of tenured teachers fast enough. Get Cathie on board. Tell them they better get moving on sending incident reports to Theresa over at the "Gotcha Squad" - I hate that name, but you know the procedure - or there will be consequences. Oh, and the problem that we have with that music teacher from PS22, I forget his name, Gregg...Breinberg, thanks, for looking into getting something to use against him, he could blotch this whole campaign to get rid of senior teachers. Get moving on this and call Howard if you need anything from our buddies over at the News or Post, ok? But get moving, now.

Richard "Dick" Condon

DOE: Computers More Important Than Teachers, Schools

Mecca Santana

By Garth Johnston in News on March 30, 2011 5:35 PM 7

LINK

Mayor Bloomberg and the Department of Education have been talking constantly about the department's budget of late, insisting that they must end the "Last In, First Out" rule (perhaps you've noticed the ads occasionally running on Gothamist?) and putting out scary budget projection after scary budget projection in which they say that unless they get more aid they will have to do things like fire six percent of the city's teachers. So isn't it a little odd that the department is planning to spend more than half-a-billion dollars on technology improvements next year while simultaneously cutting $1.3 billion from its construction budget for the next three years?

As Manhattan Beep Scot Stringer wrote to Cathy Black last week, the numbers being bandied about by the DOE are “particularly large in the context of a fiscal crisis which the mayor reports is so dire that he may eliminate some 6,000 teaching positions.”

Now, to be fair, the state capital that is behind much of the technology funding is specifically not to be used for teachers salaries. But it can use those funds for construction costs. And considering the department has announced plans to cut its construction budget from $2 billion over the next three years to $642 million you'd think they could use the cash. Remember, the city is already lined up to spend $708 million just changing the lights in city schools over the next decade! Not to mention the fact that 3,200 children were put on wait lists for kindergarten this year.

So what is the DOE planning on using that tech money for exactly? Didn't they already put a computer in every classroom? Bandwidth, baby! Now that more and more schools are actually starting to use the computers and smart boards and whatnot that they've been installing over the years they are increasingly finding that their networks can't keep up. And that's not all. Other tech projects in the works include something called iLearn NYC (a $50 million online course management project) and expanding a program called the Innovation Zone, or iZone, in which the department has been testing out tech-intensive teaching methods in 80 schools. The mayor's office wants the program to be expanded to 400 schools by the end of Bloomberg's third term.

Now we recognize that being technologically up-to-date is important for children (or at least is important for their parents), but in our minds no technology matters as much as having a good teacher and a school for them to teach in.

Contact the author of this article or email tips@gothamist.com with further questions, comments or tips.

Bloomberg: There Could Be 21,000 Teacher Layoffs
By Ben Yakas in News on January 29, 2011 1:50 PM
LINK


With Gov. Cuomo's first budget proposal since taking office imminent, Mayor Bloomberg announced yesterday that city schools could be facing a $1 billion budget cut, which could spell massive teacher layoffs. On his WOR radio show yesterday, he raised the specter that as many as 21,000 teachers could lose their jobs this year: "Scuttlebutt is that the education budget will be cut statewide, and New York City's share of that would be a billion-dollar cut."

Bloomberg estimated that if the $1 billion cut is approved, the city would be forced to cut 15,000 teachers. That's in addition to the 6,166 teacher layoffs Bloomberg plans to make in the fiscal year beginning July 1, making for a loss of nearly a quarter of the 75,000 teachers employed by the Department of Education. Bloomberg lamented the unfairness of the layoffs, focusing on the rules requiring teachers hired last to go first: "We'd have to part company with some of the best teachers. It's a state law, 'Last in, first out.' There are great and terrible teachers at every level of experience and age...In the private sector, nobody would do 'Last in, first out.' You'd do it on the 'Who is the most productive.'"

The only teachers who would be immune to the cuts are those in special education, English as a second language and speech. The worst cuts would hit District 9, which includes the Highbridge section of the Bronx, who would lose 27 percent; schools in District 1, which includes Manhattan's lower East Side, District 10 and District 12, which include Riverdale and Tremont, would all lose 26 percent of their teachers. United Federation of Teachers President Michael Mulgrew criticized Bloomberg for supporting the end of the millionaires' tax in light of these developments: "I would hope the mayor would fight for the children. He has chosen that his millionaire and billionaire friends are much more important than the children in the schools of New York City."

The Issue Is: When You File An Article 78, Do You Have To File A Notice Of Claim Against The BOE?

Gebran v New York City Dept. of Educ.

2011 NY Slip Op 50486(U)
Decided on March 7, 2011
Supreme Court, Kings County
Schmidt, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
is opinion is uncorrected and will not be published in the printed Official Reports.

Nagib Gebran, Petitioner,

against

New York City Department of Education, Respondent.

19140/10
Petitioner's Counsel: Michael Rhode, PO Box 20021, Park West Finance Station
Respondent's Counsel: Corporation Counsel, 100 Church Street NY NY by James Hallman Esq.

David I. Schmidt, J.

Upon the foregoing papers, petitioner Nagib Gebran (Gebran) moves for a judgment:

(1) pursuant to CPLR 7803 (3), annulling the "Unsatisfactory" teacher's rating ("U" or U-rating) he received on the Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee for the 2007-2008 school year or changing the U-rating to a "C" or "S" rating (and removing three particular untimely letters in support [*2]of the rating from file);

(2) declaring said determination arbitrary, capricious, and without rational basis in the record; and

(3) pursuant to CPLR 7806, awarding actual compensatory damages incidental to the U-rating, up to and including the full salary petitioner might have earned during the 2009-2010 school year in the amount of $95,200, and the costs and disbursements of this proceeding.

Respondent the New York City Board of Education (the BOE) (a/k/a, s/h/a, d/b/a the New York City Department of Education) cross-moves for an order, pursuant to CPLR 7804 (f) and 3211 (a) (7), dismissing the Petition on the grounds that (1) the Petition fails to state a cause of action that the decision to issue petitioner a U-rating was arbitrary, capricious, or unlawful, and (2) petitioner has failed to file a timely notice of claim against the BOE pursuant to New York Education Law 3813 (1).

FACTS AND PROCEDURAL HISTORY

Gebran is a tenured teacher at the New Horizons School, M.S. 442 (New Horizons) in Brooklyn, New York, where he has taught since 1985. He never received any unsatisfactory ratings during his annual performance reviews until the 2007-2008 school year. He commenced this Article 78 proceeding against the BOE to annul or change the U-rating he received for the 2007-2008 school year. Petitioner alleges that during the past few years, his medical problems have caused him to suffer seizures and that respondent has not accommodated his disability.

In September 2007, Gebran suffered a seizure while teaching and his medical condition forced him to take an approved medical leave of absence, which ran from approximately October 2007 until February 1, 2008. Petitioner then suffered a second seizure during class on February 15, 2008, which forced him to take a second approved medical leave of absence from February 16, 2008 through the remainder of the school year.

The February 25, 2008 Letter

Prior to taking leave, petitioner was involved in various incidents during the 2007-2008 school year for which respondent wrote letters to his personnel file. A February 25, 2008 letter (the February 25th Letter, annexed as Exhibit A to respondent's cross motion) concerned an event that occurred on February 1, 2008, when the Principal of New Horizons and petitioner's rating officer, Marylou Aranyos (Principal Aranyos), observed petitioner playing chess with his students during what should have been an instructional science class. The letter refers to a conference on February 7, 2008 that petitioner attended with union representative Lisa Merill to discuss the incident on February 1st. According to the letter, when asked why he engaged in this activity during instructional hours, Gebran responded, among other things, that he and his co-teacher had mutually agreed that chess would be a [*3]good incentive and motivation and that he had told his students they could play chess as a reward during the second portion of the two-period science class if they behaved. Gebran also testified that he was hired partly for his specialized knowledge of chess, which the school administration purportedly knew Gebran would be using to help teach math and science, given that Gebran possessed a patent on a chess set which combined chess with math and science.

Principal Aranyos concluded in the February 25th Letter that petitioner was in fact playing chess with his students during a scheduled science class. She called petitioner's behavior "unacceptable and unprofessional," and warned that such misconduct could "lead to further disciplinary action including an unsatisfactory rating and disciplinary charges that could lead to termination of [his] employment."


The September 11 and 12, 2008 Letters

Petitioner was also involved in various incidents on February 12, 13, and 14 that occurred during the 2007-2008 school year, prior to taking his medical leave. According to respondent, those matters could only be addressed when petitioner returned from leave, and petitioner was thus given a "C" rating in the interim for the 2007-2008 school year (see 2008 Annual Professional Performance Review, dated June 12, 2008, annexed as Exhibit 2 to the Petition). Petitioner claims that he never received the original rating form until after the BOE Hearing on January 5, 2010 (discussed further below) and was never informed that he was initially given a "C" rating.

Upon Gebran's return to teaching in September 2008, Principal Aranyos resumed her investigations into those incidents. Once complete, letters concerning the incidents were added to petitioner's file. First, respondent added to petitioner's file a letter, dated September 11, 2008 (the September 11th Letter, annexed as Exhibit 10 to the Petition), which related to the incidents on February 12 and 13. The September 11th Letter first addressed an incident on February 12th, in which petitioner tore up a student's test paper in front of the entire class and threw it in the garbage because the student was allegedly misbehaving. It also discussed an incident on February 13th, in which petitioner similarly tore up a second student's test in a different class that he taught.

After reviewing the allegations of both the February 12 and 13 incidents and the statements made at the September 5th Meeting (discussed further below), Principal Aranyos concluded that petitioner did in fact tear up both students' exams and throw them in the garbage, and that he also yelled at the student during the latter incident. In the September 11th Letter, Principal Aranyos indicated that "[petitioner's] actions created a serious endangerment to the students involved" and that "[petitioner] failed to utilize the ladder of referral which mandated that [he] contact the Dean if [he] was having problems with students [as outlined in the school handbook]."

Respondent submitted a second letter for petitioner's file, dated September 12, 2008 (the September 12th Letter, annexed as Exhibit 12 to Petition), which related to an incident on February 15, 2008 and referred to petitioner's "failure to follow proper procedure." The [*4]letter stated that petitioner left the school building fifty minutes early on February 15, 2008 without notifying Principal Aranyo or obtaining permission. According to the letter, Principal Aranyo apparently went to speak with Gebran in his classroom at about 1:30 p.m. on that date and was informed by his co-teacher that petitioner had put on his coat and stated that he would not be returning to school for the remainder of the year.

However, according to petitioner, he had suffered a seizure that day. He claims that he did not leave school early, but instead went to the teacher's lounge during the last period of the day, which was a scheduled "prep period" for him. Because he suspected that Principal Aranyos was harassing him for his seizures, he went to her office to request a meeting with his union leader and an attorney. In response, she "unnecessarily and improperly started yelling and screaming, help, security' when discussing the incident with [him]."

Both the September 11th and 12th Letters advised that his misconduct could "lead to further disciplinary action including an unsatisfactory rating" as well as termination of employment. Both letters also referenced a meeting on September 5, 2008 (the September 5th Meeting) which was attended by petitioner, Lisa Reiter (Reiter), his union representative, Principal Aranyos, and Assistant Principal Deanna Diable (Diable) to discuss the incidents that had occurred on February 12-14 and subsequent allegations of misconduct. The letters further explained that the meeting could not be held sooner because school was on mid-winter recess during the week of February 18, 2008, and petitioner was out on approved medical leave from February 25, 2008 through the remainder of the school year.

Petitioner's Grievance Re: the September 11th and 12th Letters

Petitioner filed a grievance on or about September 25, 2008, claiming that his rights pursuant to the collective bargaining agreement (the CBA) between the United Federation of Teachers (the UFT) and the BOE had been violated when the September 11th and 12th Letters were placed in his file over three months after the incidents occurred and well after the close of the school year. On or about October 2, 2008 (the October 2nd Meeting), petitioner and Reiter met with Principal Aranyo to discuss petitioner's grievance. In a letter dated October 2, 2008 (the Grievance Denial Letter), Principal Aranyo denied petitioner's grievance, stating, "I deny your grievance because I was unable to meet with you before September of 2008 since you were out of school on an unpaid medical leave of absence from February 23, 2008 through the end of the year."

Gebran appealed the grievance denial pursuant to the procedures in the CBA, and had an opportunity to be heard at a conference held on or about October 23, 2008 (the Grievance Conference). At the hearing, petitioner and his UFT representative, Arthur Solomon, argued that the BOE had violated the CBA because the letters regarding the February 2008 incidents were not added to petitioner's file within three months of their occurrence, as required under Article 21 (A) (1) of the CBA. However, Chancellor Joel I. Klein (Chancellor Klein) of the [*5]BOE denied the grievance in a letter, dated November 5, 2008, concluding that the school's administration was unable to investigate the incidents within three months because Gebran took a medical leave of absence immediately following the incidents (see Grievance Decision, annexed as Exhibit 9 to Petition). He further reasoned that, consistent with the objective of the three-month deadline to prevent delay in preparing materials to be placed in a personnel file, "the administration did not delay in that [Principal Aranyo] acted in an expeditious manner as soon as [petitioner] returned to work" (id.).

