Blythe v. City of New York et al

Filing 61

MEMORANDUM AND ORDER GRANTING SUMMARY JUDGMENT: For the reasons set forth herein, defendants' motion for summary judgment is GRANTED in its entirety, and plaintiff's motion to amend her complaint is DENIED. The Clerk of Court shall enter judgment accordingly, and close this case. Ordered by Judge Roslynn R. Mauskopf on 8/5/2013. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
KATHRYN BLYTHE
Plaintiff,

MEMORANDUM & ORDER
08-CV-2843(RRM)(CLP)

- against THE CITY OF NEW YORK, THE NEW YORK
CITY DEPARTMENT OF EDUCATION,
RAFAELA ESPINAL-PACHECO, in her
individual capacity, VICKY BROADHURST, in
her individual capacity, OFFICER MATHEW
BIJOU, in his individual capacity, and
LIEUTENANT GALLAGHER, in his individual
capacity,
Defendants.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.

On July 16, 2008, plaintiff Kathryn Blythe brought this action against the City of New
York, the New York City Department of Education (“DOE”), two employees of the DOE –
Principal Rafaela Espinal-Pacheco and Assistant Principal Vicky Broadhurst – in their individual
capacities (collectively “DOE defendants”), and New York Police Department (“NYPD”)
Officer Bijou Mathew in his individual capacity.1 (Doc. No. 1.) The Court granted plaintiff
leave to amend her complaint on May 6, 2009, and she filed an amended complaint on May 8,
2009, adding NYPD Lieutenant Gallagher as a defendant.2 (Doc. No. 16.) Plaintiff’s Amended
Complaint alleges race discrimination and retaliation in violation of 42 U.S.C. §§ 1981 and 1983,
and deprivation of a liberty interest in violation of § 1983 and the Fourteenth Amendment
against the DOE defendants; and false arrest and an unlawful strip search, in violation of §§ 1983
1

There was apparently some confusion regarding the name of the arresting police officer. Because
defendants contend in their Local Rule 56.1 statement that the officer’s name is Bijou Mathew, and plaintiff does
not disagree, the Court refers to the arresting officer by that name.
2
Plaintiff’s amended complaint does not indicate Lieutenant Gallagher’s first name.

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and 1985, against all defendants. Before the Court are defendants’ motion for summary
judgment pursuant to Fed. R. Civ. P. 56 (Doc. No. 55) and plaintiff’s motion to file a second
amended complaint (Doc. Nos. 37, 38). Plaintiff opposes summary judgment. (Doc. No. 49.)
For the reasons stated below, defendants’ motion for summary judgment is GRANTED, and
plaintiff’s motion to amend her complaint is DENIED.
BACKGROUND
The following material facts are taken from the parties’ Local Rule 56.1 statements, as
well as the affidavits and exhibits submitted in connection with defendants’ motion for summary
judgment and plaintiff’s opposition thereto. The Court draws all factual inferences in favor of
plaintiff at the summary judgment stage.
I.

Plaintiff’s Teaching Career From 1985 Through 2005

Plaintiff Kathryn Blythe, who identifies herself as African American, began working for
the DOE as a per diem “Common Branches” elementary school teacher at P.S. 147 in 1985. In
September 1995, plaintiff received her permanent license certification to teach Nursery,
Kindergarten, and Grades 1–6. At the beginning of the 2004–2005 school year, Raphaela
Espinal-Pacheco, who identifies herself as a black Hispanic of Dominican descent, became the
principal of P.S. 147.
At the beginning of the 2004–2005 school year, Espinal-Pacheco told plaintiff she would
specifically be coming around to check on plaintiff’s performance, and that if her work was not
satisfactory she could receive an “unsatisfactory” rating. When plaintiff stated that she had
always had satisfactory evaluations and was therefore not concerned, Espinal-Pacheco responded
by threatening that she could “go after” plaintiff’s teaching license if she wanted to. (Pl.’s 56.1
(Doc. No. 50) at ¶ 35.)

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Another incident occurred later that same school year, in January 2005, when an African
American parent arrived at plaintiff’s classroom shortly before the start of the school day in tears
because Espinal-Pacheco had sent her son (who was not, and had never been, plaintiff’s student)
to the psychiatric ward at Woodhull Hospital. (See Defs.’ 56.1 (Doc. No. 56-1) at ¶¶ 42, 50–54;
Letter of February 11, 2005 (Doc. No. 56 Ex. K); Blythe Dep. (Doc. No. 56 Ex. B) at 208–09;
Espinal-Pacheco Dep. of Jan. 25, 2010 at 108–09.) While plaintiff was trying to comfort the
parent, Espinal-Pacheco observed the parent in plaintiff’s classroom and asked the parent to
leave, indicating that plaintiff had to attend to her class. Plaintiff ignored Espinal-Pacheco, and
asked the parent to come back at lunchtime, when plaintiff would have time to speak with her.
Plaintiff and Espinal-Pacheco discussed this incident, along with other instances of misconduct
by plaintiff, at a January 21, 2005 meeting at which plaintiff’s union representative was present;
Espinal-Pacheco memorialized that meeting in a February 11, 2005 disciplinary letter.
A. January 2005 Student Suspension Hearing Testimony
On January 25, 2005, plaintiff testified pursuant to a subpoena, at a Superintendent’s
Suspension Hearing of the student whose mother had visited plaintiff’s classroom in January
2005. Plaintiff believed this testimony was contrary to Espinal-Pacheco’s wishes, because
Espinal-Pacheco wanted the student to be suspended. Plaintiff testified at the hearing that she
believed the student was very bright and that, despite his behavioral problems, he should not be
suspended or sent to a psychiatric ward. (Blythe Dep. at 24–25.) Plaintiff did not believe the
student was being considered for suspension because of his race, and did not testify regarding
any alleged discrimination against African American students at the Suspension Hearing. (Defs.’
56.1 at ¶ 58; Blythe Dep. at 28.) Plaintiff received a “satisfactory” rating for her performance
during the 2004–2005 school year. (Defs.’ 56.1 at ¶ 60.)

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II.

2005–2006 School