The UFT chose not to invoke arbitration under the provisions of the CBA to further challenge the BOE's decision to deny petitioner's grievance, but petitioner appealed the UFT's decision not to pursue arbitration. After hearing the appeal, the UFT still was not persuaded that petitioner's grievance merited arbitration, and opined that the administration acted properly in waiting until petitioner returned from medical leave to hold a meeting before writing a letter to his personnel file.

The December 12, 2008 Letter

The last letter in petitioner's file on which this proceeding is based is dated December 12, 2008 (the December 12th Letter, annexed as Exhibit 13 to Petition) and relates to petitioner's excessive absences. The letter states that petitioner was absent from work fifteen times during the 2007-2008 school year, specifically excluding the time periods from October 16, 2007 to January 31, 2008 and February 25, 2008 to June 30, 2008, when petitioner was on approved medical leave. At a conference on September 19, 2008 to discuss those absences, however, petitioner, who was again accompanied by Reiter, claimed that the absences were all "medically certified absences." After reviewing his attendance history and considering his responses at the conference, Principal Aranyo determined that his absences were "excessive as defined by the attached School Attendance Policy . . . [which] states that five or more absences per semester (10 or more per year) are considered to be excessive and will be reviewed for rating purposes." Gebran refused to sign the letter in acknowledgment.

The U-rating and the BOE's Determination

On or about December 16, 2008, petitioner received an amended U-rating on his 2008 Annual Review, with individual U-ratings in eleven out of the possible twenty-three qualities and skills categories. As Aranyo retired from the BOE sometime in December 2008, Diable signed and dated the amended rating form with her own name when she became principal during mid-December 2008. However, she later testified that the manner in which she signed the form was a mistake; she conceded that she should have instead signed former-principal Aranyo's name and included her own initials, since the former principal was the person that instructed her to issue the U-rating. When Diable presented the rating sheet to petitioner during an instructional period, he refused to sign it.

Petitioner challenged the U-rating and the placement of the supporting letters in his personnel file, but his grievance was denied after a hearing, pursuant to Section 4.3.2 of the New York City Department of Education Bylaws, which took place on or about January 5, 2010 (the BOE Hearing). The union declined to invoke arbitration for his grievance. [*6]Petitioner appealed to the Chancellor's Committee, but it denied his appeal and sustained the U-rating. The Deputy Chancellor, as the Chancellor's designee, adopted that recommendation on May 3, 2010, affirming the June 2008 decision to issue petitioner a U-rating for the 2007-2008 school year as a result of his poor professional performance and excessive absences (the Final Determination, annexed as Exhibit 1 to the Petition).

On or about August 10, 2010, petitioner commenced the instant Article 78 proceeding seeking to annul the December 16, 2008 U-rating he received for the 2007-2008 school year. Currently, petitioner is still away on medical leave.

THE PARTIES' CONTENTIONS

Initially, Gebran suggests that Chairperson Stephen Hinds (Chairperson Hinds), the hearing officer who presided over the BOE Hearing on January 5, 2010, was impartial because he pursued a cross-examination of petitioner and his union representative by himself, even though Diable declined to conduct any questioning of petitioner. Petitioner asserts that he worked a total of only five weeks during the 2007-2008 school year due to his medical problems, and should have been rated a "C," which he suggests is the appropriate rating used to rate teachers who could not be properly rated. Moreover, he contends that the "U" rating for the 2007-2008 school year was arbitrary and capricious because three of the four letters (the September 11th and 12th and December 12th Letters) on which the U-rating was based were not admissible, given that they were placed in his file over three months after the corresponding incidents occurred, and should be removed from his file as violative of Article 21 (A) (1) of the CBA. He further maintains that the rating was untimely because it was given to him six months after the end of the school year in question, rather than within the last four school days to ten days of the school year, as delineated in the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7).

Petitioner then argues that the U-rating was not properly authorized because it was unclear whether Aranyos or Diable was the principal on the date the rating was rendered. Also, he challenges the U-rating because he was not formally observed during that period and given the limited time that he was at work during that year. As a backdrop, he asserts that respondent allowed a work environment intolerant and hostile to his medical condition to exist and failed to provide the proper accommodations for his medical condition as required by law. Finally, petitioner argues that he should be awarded compensatory damages incidental to the U-rating, upon annulment of the U-rating, because he had to take multiple unpaid Leaves of Absence for Restoration of Health in 2009 and 2010 in order to avoid working in a hostile and stressful environment at New Horizons, and because the "U" on his record made it difficult or impossible for him to transfer to another school.

The BOE cross-moves to dismiss the Petition, arguing that it fails to state a cause of action for annulling the U-rating, since it was supported by a number of letters regarding various incidents during the 2007-2008 school year. In that respect, the BOE asserts that, although petitioner disagrees with the account of the incidents and resulting letters, he does not dispute the fact that the U-rating was based substantially on those letters. Respondent [*7]further indicates that, although the Petition alleges that the BOE improperly allowed the letters regarding the February incidents to be added to petitioner's file, it does not deny that the incidents of unprofessional conduct occurred. With regard to petitioner's claims that the amended U-rating was untimely issued, respondent avers that the deadlines cited by petitioner in the handbook "Rating Pedagogical Staff Members" (the Ratings Manual, annexed as Exhibit 6 to Petition) are not mandatory. Lastly, the BOE contends that petitioner's claims are barred because he failed to file a timely notice of claim pursuant to Section 3813 of the Education Law within three months of the BOE's Final Determination on May 3, 2010.

Petitioner opposes respondent's cross motion on the grounds that he has indeed filed an application to extend the time to serve the notice of claim by seven days to August 10, 2010 by requesting that the court deem, nunc pro tunc, his Petition a notice of claim. In any event, petitioner maintains that he seeks to vindicate certain public interests which preclude him from having to comply with the notice of claim requirements under Education Law � 3813. He avers that his rating was not authorized to be amended by anyone other than the designated rating officer for the 2007-2008 school year, and that such an issue qualifies as a constitutionally protected right to continued employment.

DISCUSSION

At the outset, the court first addresses the BOE's cross motion to dismiss the Petition based on petitioner's failure to file a notice of claim within three months after the accrual of his claims. Section 3813, subdivision 1, of the Education Law provides, in relevant part:

"1. No action or special proceeding, for any cause whatever ... shall be prosecuted or maintained against any school district, board of education, [or] board of cooperative educational services . . . or any officer of a school district, board of education, [or] board of cooperative educational services ... unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action . . . is founded was presented to the governing body of said district ... within three months after the accrual of such claim, and that the . . . body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment."

As the Court of Appeals has interpreted the statute, "[t]he Legislature has spoken unequivocally that no action or proceeding may be prosecuted or maintained against any school district or board of education unless a notice of claim has been presented to the governing body,' and this court may not disregard its pronouncement" (Parochial Bus Sys., Inc. v Bd. of Educ., 60 NY2d 539, 549, [1983] [citations omitted]). The petitioner bears the burden of pleading and proving that he or she filed a notice of claim within three months after the accrual of his or her claim (see C.S.A Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189, 192 [2005]; Stoetzel v Wappingers Cent. School Dist., 166 AD2d 643, 644 [1990]). Although the failure to present notice of a claim within ninety days of its accrual is generally a fatal defect, an exception has been carved out for actions which seek [*8]vindication of a public interest, as opposed to actions that seek the enforcement of private rights (see Biggers v Brookhaven Comsewogue Union Free School Dist., 127 F Supp 2d 452, 455 [SDNY 2001], citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, 379 80 [1974]). Thus, a notice of claim pursuant to Education Law § 3813 (1) is not a condition precedent to an Article 78 proceeding seeking to vindicate a public interest (see Matter of Cayuga Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 400 [1996]; Kight v Wyandanch Union Free School Dist., 84 AD2d 749 [1981], affd 56 NY2d 606 [1982]). Although "[a]ll actions brought to enforce civil rights can be said to be in the public interest" (Mills v County of Monroe, 59 NY2d 307, 311, [1983], cert denied, 464 US 1018 [1983]), "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group" are deserving of special treatment, such as relief from the notice requirement (see Id. at 311-12).

Here, the BOE's Determination affirmed petitioner's U-rating on May 3, 2010, and petitioner was required to file a notice of claim no later than August 3, 2010, which was three months after his claims regarding the U-rating accrued. However, petitioner has not proven that he filed a notice of claim at any time prior to commencing this proceeding. First, petitioner's argument that he is not bound by the notice of claim requirement lacks merit. In his Petition, Gebran seeks a monetary award of $95,200 in actual compensatory damages for the full salary petitioner might have earned during the 2009-2010 school year, as well as costs and disbursements, and "[s]uch other relief as this Court may deem just and proper." Courts have consistently held that where a party demands money damages they are seeking "resolution of a private dispute and not the vindication of an important public right" (Hermele v Union Free School Dist. No. 23,167 AD2d 512 513 [1990]; Matter of McClellan v Alexander Cent. School Bd. of Educ., 201 AD2d 898, 898-899 [1994] [where petitioner sought the vindication of his private rights to back pay and benefits, in addition to his reinstatement as a vindication of a public interest, he was not exempt from the notice of claim requirements under Education Law � 3813]; Matter of Vail v Board of Coop. Educ. Servs., 115 AD2d 231 [1985]; W v City of New York, 24 Misc 3d 1224[A], 2009 NY Slip Op 51606[U], *8 [2009]). Although petitioner argues that the discriminatory nature of his claims, generally, is relevant to the public interest, this action seeks relief only for claims relating to his U-rating, and the money damages sought are to redress his own lost wages. "Inasmuch as the disposition of plaintiff's claim was not intended to nor could it directly affect or vindicate the rights of others, [his] action is properly characterized as one seeking the enforcement of private rights" (Mills, 59 NY2d at 312). Therefore, petitioner is not exempt from the notice of claim requirements under Education Law § 3813 (1).

Gebran then requests in his Application to Extend the Time to Serve a Notice of Claim that the court extend his deadline by seven days to August 10, 2010 and treat his Petition as a notice of claim. However, that application was not made until approximately November [*9]26, 2010.[FN1] In any event, where an application for leave to file a late notice of claim is timely, the court has discretion to extend the time for petitioner to file a notice of claim, as long as such an extension would not exceed the four-month statute of limitations applicable to Article 78 proceedings (see Education Law § 3813 [2-a], [2-b]), which the extension herein would not.[FN2] Insofar as petitioner requests that the court deem the Petition a notice of claim, courts have stated that a defendant is put on notice of claims asserted against it when the essential elements thereof are communicated to the defendant, including the nature of the claim, the time when, the place where, and the manner in which the claim arose (see Parochial Bus Sys. v Bd. of Educ. of City of New York, 60 NY2d 539, 547 [1983]). Indeed, the Petition sufficiently alerts the BOE of these matters. Petitioner did not actually request leave until November 2010, and moving for leave to file a late notice of claim after the deadline's expiration may be considered untimely and fatal (see e.g. Tarquino v City of New York, 84 AD2d 265 [1982][untimely where leave to file a late notice of claim was not sought until almost four years after the subject accident, well beyond the ninety-day deadline for filing a notice of claim pursuant to General Municipal Law � 50-e in an action against the city]; Colon v City of New York, 116 Misc 2d 729, 731-732 [1982] [untimely where leave was not sought until nearly two years after the subject accident]). However, in light of petitioner's relatively short seven-day delay for providing respondent with actual notice, relatively short three-month delay for seeking leave, the sufficiently descriptive Petition which Gebran adequately served on respondent (see Pope v Hempstead Union Free School Dist. Bd of Educ., 194 AD2d 654, 656 [1993]), and the lack of substantial prejudice to respondent, the court will nevertheless consider the Petition sufficient to satisfy Gebran's statutory duty to provide respondent with notice of its claims (see Gelish v Dix Hills Water [*10]Dist., 58 AD3d 841, 842 [2009] [where serving notice of claim less than one month after the ninety day deadline was considered a reasonable and minimal delay that did not cause substantial prejudice]).

Turning to the merits of the Petition, under CPLR 7803 (3), the relevant question is "[w]hether a determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." Judicial review of an administrative determination brought by an Article 78 proceeding is "limited to the evaluation of whether that administrative determination is consistent with lawful procedures, whether it is arbitrary or capricious, and whether it is a reasonable exercise of the agency's discretion" (Matos v Hernandez, 10 Misc 3d 1068[A], 2005 NY Slip Op 52188[U], at *2-3, citing Matter of Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222, 230-231 [1974]). Thus, a court may disturb a respondent's actions only if they were either arbitrary and capricious or lacked a rational basis (see Matter of Hughes v Doherty, 5 NY3d 100, 105 [2005] ["(u)nless the administrative agency's determinations were arbitrary or capricious, a court should not undermine its actions"] [internal citations omitted]; Matter of Pell, 34 NY2d at 231["where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination"] [internal citations omitted]). "A rational or reasonable basis for the agency's determination exists if there is evidence in the record to supports its conclusion" (see Gill v Hernandez, 22 Misc 3d 390, 394 [2008], citing Sewell v New York, 182 AD3d 469, 473 [1992]). If the administrative determination is determined to be rational, the court must defer to the agency's interpretation of its own regulations in making its determination; however, if the court finds that the agency determination is rational, it may not substitute its judgment for that of the agency (see Howard v Wyman, 28 NY2d 434, 438 [1971]). Judicial review of an administrative determination is so deferential that courts have said the administrative determination "must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law'" (Mayes v Hernandez, 17 Misc 3d 1140[A], 2007 NY Slip Op 52351 [U], *4 [2007], citing Featherstone v Franco, 95 NY2d 550, 554 [2000]).

The Ratings Manual, which incorporates the Regulations of the Chancellor Regarding Ratings (former Bylaw Section 89.7) and has been upheld as binding law (see Budnick v New York City Dept. of Educ., 25 Misc 3d 1235[A], 2009 NY Slip Op 52425[U] [2009]; Smith v Board of Educ. of City School Dist. of City of NY, 18 Misc 3d 192 [2007]), states that "[w]ithin the last ten (10) days of each school year and not fewer that four (4) school days prior to the close thereof, the principal of each school shall give to each member of his/her staff a signed statement characterizing his/her work as Satisfactory or Unsatisfactory." Similarly, Article 21 (A) (1) of the CBA provides that "an incident which has not been reduced to writing within three months of its occurrence, exclusive of the summer vacation [*11]period, may not later be added to [a teacher's] file." Petitioner challenges the BOE's Final Determination as arbitrary and capricious because both the U-rating as well as the letters on which they were based were allegedly untimely: the "U" was issued in December 2008 (approximately six months after the end of the 2007-2008 school year for which petitioner was being rated), and the September 11th and 12th and December 12th Letters were placed in petitioner's file seven and ten months after their corresponding incidents, respectively.

Given the great deference afforded to administrative determinations, the court finds that "it [was] a reasonable exercise of the agency's discretion" (Matter of Social Serv. Empls. Union, Local 371 v New York City Bd. of Collective Bargaining, 47 AD3d 417, 418 [2008]) for the BOE to base its issuance of petitioner's U-rating on the September 11th and 12th and December 12th Letters, even though those letters were purportedly untimely. Upon petitioner's return to teaching the following school year, the BOE acted expeditiously to investigate and place letters regarding petitioner's incidents and absences in his file. Furthermore, the court agrees that the BOE's decision to toll the time period for investigating and placing the letters in petitioner's file, due to petitioner's taking of medical leave for the remainder of the 2007-2008 school year, was entitled to deference (see Red Apple Child Dev. Ctr. v Chancellor's Bd. of Review, 307 AD2d 815, 815 [2003] [where a rational basis exists, administrative agency's construction and interpretation of its own regulations are entitled to deference]; Powers v City of New York, 262 AD2d 246, 246 [1999] [same]).[FN3] In turn, the BOE similarly tolled the issuance of petitioner's rating until the underlying pending investigations and letters were finalized. The September 11th and 12th Letters found that Gebran had torn up two students' test papers during class (while yelling during the latter incident) and left the school building early without notifying Principal Aranyos or obtaining her consent. Similarly, the December 12th Letter found that his absences were excessive as defined by the school attendance policy. In the court's analysis, the letters provide ample rational basis for the Chancellor's Committee to conclude that Gebran's professional performance and attendance record were unsatisfactory, and for the court to conclude that the issuance of petitioner's U-rating was not arbitrary and capricious.

Additionally, petitioner's argument that the BOE's Final Determination must be [*12]annulled because Chairperson Hinds was impartial during the BOE Hearing is unavailing. Although petitioner claims that Chairperson Hinds improperly did not allow petitioner to question Diable regarding her statement that Principal Aranyos told her to issue the U-rating, petitioner presents no evidence of any such bias or predisposition against his favor. Thus, his allegations do not provide a insufficient basis to set the determination aside (see Chadha v County of Nassau, 248 AD2d 465, 466-467 [1998]; Kelsch v Walsh, 180 AD2d 683, 684 [1992]).

Petitioner's request for actual compensatory damages are also unpersuasive and moot.

Accordingly, petitioner's application for judgment pursuant to CPLR Article 78 annulling the BOE's Final Determination is denied and the Petition is dismissed. The court has considered petitioner's remaining arguments and finds them to be without merit.

The foregoing constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1: Petitioner additionally requested such leave in his reply papers, which is also improper (see Gover v Savyon, 26 Misc 3d 1124[A], 2009 NY Slip Op 52746[U], *4 [2009]; Tray Wrap, Inc. v Pacific Tomato Growers, Ltd., 18 Misc 3d 1122[A], 2008 NY Slip Op 50156[U], *21 [2008]).

Footnote 2: Education Law § 3813 (2-a) further provides that,

[i]n determining whether to grant the extension, the court shall consider, in particular, whether the district or school or its attorney or its insurance carrier or other agent acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter . . . [and] all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the district or school or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the district or school against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the district or school in maintaining its defense on the merits."

Footnote 3: Contrary to petitioner's contentions, although the December 12th Letter was not placed in petitioner's file until a few months after the beginning of the 2008-2009 school year, this court cannot revisit the issue of its timeliness, since that was already determined at the time the Chancellor's Committee made its Final Determination. Likewise, the court may not revisit the determinations of whether respondent's informal observations in lieu of formal reviews were sufficient; whether Diable's issuance of the amended rating was legitimate; or whether petitioner received criticism or guidance after the incidents. Such matters are best determined by the relevant agency, to whose knowledge and experience the court must defer (see Trump on Ocean, LLC v Cortes-Vasquez, 76 AD3d 1080, 1093 [2010]; City of New York v Novello, 77 AD3d 514, 515 [2010]).

Unions Are Good, Union Leadership Maybe Not

Why I Love Unions, But Not Always Their Leadership
by Liza Campbell
LINK

There is no shortage of fights to be fought on the education front here in New York and nationally. The Panel for Educational Policy continues to vote to close public schools and to colocate them with privately run education entities known as charter schools, whose backers often come from the business world. There is an intense national push for more teacher accountability, which translates for me and many of my fellow teachers into an increased focus on test scores, data, and merit pay. And there’s the attack on public worker unions, which provide one of the few venues in which workers can still have a collective say in governmental policies and in their working conditions, working hours, and job security.


While we teachers often find ourselves fighting against misguided reforms, there’s also a lot to fight for. As the largest local teachers union in the country, the United Federation Teachers here in New York has the ability to have an incredible impact on education and the direction of education reform. We could be building grassroots support for reforms that would transform education, including culturally responsive curriculum, smaller class sizes, parent and teacher empowerment, the alleviation of poverty-related factors that affect learning, and creating classroom environments that put critical thinking instead of test prep at the forefront.

Research and analysis have repeatedly demonstrated that the reforms listed in the first paragraph do not benefit students. It should seem obvious then, to most informed individuals, that teachers unions would be doing serious work on the ground to mobilize teachers in the fight against them. And of course they would be clearly presenting a positive alternative that could actually transform teaching and learning. This is why I love unions: They provide an opportunity for working people to have a significant voice in these matters, and they can organize their members in support of good policies and against bad ones.

And yet for some reason the Unity Caucus that leads the UFT, which has had practically unchallenged control over the union for decades, is not fighting in a way that so many people wish they would. They have chosen not to come out strongly against charter schools, which concerns me and and many others who are wary of the spread of charters as a privatizing tactic that has already begun to change the very nature of our public school system. On the contrary, they have started two of their own charter schools that occupy space in public school buildings. They have repeatedly undermined teacher protections and due process rights. The former president of the UFT and current president of the national AFT, Randi Weingarten, most recently said she would support the dismissal of tenured teachers without due process using a rating system that includes faulty test scores. Instead of capitulating to corporate-minded reformers who are pursuing these ill-advised changes, she should be arguing firmly that the focus on this small percentage of “bad teachers” is hugely misguided and a serious waste of resources that could be going into improving our schools.

Just as significantly, the UFT leadership has not adequately mobilized its members or galvanized school chapters to unite with parents and fight these misguided reforms. Instead, Unity continues to practice a failed method of preserving their seat at the table by capitulating, and of hoping that the Democrats whom they support with endorsements and finances will side with teachers and students. Too often the union relies solely on the legal system and the hope of a DOE error somewhere in order to try to stop the destruction of the public schools.

I’ve attended several Delegate Assembly meetings where members have brought up resolutions and essentially begged the leadership to do more to mobilize the base, to very little avail. The question I ask myself regularly is: Why are we, as a union, not fighting? Does the leadership not see mobilizing teachers and parents as a viable strategy? Does it not want to fight corporate reforms? Are UFT officials scared of losing control of the rank and file if the leadership makes a concerted effort to support us in organizing ourselves? I have been in far too many conversations, including two this past weekend at the NYCORE conference, where people have suggested their own theories about the true answer to the question, “why are they not really fighting?”

At the most recent meeting of the Grassroots Education Movement we were lucky enough to be joined by Rafael Feliciano, president of the teachers union of Puerto Rico. He shared some lessons from his union’s struggle against union-busting and privatization, and the lesson that resounded with me most profoundly was the need for continued and consistent organizing with teachers, students and parents at the very local, school-based level. He said that as the president of the teachers union he viewed the union’s role as supporting the individual actions of school communities to agitate around each school’s concerns. He said he would field calls from union leaders in an individual school who would say “we don’t have working toilets and parents are upset,” or, “we don’t have adequate books and the community wants to hold an action.” His response would be, “Do it! Organize it and we will support you and your parents in every way we can.”

The Unity Caucus leadership of the UFT doesn’t seem to take on a role that even closely resembles this kind of an organization. Their strategy focuses heavily on endorsing and depending on the support of politicians and while they pay lip service to fighting these corporate reforms they don’t seem to want to do the ground work to organize around the fights. This is particularly surprising considering the climate in education right now wherein so many teachers are simply itching to counter the attacks against them.

At a friend’s school the Unity-aligned chapter leader told her staff that they should not be involved in Fight Back Friday. The Fight Back Friday in my school, for the record, was amazing. Nearly every member of the staff participated, and at the end of the day we had over a quarter of our staff speaking to parents, students and community members at the nearby subway stop about why our schools need more teachers and resources, and about why teacher protections protect students. Nearly everyone we spoke to was supportive of teachers, and it led to some great conversations that never would have happened had teachers not taken it upon ourselves to educate, organize, and mobilize.

While the UFT leadership organized for a turnout against school closings at a Panel for Educational Policy meeting in January and then walked out of the meeting, it has done no sustained mobilization against the destructive school closings policy. Schools will close as planned unless something is done. I was one of the organizers of the large anti-school closings rally in January which UFT delegates voted to support, and yet Unity did nothing more than bury an announcement of the rally at the bottom of its weekly email update to chapter leaders.

Schools that are facing co-location of a charter school in their building that will take away resources and space for enrichment find little to no help from the UFT leadership. In fact, many of these schools reach out to GEM for support, and we have created a collection of resources to provide support and advice on fighting both school closings and co-locations.

GEM is a small (but growing!), unfunded group of dedicated educators, parents, and concerned citizens. Without question the union has significantly more resources at its disposal to organize, educate and mobilize around these issues. If the union would help schools fight these attacks by organizing something like Fight Back Friday across the city, imagine what kind of impact that could have. Instead of thirty schools, Fight Back Friday could be happening in hundreds of schools. Instead of talking to hundreds of parents and community members, in one day teachers could be talking to tens of thousands.

Unions, as a collective representation of working people, can be an incredibly powerful counter-force to corporate interests. Individual working people can have very little impact on policy because they do not have the financial prowess on their own to affect national policy the way those with a good deal of money at their disposal can. I am proud to be a member of a union, and I am very proud of my fellow UFT members. But when union leadership becomes too far-removed from the lived reality of their rank-and-file members and spends a significant amount of their time with the very people who are pushing the policies they should be fighting, they run the risk of losing sight of their mission. If the UFT had a leadership with a social justice orientation that viewed its role as strengthening educators’ ability to educate and mobilize against misguided reforms, then I would not only be proud of my union but proud of its leadership as well.

Court of Appeals Decision on Matson v NYCBOE, City of NY, and Richard Condon Describes The Legality of Suing The "Board"

I am posting the decision of the Court of Appeals for the 2nd Circuit below for everyone who is thinking about suing the NYC Board/Department of Education (now, who would do that?). i have written about the legal fraud of the Bloomberg administration for years, and one of the signposts that you can gage this deceit from, is the New York City Law Department (Corporation Counsel) insistance that no one can sue the NYC "Board" of Education. But, Bloomberg paid millions of dollars to change the name of the Board of Education on the stationery, not legally so that the NYC Department of Education became a separate agency.

Also, the case below presented, I think, an interesting argument on the right to privacy and the office of the secret police - oops, i mean Special Commissioner of Investigation, Richard Condon.

Betsy Combier

UNITED STATES COURT OF APPEALS
MATSON v. BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF NEW YORK

Dorrit MATSON, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF NEW YORK, The City of New York, Richard J. Condon, Defendants-Appellees.

Docket No. 09-3773-cv.
LINK
Argued: Aug. 25, 2010. -- January 11, 2011

Before MINER, CABRANES, and STRAUB, Circuit Judges.

Barry D. Haberman, New City, NY, for Plaintiff-Appellant.Ronald E. Sternberg, (on behalf of Michael A. Cardozo, Corporation Counsel of the City of New York, Leonard Koerner, and Christopher A. Seacord, of counsel), New York, NY, for Defendants-Appellees.

Plaintiff-appellant Dorrit Matson appeals from a judgment entered in the United States District Court for the Southern District of New York (Crotty, J.), dismissing, pursuant to Federal Rule of Civil Procedure 12(b)(6), her civil rights action, brought under 42 U.S.C. § 1983, against defendants-appellees, the Board of Education of the City School District of New York (the “BOE”), the City of New York (the “City”), and Richard J. Condon (collectively, the “defendants”). In the action, Matson alleged that the BOE had publicly disclosed that she suffers from fibromyalgia, in violation of her constitutional right to privacy. The disclosure occurred when, in connection with an investigation of her purported use of sick leave, the BOE made available to the public on the website of the Special Commissioner of Investigation for the New York City School District (“SCI”) a report that included Matson's medical condition. On appeal, Matson claims: (1) the District Court erred in concluding that she failed to establish that the defendants' disclosure of her medical condition implicated a protected privacy interest; (2) the District Court incorrectly found the BOE to be an improper party; and (3) the District Judge should have recused himself, pursuant to 28 U.S.C. § 455.

For the reasons that follow, we affirm.

BACKGROUND

I. Matson as Teacher and Conductor

Matson was employed as a music teacher at Bayard Rustin Educational Complex (“Bayard Rustin”), a Manhattan public school. She also founded and served as director and conductor of the New York Scandia Symphony (the “Scandia Symphony”), an orchestra based at Trinity Church in lower Manhattan. Beginning in at least 2003 and continuing through February 2005, Matson began taking sick leave from her duties as a music teacher. Her multiple requests for sick days did not go unnoticed by Bayard Rustin's administration.

In November 2004, after Matson had requested three days of sick leave, Bayard Rustin's principal, John Angelet, reminded Matson by telephone that she was scheduled to direct a school orchestra concert that week. Matson nonetheless insisted that she needed the sick leave and that she would have to miss the school orchestra concert because she was ill. She subsequently took the sick leave that she had requested. After Matson returned to school, Angelet confronted her. He stated that he knew Matson had conducted the Scandia Symphony's concert while on sick leave because he had heard the performance broadcast on public radio. Matson, in response, “after a period of silence ․ asked the principal to deduct the days from her pay and then inquired whether Angelet ‘knew what it was like to conduct a concert ill.’ “

In January 2005, Matson was away from school on authorized medical leave for “continued therapy for recurrent bacteria infection.” During her absence, Angelet filed a complaint with the DOE's legal department, accusing her of “theft of services.” An assistant principal at Bayard Rustin also took action, informing Condon, the SCI, that he suspected that Matson was improperly claiming sick leave in order to work as a conductor of a symphony orchestra at Trinity Church. Condon subsequently began an investigation.

In February 2005, Matson submitted an Application for Leave Without Pay for Restoration of Health (the “Application”), which was marked as confidential. Her Application was granted for a period from February 5, 2005, through June 30, 2005, and “was approved by the principal based on the physician's certification section completed by an unnamed doctor with an illegible signature.” According to the physician's certification, Matson suffered from fibromyalgia, which involves “neck, shoulders, and upper and lower back pain.”1

After Matson submitted her Application, SCI investigators visited the office of the physician whose address was listed on the certification and spoke with the office manager for Dr. Tsai Chung Chao, who had completed the physician's certification for Matson's request for leave. Chao verified that the signature on the physician's certification was his. Chao later spoke to one of Condon's investigators by telephone and explained that Matson suffered from fibromyalgia, a condition brought on by physical or emotional stress. He added that Matson had complained that her professional relationship with school administrators was strained and caused her stress. Chao informed the investigator that Matson needed time off from her DOE position but explained that she could be able to conduct an orchestra-even though she was suffering from fibromyalgia-because she would be away from the environment which caused the stress that resulted in the onset of her condition.

Following his investigation, Condon issued a letter report on August 16, 2005, (the “Report”) to then New York City School District Chancellor Joel I. Klein confirming that Matson had repeatedly taken paid sick leave on days when she conducted the New York Scandia Symphony at Trinity Church. The Report verified Angelet's claim that Matson conducted the Scandia Symphony on November 18, 2004, while away from school on sick leave and detailed a number of other occasions over a period of two years from 2003 to 2005 where Matson claimed paid sick leave on days when she either rehearsed or conducted the Scandia Symphony. It also noted that according to the Operations Manager for Trinity Concerts, Matson “never missed a rehearsal or a performance” of the Scandia Symphony.

The specific references in the Report to fibromyalgia included the following:

Dr. Chao explained that Matson suffered from chronic fatigue syndrome, known as fibromyalsia [sic]. He added that the teacher's condition was brought on by physical or emotional stress and that Matson had complained that her professional relationship with school administrators was strained and caused her stress. The physician informed the investigator that Matson needed time off from her DOE position and that the pain caused by fibromyalsia [sic] could take months to subside. According to Dr. Chao, Matson could be able to conduct an orchestra with fibromyalsia [sic] because she would be away from the environment which caused her the stress that resulted in the onset of the condition.

Based on Condon's investigation, the Report concluded that Matson abused the DOE's sick leave policy. Accordingly, it recommended that Matson's employment be terminated and that she be directed to repay any salary to which she was not entitled. Disciplinary charges later were lodged against Matson.

The SCI publicly issued its report, in accordance with its specific authority to issue reports of investigations where it would be in the best interest of the school district. See The Special Comm'r of Investigation for the New York City Sch. Dist., Exec. Order No. 11 (June 28, 1990), available at http:// www.nycsci.org/public/Executive% 20Order.pdf (giving the Deputy Commissioner authority to “issue such reports regarding corruption or other criminal activity, unethical conduct, conflicts of interest, and misconduct, that he or she deems to be in the best interest of the school district”). The Report was made available to the public on the SCI's internet website in August 2005, and the investigation and the Report were covered by the local press.2

On August 22, 2005, while disciplinary charges were pending, Matson was involved in a car accident, suffering a cervical sprain and injuries to her back and shoulders. Apparently, she continued on unpaid medical leave after her accident, following a January 10, 2006 determination by the DOE that she was “not fit” to return to work. In March 2006, Matson applied for disability retirement. With her application, she submitted a medical report of Dr. Daniel J. Powsner, who concluded that Matson is suffering from psychiatric illness, post-traumatic stress disorder, which is likely to remain chronic․ Recovery from this illness is not to be expected in the foreseeable future. This illness has rendered her unable to pursue her occupation as a teacher. I do not believe that any type of accommodations that could be made at her place of employment would improve her ability to work. She is totally and permanently disabled from her occupation as a teacher.

Powsner's ultimate diagnosis was “Post-Traumatic Stress Disorder.”

The record before us does not reveal how Matson's employment with the school district ultimately came to an end. Apparently a disciplinary hearing had been scheduled but was terminated as indicated by an October 18, 2006 intra-departmental memorandum, which stated: “Please be advised that the Dorrit Matson disciplinary hearing has been resolved. As a result the DOE is withdrawing the charges previously preferred against Ms. Matson. Please adjust your records accordingly.” There is no indication from the parties or the record as to the disposition of Matson's disability retirement application following Powsner's report or as to why, according to DOE attorney Susan Jalowski, Matson's “disciplinary hearing ha[d] been resolved.”

II. Proceedings in the District Court

On August 14, 2008, Matson commenced this action by filing a complaint against the defendants in the United States District Court for the Southern District of New York. In her complaint, she asserted a claim under 42 U.S.C. § 1983 and alleged that her constitutional privacy rights had been violated. Matson contended that her medical condition of fibromyalgia improperly was disclosed to the public through the Report, published on the SCI's website, and later reported in New York City area newspapers. However, she neither challenged the SCI's finding that she abused sick leave nor its recommendation that she be terminated. Nor did she suggest that her medical condition was a disability that would need to be accommodated. Matson sought $2 million for damages plus attorney's fees.

On January 16, 2008, the defendants filed a motion to dismiss Matson's complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Matson submitted two affidavits in opposition to the defendants' motion to dismiss. In her affidavit, she alleged that the disclosure of her medical information has affected my ability to seek other employment, as potential employers, when “googling” my name learn that I suffer from various ailments․ It has led to a belief that I am “unreliable” or “undependable”, that I would be absent, without adequate notice, thereby effecting [sic] the ability of an orchestra to perform up to expectations.

Matson v. Bd. of Educ. of the City School District of the City of N.Y., No. 08 Civ. 7232(PAC), 2009 WL 2462513, at *2 n. 4 (S.D.N .Y. Aug. 7, 2009) (internal quotation marks omitted). An additional affidavit submitted by Andrew Ackers, a colleague of Matson's in the music industry, claimed that “[t]he public dissemination of [Matson's] medical condition has a severe impact upon [Matson] and the perception of the music world regarding [Matson] and possible employment․ The perception is that [Matson], suffering from fibromyalgia and/or chronic fatigue syndrome would be unreliable and undependable․” Id. (internal quotation marks omitted).

In a Memorandum Order dated August 7, 2009, the District Court granted the defendants' motion to dismiss the complaint. Id. at *4. The court also rejected the affidavits submitted by Matson and Ackers, finding that each contained new factual allegations that were not set forth in the complaint and, thus, were not properly before the court for its consideration. It stated that in any event the “factual allegations [were] wholly conclusory and speculative.” Id. at *2 n. 4. Moreover, the court found that to the extent the Report might lead potential future employers to view Matson as unreliable or undependable, this would not be due to Matson's fibromyalgia-instead, it would be because the Report concludes that Matson shirked her work responsibilities at her full-time job by claiming sick leave in order to do work she preferred.
Id.

The complaint's reference to the Condon Report enabled the court to consider the Report's contents. Id. at *1 n. 2 (“The facts contained in this Memorandum Order are drawn not only from the Complaint but also from the Report, which is integral to the Complaint and upon which the Complaint relies.” (citing Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir.2005) (“[On a motion to dismiss], the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint.”))).
The court ultimately concluded that neither fibromyalgia nor a bacterial infection is a condition that gives rise to a constitutionally-protected privacy right. Unlike the serious medical conditions that courts have recognized as giving rise to a privacy right, the District Court found that “[b]oth of Matson's disclosed conditions are a far cry from the level of seriousness associated with HIV/AIDS [and] transsexualism․” Id. at *3. With regard to any purported exposure to discrimination resulting from the publication of Matson's medical condition, the District Court found that “Matson cannot point to any history of discrimination against individuals with fibromyalgia that would lead the [c]ourt to conclude that she is likely to face discrimination, hostility, or intolerance because of her condition.” Id. In addition, the court found that Matson had not alleged that the public disclosure of her medical conditions exposed her to “discrimination, hostility, or intolerance.”3 Id. Judgment was entered on September 25, 2009, and this timely appeal followed.

On appeal, Matson argues that the District Court erred in dismissing her complaint for failing to establish that the defendants' disclosure of her medical condition implicated a constitutionally-protected privacy interest. Specifically, Matson claims that her situation is different from that of individuals who have diminished levels of privacy, such as prisoners and those whose medical information was necessarily disclosed during a judicial hearing or as part of a public record. Instead, she argues that she has set forth a viable cause of action because private medical information was disseminated, without her permission, and that that information has exposed her to unfair discrimination.

Matson also argues that the District Court improperly dismissed the BOE as a defendant in this action when it concluded that the “BOE ceased to be the agency responsible for New York City's public schools before the incidents giving rise to the Complaint occurred.” Matson, 2009 WL 2462513, at * 1 n. 1. She contends that recent state case law holds that the BOE remains a separate entity-though now renamed the Department of Education-that must be sued in its own name and apart from the City.4 Matson also argues on appeal, for the first time, that the District Judge was required, sua sponte, to recuse himself from this case. Matson argues that recusal was appropriate because the Judge was previously associated with the defendants in his capacity as the Commissioner of several New York City agencies and as Corporation Counsel for the City of New York. Matson also claims that the employment of the District Judge's niece by the defendants requires the Judge's recusal pursuant to 28 U.S.C. § 455.5

ANALYSIS

I. Standard of Review

“We review de novo a district court's grant of a motion to dismiss pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiff's favor.” Legnani v. Alitalia Linee Aeree Italiane, S.P .A., 274 F.3d 683, 685 (2d Cir.2001). We will “affirm only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Id. (internal citations omitted). “Where the complaint involves a civil rights violation, as it does here, the standard is to be applied with particular strictness.” Doe v. City of New York, 15 F.3d 264, 266 (2d Cir.1994) (internal quotation marks omitted).

“For the purpose of such review, this Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir.2009) (internal quotation marks omitted). The plaintiff's complaint must, however, “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ “ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.v. Twombly, 550 U.S. 544, 570 (2007)); accord Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir.2010). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. While a complaint need not contain “detailed factual allegations,” it requires “more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. (internal quotation marks omitted); accord DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010).

II. The Constitutional Right to Privacy for Medical Conditions

Matson's privacy claim presents the question: does the Constitution protect Matson's right to maintain the confidentiality of her fibromyalgia? As a general matter, “there exists in the United States Constitution a right to privacy protecting ‘the individual interest in avoiding disclosure of personal matters.’ “ Doe, 15 F.3d at 267 (quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)). “More precisely, this right to privacy can be characterized as a right to ‘confidentiality,’ “ which “includes the right to protection regarding information about the state of one's health.” Doe, 15 F.3d at 267; accord United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.1980) (recognizing that “[i]nformation about one's body and state of health is matter which the individual is ordinarily entitled to retain within the private enclave where he may lead a private life.” (internal quotation marks omitted)). This constitutional right to privacy extends in a limited way to prisoners as well. See Powell v. Schriver, 175 F.3d 107, 112 (2d Cir.1999) ( “[I]nmates retain those constitutional rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system.” (internal quotation marks and alterations omitted)).

Our case law makes clear, however, that “the interest in the privacy of medical information will vary with the condition.” Powell, 175 F.3d at 111; accord Doe, 15 F.3d at 267 (noting that a constitutional right to privacy for some diseases is greater than for others because while “there are few matters that are quite so personal as the status of one's health, and few matters the dissemination of which one would prefer to maintain greater control over,” this is “especially true with regard to those infected with HIV or living with AIDS” (emphasis added)). Confidential medical conditions are those that are “excruciatingly private and intimate [in] nature” such as those “likely to provoke ․ an intense desire to preserve one's medical confidentiality.” Powell, 175 F.3d at 111. We have concluded that such a privacy right exists with respect to a person's HIV status, Doe, 15 F.3d at 266-67, and transsexualism, Powell, 175 F.3d at 110-12.

In Doe, we explained that, as with any “serious medical condition,” “an individual's choice to inform others that she has contracted what is at this point invariably and sadly a fatal, incurable disease [ (HIV/AIDS) ] is one that she should normally be allowed to make for herself.” 15 F.3d at 267 (emphasis supplied).6 We reasoned that this is “especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease.” Id. In particular, we considered that “[a]n individual revealing that she is HIV seropositive potentially exposes herself not to understanding or compassion but to discrimination and intolerance.” Id.

In Powell, we applied our rationale in Doe and determined that “[l]ike HIV status as described in Doe, transsexualism is [an] unusual condition that is likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others.” Powell, 175 F.3d at 111. We also found that “[t]he excruciatingly private and intimate nature of transexualism, for persons who wish to preserve privacy in the matter, is really beyond debate.” Id. In extending the constitutional right of privacy to cover transsexualism, we recognized the “narrow parameters” in which such a right exists. Id. at 112.

III. Fibromyalgia and Privacy

Matson contends that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy. We do not doubt the medical seriousness of the condition. Indeed, we have held within the context of reviewing the denial of a social security disability application that “a growing number of courts, including our own, have recognized that fibromyalgia is a disabling impairment,” although “ ‘there are no objective tests which can conclusively confirm the disease.’ “ Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir.2003) (quoting Preston v. Sec'y of Health and Human Servs., 854 F.2d 815, 818 (6th Cir.1988)); see also Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 41 (2d Cir.1991) (ordering the district court to remand the case to the Secretary for consideration of new medical evidence regarding fibromyalgia). We have also recognized that, properly alleged, “claims [of CFS/fibromyalgia] are unquestionably sufficient to plead a disability for purposes of Section 504/ADA.” Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 147 (2d Cir.2002).

A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right. In Doe, we explained that HIV is “sadly a fatal, incurable disease.” 15 F.3d at 267. Our reasoning in Powell with regard to transsexualism differed, as we approached the condition as a psychiatric disorder. There, we explained that transsexualism is a “gender identity disorder, the sufferers of which believe that they are ‘cruelly imprisoned within a body incompatible with their real gender identity,’ “ and we further recognized that transsexualism is a “profound psychiatric disorder.” Powell, 175 F.3d 107, 111 (citing Farmer v. Moritsugu, 163 F.3d 610, 611 (D.C.Cir.1998) (per curiam)) (quoting The Merck Manual of Med. Info. 418 (1997); Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir.1997)). Fibromyalgia, however serious, is neither alleged to be fatal, as we recognized the HIV condition to be in Doe, nor is it a “profound psychiatric disorder” as we noted in Powell. While fibromyalgia is characterized by fatigue and muscular soreness and tenderness, we have noted that it can be debilitating only in certain instances. Green-Younger, 335 F.3d at 104.

Other courts in our Circuit have declined to extend the right of privacy to medical conditions other than those discussed in the cases noted above. See, e.g., Watson v. Wright, 2010 WL 55932, at * 1 (N.D.N.Y. Jan. 5, 2010) (“This [c]ourt finds no basis in Powell and its progeny for holding that, in a prison setting, plaintiff's Hepatitis C condition is the type of condition that gives rise to constitutional protection under Powell.”); Rush v. Artuz, 2004 WL 1770064 (S.D.N.Y. Aug. 6, 2004) (“First, plaintiff's wrist injury and his stomach problems cannot be classified as ‘personal matters of a sensitive nature’ and second, due to his use of a splint, plaintiff's wrist injury was clearly visible to all those around him.”).

Matson argues that our decision in O'Connor v. Pierson, 426 F .3d 187 (2d Cir.2005), announced a rule that would protect all medical conditions from disclosure. We reject Matson's reading of O'Connor. In O'Connor, the plaintiff school teacher was first placed on administrative leave pending an investigation of complaints against him by students and other teachers. Then, the teacher was placed on involuntary sick leave when he refused to submit to an independent psychiatric examination and refused to release his past medical records. Id. at 191, 193. The teacher took issue with the conditions required for returning to work and commenced an action arguing that the school board “violated his privacy rights by insisting that he sign a broad medical-records release form.” Id. at 201.

Citing Doe and Powell, we held in O'Connor that the plaintiff “had a protected privacy right in the medical records sought by the Board.” Id. We reasoned that “[m]edical information in general, and information about a person's psychiatric health and substance-abuse history in particular, is information of the most intimate kind.” Id. Also, this combination of medical conditions is one that is likely to bring about public opprobrium. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (holding that a law permitting a list to be posted in retail liquor outlets of those individuals who become dangerous after drinking “may to some be merely the mark of illness, [but] to others it is a stigma, an official branding of a person”); Barbara A. Weiner, Confidentiality of Mental Health Records, 1 Health L. Prac. Guide § 17:30 (2010) (“Although people are much more open about discussing their medical problems than in the past, there is still a stigma attached to having a mental illness.”); cf. Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir.1995) (noting that “an erroneous commitment [in a psychiatric hospital] may result not only in an unwarranted deprivation of liberty but also in the unwarranted stigma of being labelled mentally ill by the state” (internal quotation marks omitted)).

In addition, our determination that an individual need not disclose all of his medical records under the circumstances described in O'Connor does not suggest that a third party's disclosure of one particular medical condition in every case violates the right of privacy. Indeed, the “privacy of certain medical conditions” has been “constitutionalized” only “[w]ithin narrow parameters.” Powell, 426 F.3d at 112.

These narrow parameters have been defined, in large part, through the views of society. Historically, courts have considered on a case-by-case basis whether a disease was “contagious or attributed in any way to socially repugnant conduct” and whether it could be said that “society as a whole views [the disease] as directly associated with any disease which might conceivably be characterized as loathsome.” See Golub v. Enquirer/Star Group, Inc., 89 N.Y.2d 1074, 1077 (1997) (holding that cancer did not fit into the category of a loathsome disease) (internal quotation marks omitted). Such inquiry typically helped determine whether a party could be charged with slander per se for falsely accusing someone of having the disease. See, e.g., Cruz v. Latin News Impacto Newspaper, 627 N.Y.S.2d 388, 389 (1995) (stating that there is no authority for classifying [tuberculosis] among the diseases among which false imputations are defamatory”); Simpson v. Press Pub. Co., 67 N.Y.S. 401, 402 (N.Y.Sup.Ct.1990) (holding that “[t]o falsely say of one that he has leprosy is slander”).

In considering claims that a constitutional right of privacy attaches to various serious medical conditions, we also proceed on a case-by-case basis. In doing so, we examine all the relevant factors that cut both in favor of and against extending privacy protection to such medical conditions. This type of analysis necessarily will include certain medical conditions but will exclude others. Here, although fibromyalgia is a serious medical condition, it does not carry with it the sort of opprobrium that confers upon those who suffer from it a constitutional right of privacy as to that medical condition. Cf. Makas v. Miraglia, Nos. 05 Civ. 7180(DAB)(FM), 06 Civ. 14305(DAB)(FM), 2007 WL 724603, at * 17 (S.D.N.Y. Mar. 5, 2007), vacated in part on other grounds by Makas v. Miraglia, 300 F. App'x 9 (2d Cir.2008) (summary order) (“[W]hile a patient's cholesterol or thyroid level also constitutes personal medical information, its disclosure obviously does not carry with it the same potential for adverse effects as the disclosure of information about a sexually-transmitted disease or transsexualism.”).

In addition to a determination that a medical condition is “serious,” we have also focused our constitutional analysis on whether revealing one's condition would expose a person “not to understanding or compassion but to discrimination and intolerance.” See Doe, 15 F.3d at 267 (emphasis supplied). Thus in Doe, we determined that society has an “unfortunately unfeeling attitude ․ toward those coping with [HIV or living with AIDS].” Id. Likewise in Powell, we explained that “[i]ndividuals who have chosen to abandon one gender in favor of another understandably might desire to conduct their affairs as if such a transition was never necessary ․ [Transsexualism] is likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others.” Powell, 175 F.3d at 111.

Here, we discern no evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia. Matson cites to one case from the District of Massachusetts, which found that “many people diagnosed with fibromyalgia are unable to maintain gainful employment.” LaBrecque v. Sodexho USA, Inc., 287 F.Supp.2d 100, 103 (D.Mass.2003) (finding that the plaintiff's fibromyalgia rendered her physically impaired and holding that a reasonable jury could conclude that she properly made out a claim against her former employer for failing to accommodate her disability). But this case does not support the proposition, as contended by Matson, that one who is unable to maintain gainful employment because of fibromyalgia, is the subject of discrimination, hostility, or intolerance.7 We agree with the district court that concluded (albeit in a different context) that “there is no evidence in the record that a social stigma is attached to Plaintiff's medical conditions [including fibromyalgia] in the same manner that one is attached to other medical conditions, such as AIDS.” Rankin v. N.Y. Pub. Library, No. 98 Civ. 4821(RPP), 1999 WL 1084224, at *1 (S.D.N.Y. Dec. 2, 1999). Moreover, we note, as the District Court did in dicta, that “[f]ibromyalgia has a drug therapy, Lyrica, which is regularly advertised on television alongside drug advertisements for everyday medical conditions such as high cholesterol, frequent urination, osteoporosis, acid reflux, and many other similar conditions.” Matson, 2009 WL 2462513, at *3. We agree with the District Court that “[i]t is not possible to say that these commonly advertised conditions-publicly and regularly targeted by the drug companies-carry a social stigma equivalent to HIV/AIDS [or] transsexualism․” Id.

Matson has also failed to allege with specificity facts upon which to base a conclusion that she personally suffered discrimination or intolerance. The allegations of her rejected affidavit that “potential employers, when ‘googling’ [her] name learn that [she] suffer[s] from various ailments,” that she “has suffered a loss of income,” and that the “acts of the Defendants have caused [her] to suffer monetary and psychological damages” are absent from the complaint.

Matson also claims that the defendants disclosed her private medical information for the purpose of “embarrassing” and “humiliat[ing]” her.8 However, as noted above, the SCI has been given specific authority to issue reports of investigations where it would be in the best interest of the school district. Advising the public of the SCI's efforts to eradicate “fraud, misconduct, conflicts of interest, and other wrongdoing within the New York City school district” certainly is not outside of the Deputy Commissioner's authority. See The Special Comm'r of Investigation for the New York City Sch. Dist., http://www.nycsci.org (last visited Nov. 19, 2010). Moreover, it is the practice of the SCI to issue public reports of its investigations. In 2005, the year in which Matson's Report was issued, the SCI publicly released ten other reports based on its investigations. See Reports, The Special Comm'r of Investigation for the New York City Sch. Dist., http://www.nycsci.org (last visited Nov. 30, 2010). Among the reports also issued in 2005 was that of a teacher who was investigated for claiming sick time while, in fact, on a professional wrestling tour in Japan. The SCI separately published a report of a teacher who was investigated for claiming to be on military leave and deployed to New Orleans to provide Hurricane Katrina relief while, in fact, he had traveled to Brazil for personal reasons. Id. The SCI's frequent public release of its reports suggests that, rather than publishing Matson's report to embarrass or humiliate her, the SCI published the Report on its website as part of its policy to inform the public of its efforts to investigate instances of fraud within the New York City public school system. In any case, Matson has not alleged that she was, in fact, embarrassed or humiliated, nor has she challenged the SCI's findings and recommendations.

In an attempt to supplement the record, Matson submitted an affidavit (rejected by the District Court) of a music profession colleague stating that “public dissemination of the Plaintiff's medical condition has a severe impact upon the Plaintiff and the perception of the music world regarding the Plaintiff and possible employment,” and “[a] performing orchestra would shy away from hiring the Plaintiff because the performing orchestra fearing the perceived unreliability of the Plaintiff would loathe to put the Plaintiff in the position of the ‘face’ of said performing orchestra .” However, Matson's complaint contained no specific allegations in this regard, and the District Court properly rejected consideration of the affidavit. See Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir.1991) (explaining that “Rule 12(b) gives district courts two options when matters outside the pleadings are presented in response to a 12(b)(6) motion: the court may exclude the additional material and decide the motion on the complaint alone or it may convert the motion to one for summary judgment”). Moreover, there is not the slightest suggestion in the record that Matson's fibromyalgia has had any adverse impact on her employment as an orchestra conductor. In fact, the website for the Scandia Symphony boasts that “[i]n the highly competitive world of symphonic conducting, few can claim the success or unique accomplishments of Dorrit Matson, now in her seventeenth season as music director of the Scandia Symphony.” New York Scandia Symphony, http://www.nyscandia.org/about.html (last visited Nov. 19, 2010). The reviews posted on the website give rave reviews of Matson's work. Reviews, New York Scandia Symphony, http:// www.nyscandia.org/page05.html (last visited Nov. 19, 2010). Matson is, indeed, the “face” of the Scandia Symphony. In sum, because Matson's complaint offered no allegations of societal or actual discrimination, hostility, or intolerance against her based upon her diagnosis, we affirm the judgment of the District Court.

CONCLUSION

Because we determine that Matson's medical condition does not enjoy a constitutionally-protected right to privacy, we need not reach her other claim, that the District Court erred in finding that the BOE was not a proper party. In accordance with the foregoing, the judgment is affirmed.

In finding that Matson has failed to state a viable claim of infringement of her privacy rights, the majority today gives the government substantial reign to publicly disseminate a person's intimate medical information without any justification. While it is of course not the case that every bit of medical information is encompassed within the right to privacy, in my view, the majority has forged an unduly narrow understanding of what is protected. Because I believe that Matson's allegations concerning defendants' publication of her diagnosis of chronic fatigue syndrome (“CFS”) and/or fibromyalgia1 suffice to state a privacy violation, I would reverse the decision of the District Court. Accordingly, I respectfully dissent. Given that I would reinstate Matson's claim, I also briefly address Matson's argument that defendant Board of Education of the City School District of New York (“BOE”) is a proper party to this suit and find that it is. I concur only in the majority's conclusion that Matson has failed to identify any conflict disqualifying the District Judge.

I. Right to Privacy

Grounded in substantive due process, it is well established that the Constitution protects a person's privacy, including “the individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977). In recognition of the fact that “[m]edical information in general ․ is information of the most intimate kind,” O'Connor v. Pierson, 426 F.3d 187, 201 (2d Cir.2005), as part of the right to privacy, we have already “accorded constitutional stature to the right to maintain the confidentiality of previously undisclosed medical information,” Powell ex rel. Devilla v. Schriver, 175 F.3d 107, 112 (2d Cir.1999). Doe v. City of New York established that “the right to confidentiality includes the right to protection regarding information about the state of one's health.” 15 F.3d 264, 267 (2d Cir.1994). “Extension of the right to confidentiality to personal medical information recognizes that there are few matters that are quite so personal as the status of one's health, and few matters the dissemination of which one would prefer to maintain greater control over.” Id. Doe recognized that “[t]his would be true for any serious medical condition,” and that it certainly was true in the case of a person's HIV status given that the disease is fatal and incurable and that those affected are often discriminated against. Id. Doe clearly did not set a baseline for the level of severity that a condition must reach for it to fall within the ambit of protected confidential information. Rather, as we subsequently explained, Doe “held that ‘individuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding their condition’ because, as a more general matter, ‘the right to confidentiality includes the right to protection regarding information about the state of one's health.’ “ O'Connor, 426 F.3d at 201 (internal brackets omitted) (quoting Doe, 15 F.3d at 267). “[T]hat the interest is at its zenith in the context (presented in Doe) of a person's HIV status,” Powell, 175 F .3d at 111, does not imply that information regarding less serious conditions is unprotected; indeed, such a result would be directly contrary to Doe's indication that privacy protection should extend to information concerning “any serious medical condition” that one might ordinarily like to keep private, Doe, 15 F.3d at 267. As a district court in this circuit has recognized in finding that the right to privacy encompasses information that a person has sickle cell anemia, [w]ithout establishing a minimum standard that individuals must meet who seek to invoke the right to privacy in medical information, Doe indicates that the constitutional right to privacy in one's health protects information about “serious medical conditions,” especially those that are likely to provoke “not ․ understanding or compassion but ․ discrimination and intolerance.”

Fleming v. State Univ. of New York, 502 F.Supp.2d 324, 342 (E.D.N.Y.2007) (internal citation and brackets omitted).

Later decisions do not raise the bar. In Powell we recognized a right to confidentiality in transsexualism, a condition which we believed to be, akin to HIV, “the unusual condition that is likely to provoke both an intense desire to preserve one's medical confidentiality, as well as hostility and intolerance from others.” 175 F.3d at 111. As such, we found that the “interest in privacy” concerning one's transsexualism, “like the privacy interest of persons who are HIV positive, is particularly compelling .” Id. Powell thus suggests that one's transsexualism is a matter-like HIV infection-in which the privacy interest is at or near its “zenith.” Id. Based on Whalen, Doe, and Powell, we “easily” found a protected privacy interest in medical records containing “information about a person's psychiatric health and substance-abuse history.” O'Connor, 426 F.3d at 201.

These cases make clear that a medical condition need not be as serious as HIV or transsexualism in order to be included in the scope of privacy protection.2 That does not, of course, mean that the privacy right in the medical context is unbounded and I agree with the majority that a case-by-case analysis is necessary when determining whether a disease rises to the level where information concerning it is constitutionally protected; as we have previously stated, when dealing with dissemination of information concerning specific health issues, the “interest in the privacy of medical information will vary with the condition.” Powell, 175 F.3d at 111. The relevant inquiry is simply whether the information concerns a serious medical condition that is highly personal. See O'Connor, 426 F.3d at 201; Powell, 175 F.3d at 111; Doe, 15 F.3d at 267. Where those criteria are met, a person “should normally be allowed” to decide “for herself” whether or not to inform others that she is so afflicted. Doe, 15 F.3d at 267.

In my view, Matson has adequately alleged the unwarranted disclosure of just such information. As the majority acknowledges, fibromyalgia is a serious medical condition, which “a growing number of courts, including our own, have recognized ․ [a]s a disabling impairment.” Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir.2003) (internal citation omitted). Similarly, the Centers for Disease Control (“CDC”) explains that “CFS can be as disabling as multiple sclerosis, lupus, rheumatoid arthritis, heart disease, end-stage renal disease, chronic obstructive pulmonary disease (COPD) and similar chronic conditions.” Chronic Fatigue Syndrome: Symptoms, CDC, http://www.cdc.gov/cfs/general/symptoms/ (last visited Dec. 22, 2010); see also David Tuller, Chronic Fatigue No Longer Seen as ‘Yuppie Flu,’ N.Y. Times, July 17, 2007, at F6 [hereinafter Yuppie Flu ] (quoting an expert at the CDC describing people with CFS to be “as sick and as functionally impaired as [those] with AIDS, with breast cancer, [or] with chronic obstructive pulmonary disease”). Defendants in fact concede that the Report of the Special Commissioner of Investigation for the NYC School District (“SCI”) disclosed a “serious medical condition” within the meaning of Doe, but focus on the fact that it did not disclose conditions that “have the potential to be fatal” (Defs.' Br. 9 (citing Doe, 15 F.3d at 217; Fleming, 502 F.Supp.2d at 342)), and the majority similarly suggests that the non-terminal nature of the conditions significantly undermines the claim to privacy protection, ante at [15]. But a physical ailment is quite obviously in no way required to be lethal in order to be a matter “so personal” that “one would prefer to maintain greater control” over whether, when, and how to disclose that one is afflicted with that condition. Doe, 15 F.3d at 267.

More germane to the inquiry of what type of information is entitled to privacy protection is the consideration, highlighted by Doe and Powell, of whether a medical condition has the potential to provoke discrimination, hostility, or intolerance. We have never strictly required this factor in order to find a protected interest, but it is nevertheless a useful consideration in discerning whether the information in question is sufficiently personal. In this regard, the majority faults Matson for failing to provide “evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia” and/or CFS. Ante at [18]. That requires too much of a complaint. Indeed, neither the Doe nor Powell complaints alleged the widespread societal discrimination and intolerance invoked in their respective opinions. (Am. Compl., Devilla v. Schriver, No. 92-cv-206 (W.D.N.Y. May 28, 1999); Compl., Doe v. City of New York, No. 92-cv-8044 (S.D.N.Y. Nov. 3, 1992).)3 O'Connor is illustrative: Though in that case we found a protected interest in medical records without addressing the potential for discrimination, 426 F.3d at 201, the majority in this case now adds its own observation that the “combination of medical conditions” that the records in Powell reflected “is one that is likely to bring about public opprobrium,” ante at [16].

The notice pleading standard of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the defendant fair notice of what the ․ claim is and the ground upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)). The consequence of this standard is that once the complaint provides fair notice of the claim it “need not also allege specific facts establishing a prima facie case” or “include specific evidence,” Arista Records, LLC v. Doe 3, 604 F.3d 110, 119-20 (2d Cir.2010) (internal quotation marks omitted); in fact, “[t]he pleading of additional evidence, beyond what is required to enable the defendant to respond, is not only unnecessary but in contravention of proper pleading procedure,” Roth v. Jennings, 489 F.3d 499, 512 (2d Cir.2007). The corollary to Rule 8(a) is that a complaint attacked on a motion to dismiss pursuant to Rule 12(b)(6) will survive so long as the factual allegations-viewed in a light most favorable to the plaintiff and drawing all reasonable inferences in her favor-are sufficient to “raise a right to relief above the speculative level” and present a claim that is “plausible on its face.” Twombly, 550 U.S. at 555, 570. At this stage, “the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.” Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998).

Matson's complaint alleges that on or about August 17, 2005, defendants publicly disclosed her private medical information via the Report that they published on various websites. This is more than sufficient to provide defendants with the required notice of the claim and defendants in fact had no difficulty identifying the allegedly offending Report. That Report recited Matson's diagnoses of CFS and/or fibromyalgia and that recitation, as integral to the complaint, is treated as part and parcel of it. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.2006). Given the undisputedly serious nature of these conditions, and the slight inference required to appreciate that a person suffering from them may reasonably desire to keep that information private, I do not believe it can be said at this early stage that, as a matter of law, the conditions are insufficiently intimate to merit privacy protection. Cf. Chance, 143 F.3d at 702-03 (holding claim of Eighth Amendment violation in failure to provide adequate dental care to state sufficiently serious medical condition to survive motion to dismiss while recognizing that “not all claims regarding improper dental care will be constitutionally cognizable”). Moreover, Matson alleges that defendants disclosed her private medical information for the “purpose of embarrassing” and “humiliat[ing]” her. That is tantamount to alleging that the revelation that one is afflicted with CFS and/or fibromyalgia could be stigmatizing and is entirely plausible.

CFS is properly viewed as plausibly stigmatizing in at least two respects. Although the etiology of CFS is not well understood, various studies have linked it to one or more infectious diseases.4 See Yuppie Flu, supra. Given such reports, there is a distinct possibility that persons believed to have CFS may be stigmatized by others who would prefer not to expose themselves to this chronic, undesirable, and potentially contagious condition. At a minimum, this possibility would justify a CFS-sufferer's intense desire to keep his or her diagnosis private. On the flip side, for decades many have called the condition “yuppie flu” and “shirker syndrome,” reflecting the apparent belief that those who claim to suffer from it are whining and not to be taken seriously. See Yuppie Flu, supra. These circumstances also indicate that one with such a condition might prefer to keep that knowledge private rather than be viewed in such a negative light.

The majority's purported reasons for the contrary conclusion do not withstand scrutiny. Rebuffing Matson's citation to LaBrecque v.. Sodexho USA, Inc., 287 F.Supp.2d 100, 103 (D.Mass.2003), as not supporting her contention that persons suffering from fibromyalgia may be targeted for discrimination, the majority focuses on a single statement in that opinion that fibromyalgia may impair a person's ability to work. Ante at [18]. While that fact alone may not indicate anything about discrimination, in finding that the plaintiff's claim of discrimination under the Americans with Disabilities Act (“ADA”) survived defendants' motion for summary judgment, LaBrecque more broadly confirms the plausibility of the notion that fibromyalgia may engender discrimination. Additional cases reaching similar results with respect to CFS and/or fibromyalgia, including our own, suggest that LaBrecque is not an aberration and further underscore the plausibility of a more widespread phenomenon of discrimination related to these medical conditions. See, e.g., E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir.2009) (finding genuine issues of material fact as to whether employer discriminated against CFS sufferer in violation of the ADA); Weixel v. Bd. of Educ., 287 F.3d 138 (2d Cir.2002) (finding allegations of discrimination against person with CFS and fibromyalgia sufficient to state an ADA claim); Holt v. Olmstead Twp. Bd. of Trustees, 43 F.Supp.2d 812 (N.D.Ohio 1998) (denying motion for summary judgment to dismiss ADA claims of discrimination against CFS/fibromyalgia sufferer).

The statement in Rankin v. N.Y. Pub. Library, No. 98 Civ. 4821, 1999 WL 1084224 (S.D.N.Y. Dec. 2, 1999), finding no evidence in the record of that case of a social stigma attendant to fibromyalgia on par with that attendant to AIDS does not diminish this possibility. As the majority recognizes, that case arose in an entirely different context-that of a plaintiff seeking to proceed under a pseudonym. Id. at * 1. The District Court denied the request, finding the plaintiff's privacy interest to be “outweigh[ed][by] the long-standing policy of open judicial proceedings.” Id. One affirmatively coming into court is apt to lose a measurable degree of privacy and the considerations presented in that situation are undeniably different. Indeed, while Rankin suggests that the stigma attached to alcoholism is insufficient to allow a plaintiff to proceed anonymously, id. at *1 (citing Doe v. Frank, 951 F.2d 320, 324 (11th Cir.1992)), alcoholism appears to be precisely the type of condition which the majority finds to carry the requisite level of public opprobrium, see ante at [16 ] (noting that identification of individuals who become dangerous after drinking may constitute the “official branding of a person” (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Even if the comparison to a plaintiff seeking anonymity were appropriate, Rankin's observation does not take us far. As already discussed, nothing in Doe or Powell set any minimum standards for the level of discrimination that a condition must provoke in order to be protected. Accordingly, it is of no moment that the discrimination faced by one with fibromyalgia and/or CFS may be less severe than that which a person with HIV and/or AIDS may face.

The majority's reference to the fibromyalgia drug Lyrica (noted first by the District Court) is also puzzling. Neither the majority nor the District Court explain how the fact of televised advertisements for a drug treatment bears on the issue of whether a condition is highly personal or carries social stigma.5 Even if advertisement of drug therapy were somehow relevant, there is no similar treatment available (let alone advertised) for CFS. See Chronic Fatigue Syndrome: Treatment for CFS, CDC, http:// www.cdc.gov/cfs/general/treatment/index.html (last visited Dec. 22, 2010) (“There is no cure, [and] no prescription drugs have been developed specifically for CFS.”).

In short, the lack of any express allegation of past societal discrimination against those with CFS and/or fibromyalgia does not doom Matson's complaint.

The majority also treats as significant the lack of any proper allegation that Matson herself was discriminated against following disclosure. However, while whether the plaintiff actually suffered discrimination or was otherwise harmed by such disclosure is relevant to the issue of damages should liability be found, it is not the proper focus in determining the scope of the privacy right. Instead, in using discrimination as a proxy for ascertaining whether information is sufficiently personal to be protected, the proper consideration is the ex ante likelihood of stigmatization from the unwanted disclosure. Cf. Powell, 175 F.3d at 111 (finding privacy right where disclosure of a serious medical condition is “likely” to provoke “hostility and intolerance”); Doe, 15 F.3d at 267 (finding same where disclosure “potentially” results in “discrimination and intolerance”). In this regard, actual discrimination, hostility, or intolerance towards Matson is relevant only insofar as it may bolster the notion that this is the type of information that is likely to generate such a response. As already recounted, however, the complaint adequately indicates the plausibility of this notion and no more is needed at this stage.

In light of the above, I believe that information concerning a person's diagnosis of CFS and/or fibromyalgia falls comfortably within the ambit of plausible constitutional privacy protection as established by Whalen, Doe, and their progeny. It is entirely plausible that the disclosed information is of the type that is highly personal and potentially embarrassing, such that one would and normally should be able to choose whether to inform others that she suffers from these serious conditions.

The existence of a privacy right is of course not alone sufficient to constitute a constitutional violation. Even where there is a protectable interest in the confidentiality of information, that right may be waived. Powell, 175 F.3d at 112 n. 1. Additionally, the “confidentiality interest is not absolute ․ and can be overcome by a sufficiently weighty government purpose.” Statharos v. N.Y. City Taxi & Limo. Comm'n, 198 F.3d 317, 323 (2d Cir.1999). There is no dispute that Matson has adequately alleged that defendants disclosed matters without her permission. There is nothing in the fact of Matson's provision of her medical information to the BOE in support of her application for a leave of absence that could be considered to authorize the public dissemination of that information and Matson asserts that “[a]t no time” did she authorize such release.

Matson has also alleged unwarranted disclosure. Defendants have not argued that, if Matson's medical information were protected, they would have been justified in releasing it. That the SCI has the authority to-and apparently regularly does-publicly issue investigative reports does not in itself supply an adequate justification for publicly disseminating Matson's medical information. There is no indication why the public dissemination of the Report would have been any less effective in achieving any legitimate purpose without identifying Matson's specific diagnosis; indeed, that the Report remains on the SCI's website with Matson's private medical information redacted suggests just the opposite.

Where a plaintiff challenges executive action, however, only “conduct that ‘shocks the conscience[ ]’ will subject the government to liability for a substantive due process violation.”6 O'Connor, 426 F.3d at 203. While “necessarily imprecise,” the shocks-the-conscience test “depends on the state of mind of the government actor and the context in which the action was taken.” Id. (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998)). To the extent that Matson's allegation that defendants publicly broadcast her private information intending to embarrass and humiliate her is true, it would suffice. See id. (“[I]f the Board intended to injure or to spite O'Connor by insisting on a needlessly broad medical release as a condition of his reinstatement, that intent would plainly support liability in light of County of Sacramento.”).

Both the majority and the District Court pay excessive attention to the suggestion that Matson abused her sick-leave time during her employment with the BOE. Such actions, even if true, are wholly irrelevant to whether Matson's medical diagnoses are the type of information entitled to privacy protection and serve only to unnecessarily paint an unflattering picture of Matson. This is especially so given that the disciplinary charges against Matson have been withdrawn. What was not-and cannot be-withdrawn, however, is the public dissemination of Matson's intimate medical information.

For the foregoing reasons, I believe the District Court's decision should be reversed. A Whalen/Doe privacy claim in the medical context, while not unbounded, is not so narrowly limited to the extreme privacy violations at issue in our previous cases and is broad enough to cover Matson's privacy claim. Matson has alleged an unauthorized and unwarranted disclosure of potentially protected information sufficient to withstand a motion to dismiss. Accordingly, I respectfully dissent.

II. BOE As Defendant


In addition to dismissing Matson's complaint for failure to state a claim, the District Court concluded that even if the privacy claim were viable, the BOE would not be a proper defendant. The majority's disposition obviated its need to address Matson's argument that the dismissal of the BOE was erroneous; because I would reinstate Matson's privacy claim, I briefly address this issue.


In separately dismissing the BOE, the District Court first noted that in 2002 the BOE was stripped of its status as a semi-autonomous agency and renamed the New York City Department of Education (“DOE”). Matson v. Bd. of Educ., No. 08 Civ 7232, 2009 WL 2462513, at *1 n. 1 (S.D.N.Y. Aug. 7, 2009). The court then analyzed the DOE's amenability to suit and concluded that it was not amenable because, pursuant to the New York City Charter, as a city agency the DOE cannot be sued in its own name, and, in any event, because the SCI is independent of the DOE, Matson cannot allege any actions taken by the DOE that would subject it to liability. Id. There are several errors in this chain of logic.


First, while the District Court is largely correct that, following the 2002 amendments to the Education Law, the BOE is now frequently referred to as the DOE, e.g., D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 506 n. 1 (2d Cir.2006), the two are not entirely synonymous. The BOE “is created by the Legislature of the State of New York and derives its powers from State law.” Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York, Preamble, available at http://schools.nyc.gov/NR/rd onlyres/B432D059-6BFE-4198-8453-466FDE2B22D5/ 69835/PEPBylawsFinal91409.pdf [hereinafter BOE Bylaws]. By statute, the BOE remains in existence. See N.Y. Educ. Law § 2590-b(1)(a) ( “The board of education of the city school district of the city of New York is hereby continued.”). The DOE, by contrast, is a creation of the BOE through the BOE's bylaws and is comprised of the thirteen BOE members along with “the Chancellor, superintendents, community and citywide councils, principals, and school leadership teams.” BOE Bylaws, Preamble.


Matson has sued the BOE (as one of three defendants along with the City and the SCI) and nothing about the BOE's creation of an additional broader entity would appear to require suits against the DOE instead of the BOE.7 Cf. Nacipucha v. City of New York, 849 N.Y.S.2d 414, 419 (Sup.Ct.2009) (quoting an official notice in the November 12, 2002 edition of the New York Law Journal explaining how to serve process on either “the New York City Department or Board of Education”). Moreover, the New York City Charter does not preclude suits directly against the BOE. Section 396 of the Charter provides that “[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.” N.Y. City Charter § 396 (2009), available at http:// www.nyc.gov/html/charter/downloads/pdf/citycharter2009.pdf. That provision “has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued.” Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir.2008). The BOE, however, is neither a department nor agency of the City. Historically, the BOE “was created as a public corporate entity which is ․ separate and distinct from the City of New York.” Nacipucha, 849 N.Y. S.2d at 417. As such, the BOE could be-and indeed was required to be-separately sued for its alleged torts, as the City could not be held liable for the BOE's actions. Id. The Appellate Division of the New York Supreme Court has held that the 2002 restructuring of the BOE did not alter this system: “[T]he City and the Board remain separate legal entities[;]” “[t]he legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts.” Perez ex rel. Torres v. City of New York, 837 N.Y.S.2d 571, 572 (1st Dep't 2007), leave to appeal denied, 837 N.Y.S.2d 393 (2008). Recourse for alleged wrongs committed by the BOE thus remain redressable through suits against the BOE. See Nacipucha, 849 N.Y. S.2d at 419 (explaining how to serve process on the BOE or DOE, as distinct from the City); Lee S. Kreindler et al., New York Practice Series-New York Law of Torts § 17:56 (2010).


Notably, defendants do not now and did not below suggest otherwise, as one would certainly expect the BOE or the City to have done if there were a wholesale prohibition on suits against the BOE.8 In fact, seemingly to the contrary, defendants explained below that “it is well-settled that the Board of Education and the City of New York are separate and district entities.” (Br. in Support of Defs.' Mot. to Dismiss, at 3, Matson v. Bd. of Educ., No. 08-cv-7232 (S.D.N.Y. Jan. 16, 2009).) And for this reason defendants argued-and the District Court adopted this reasoning in the alternative-that the BOE should be dismissed since the SCI, which authored the offending Report, operates through the City and is thus a legal entity distinct from the BOE. However, even if the SCI's investigation cannot be attributed to the BOE, Matson alleges that the BOE participated in publicly releasing the SCI's Report, thus alleging wrongful actions directly by the BOE.


For these reasons, there is no additional barrier to Matson's suit against the BOE at this juncture and I would reverse the decision of the District Court in this regard as well.

III. Sua Sponte Recusal

Finally, though not raised below, Matson now claims that the District Judge erred in failing to sua sponte recuse himself from this matter. As there is no basis to find that the Judge's “impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), I concur in the majority's conclusion that recusal was not required. I offer but two additional observations in direct response to Matson's claims that the Judge's previous employment with the City of New York and his niece's current employment with the DOE present disqualifying conflicts.

A judge's prior governmental service, even with the same entity appearing before the judge as a party, does not automatically require recusal. Rather, prior governmental service disqualifies a judge from presiding over a matter only if the judge directly participated in the matter in some capacity or expressed an opinion concerning the merits of the particular case. 28 U.S.C. § 455(b)(3); accord Code of Judicial Conduct for United States Judges Canon 3(C)(1)(e), available at http://www.uscourts.gov/rulesandpolicies/CodesofConduct.aspx [hereinafter CJC]. Matson does not contend-nor is there any indication-that the District Judge was in any way involved in this case prior to his assignment to the instant matter and, accordingly, his earlier service for the City does not require recusal.

Nor was the District Judge required to recuse himself on account of his niece's employment with the DOE. Matson contends that his niece is a “high level executive” of the BOE or the DOE. (Matson Br. 54.) Were that true, Matson's claim might have some bite. A judge shall disqualify himself if a “person within the third degree of relationship to” him-which includes one's niece-“[i]s a party to the proceeding, or an offer, director, or trustee of a party.” 28 U.S.C. § 455(b)(5)(i); accord CJC Canon 3(C)(1)(d)(i). But the document Matson cites in support of her assertion suggests no more than that the District Judge's niece is the head of a single subsidiary office within the DOE-the Office of Multiple Pathways to Graduation-wholly unconnected to Matson, her employment, or the issues presented in this case. The niece's capacity as such does not present any problems.

CONCLUSION

In sum, I believe that Matson has adequately stated a claim of a privacy violation and, accordingly, would reverse the District Court's grant of defendants' motion to dismiss and reinstate the claim with respect to all three defendants. Because the majority concludes otherwise, I respectfully dissent. I concur only in the rejection of Matson's claim that the District Judge should have sua sponte recused himself.

FOOTNOTES

1. The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue․ People with fibromyalgia have ‘tender points' on the body. Tender points are specific places on the neck, shoulders, back, hips, arms, and legs. These points hurt when pressure is put on them.” National Institute of Arthritis and Musculoskeletal and Skin Diseases, Fast Facts About Fibromyalgia (last updated July 2009), available at http://www.niams.nih.gov/health_info/fibromyaliga_ff.asp. Chronic Fatigue Syndrome, or CFS, and fibromyalgia are often discussed interchangeably although they are distinct medical conditions.

2. The Report remains on the SCI's website and is available at: http://www.nycsci.org/reports/08-05% 20Matson% 20Dorrit% 20Ltr .pdf. References to fibromyalgia and to a recurrent bacterial infection, however, are now redacted from the Report.

3. The District Court noted that while Matson alleged that her private medical information was published in New York City area newspapers, her complaint did not attach the newspaper articles or contain quotations from them. However, the court discussed an article about the Report that was published in The New York Times and concluded that the article “focused on Matson's abuse of the sick leave policy, not on the nature of her medical condition .” Matson, 2009 WL 2462513, at *2 n. 3.

4. Matson notes that the New York State Appellate Division has held that “the City and the Board remain separate legal entities․ The legislative changes do not abrogate the statutory scheme for bringing lawsuits arising out of torts allegedly committed by the Board and its employees, and the City cannot be held liable for those alleged torts.” Perez ex rel. Torres v. City of N.Y., 837 N.Y.S.2d 571, 572 (App.Div.2007) (citation omitted).

5. When a plaintiff does not specifically move for recusal, a judge is obliged to take such action only if circumstances indicate that his “impartiality might reasonably be questioned.” 28 U.S.C. § 455; see United States v. Bayless, 201 F.3d 116, 126-30 (2d Cir.2000) (considering whether a judge should have sua sponte recused himself). Our review in such cases is limited to plain error, see United States v. Carlton, 534 F.3d 97, 100 (2d Cir.2008), which we do not identify here. “Disqualification is not required on the basis of remote, contingent, indirect or speculative interests.” Diamondstone v. Macaluso, 148 F.3d 113, 121 (2d Cir.1998) (internal quotation marks omitted). That the experienced District Judge previously served as Corporation Counsel of the City of New York, and that his niece is employed by the Department of Education, does not constitute a basis for questioning his impartiality. Accordingly, we reject plaintiff's recusal claim.

6. We understand that, since our decision in Doe, the prognosis for a person infected with HIV or living with AIDS has improved, given a range of new drug treatments. Nevertheless, that symptoms of HIV and AIDS may now be managed by a variety of treatments does not call into question the seriousness of these medical conditions. The U.S. National Library of Medicine has explained that “[a]lmost all people infected with HIV, if not treated, will develop AIDS,” and that “there is no cure for AIDS. It is always fatal without treatment.” U.S. Nat'l Library of Med., AIDS: MedlinePlus Medical Encyclopedia (last updated May 25, 2010), http:// www.nlm.ni h.gov/medlineplus/ency/article/000594.htm (emphasis supplied). Moreover, we adhere to our observation in Doe that a person infected with HIV may face an “unfortunately unfeeling attitude among many in this society” and “expose[ ] herself not to understanding or compassion but to discrimination and intolerance.” Doe, 15 F.3d at 267.

7. The dissent proposes that the “relevant inquiry” in determining whether a constitutional right to privacy exists as to a certain medical condition is “simply whether the information concerns a serious medical condition that is highly personal.” (Dissent at 4:9-11 (internal citations omitted)). We think that more germane to the inquiry is whether disclosure of one's medical condition would bring about public opprobrium and would expose a person to discrimination and intolerance, not simply whether the condition is “highly personal.”

The dissent highlights the “potentially embarrassing” nature of the “disclosed information” in concluding that fibromyalgia is the type of condition that gives rise to a constitutionallyprotected privacy right. (Dissent at 12:12-15) We believe that the “potential” for embarrassment is too subjective a standard to support such a conclusion. Indeed, embarrassment is a decidedly personal emotion. While Matson may have found disclosure of her condition to be a source of embarrassment, others in the same position instead may find the Report's disclosure of an abuse of the DOE's sick leave policy to be the source of embarrassment.

1. As an initial matter, contrary to the Report's disclosure that Matson suffers from “chronic fatigue syndrome, known as fibromyalsia [sic],” as the majority notes, see ante at [4 n. 1], the two conditions are in fact related but distinct. See Chronic Fatigue Syndrome: Alternative Medicine, Mayo Clinic, http://www.mayoclinic.com/health/chronic-fatigue-syndrome/DS00395/ DSECTION=alternative-medicine (last visited Dec. 22, 2010) (describing fibromyalgia as “a disease that is considered similar to CFS”). Nevertheless, though the Report states that Matson has CFS, and though Matson complains about the public dissemination of her illnesses of “fibromyalgia and/or chronic fatigue syndrome” (e .g., Matson Br. 37, 38), the majority discusses only fibromyalgia, noting that the conditions are often discussed interchangeably. Because both the parties and the majority largely treat the two conditions as one, and because they are similar, I shall for the most part likewise not dwell on any differences between the conditions for purposes of this analysis.

2. In fact, though the majority emphasizes the narrow confines of the right to privacy, we do not appear to have ever rejected a privacy claim concerning medical information on the grounds that the information is not encompassed within the right to confidentiality. Indeed, even many of the lower court cases defendants cite in support of their argument that Matson's medical information is not entitled to protection find not that the information is not protected, but that disclosure of the information was justified. See infra at [12-13] for discussion of when protected information may be disclosed without infringing on the right to privacy.

3. And though Powell arose following a jury trial, there is no indication that any evidence of societal discrimination was even offered at trial. That said, both the Doe and Powell plaintiffs did allege actual discrimination against themselves following disclosure. Powell, 175 F.3d at 109; Doe, 15 F.3d at 265. Similarly, the deep history of discrimination against those with sickle cell anemia recited by the District Court in Fleming is nowhere found in that complaint, though the plaintiff alleged adverse action against him personally. (See Am. Compl., Fleming v. State Univ. of N.Y., No. 05-cv-5386 (E.D.N.Y. Jun. 23, 2006).)

4. Some studies link CFS to a virus from the same family as HIV. Denise Grady, Virus is Found in Many with Chronic Fatigue Syndrome, N.Y. Times, Oct. 9, 2002, at A14. These viruses “insert themselves into their hosts' genetic material and stay for life.” Id. While other studies challenge this correlation, at this point the American Red Cross will not accept blood donations from those with CFS, and the U.S. Food and Drug Administration is considering a similar ban. Simeon Bennett, Mouse Virus Link to Chronic Fatigue Syndrome is Challenged in Four Studies, Bloomberg, Dec. 21, 2010, http://www.bloomberg.com/news/print/2010-12-21/ mouse-virus-link-to-chronic-fatigue-syndrome-is-challenged-in-fourstudies.html (last visited Dec. 22, 2010).

5. Genital herpes-which would appear to meet the majority's definition of a condition entitled to privacy protection, see ante at [18] (suggesting that information about sexually transmitted diseases would carry sufficient opprobrium to be protected)-also has a drug therapy, Valtrex, commonly advertised on television. See, e.g., CBS News, TV Drug Ads Too Emotional, Study Shows, Jan. 29, 2007, http://www.cbsnews.com/stori es/2007/01/29/health/webmd/main2411011.shtml (last visited Dec. 22, 2010) (describing television advertisement for Valtrex). Moreover, although the majority acknowledges the existence of a variety of drugs to manage HIV, it does not go on to consider that drug makers frequently advertise these drugs too. See, e.g., Ron Leuty, FDA: Gilead Ad For Truvada ‘Misleading,’ S.F. Bus. Times, Apr. 9, 2010; Rebecca Ruiz, Ten Misleading Drug Ads, Forbes.com, Feb. 2, 2010, http://www.forbes.com/2010/02/02/ drug-advertising-lipitor-lif estyle-health-pharmaceuticals-safety.html (last visited Dec. 22, 2010) (mentioning Abbott Laboratories' advertisement for the HIV drug Kaletra); Jeanne Whalen, Glaxo's HIV-Drug Ads Draw Critics, Wall St. J., Aug. 25, 2008.

6. These rules are significantly loosened in the prison context. Prison officials impinge on an inmate's right to privacy “only to the extent that their actions are [not] reasonably related to legitimate penological interests.” Powell, 175 F.3d at 112 (internal quotation marks omitted).

7. Indeed, the BOE has repeatedly been sued in its own name for alleged wrongs committed after 2002 without discussion. E.g., Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir.2010); Mulgrew v. Bd. of Educ., 906 N.Y. S.2d 9 (1st Dep't 2010).

8. Although in their brief below, defendants repeatedly referenced the “BOE,” on appeal they state that, following the District Court's lead, they will refer to the BOE as the DOE. (Defs.' Br. 3 n. 2.) Still, however, they do not argue that the DOE is not a proper party for the broad reason that the DOE cannot be sued in its own name. (In fact, on appeal, defendants do not in any way defend the District Court's separate dismissal of the BOE/DOE.)In any event, its name as the New York City Department of Education notwithstanding, the DOE does not appear to be a city department within the contemplation of the City Charter. As we have previously observed, “departments of the City of New York typically, perhaps uniformly, have been created by the City Charter, which does not create a New York City Department of Education.”Ximines, 516 F.3d at 159. In Ximines, after we remanded to the District Court to determine whether the DOE “is a subdivision of the Board as opposed to a department of the City” and whether it has “the capacity to be sued,” id., the parties stipulated that “the Defendant in the above action will be ‘The New York City Department of Education.’ “ (Stipulation, Ximines v. New York City Dep't of Educ., No. 05-cv-1214 (E.D.N.Y. Mar. 21, 2008).) While this stipulation is of course not dispositive, it does suggest that the City Charter does not preclude suits against the DOE. As Matson has sued the BOE, and not the DOE, however, this is a matter I need not definitively resolve.

STRAUB, Circuit Judge, filed opinion concurring in part and dissenting in part.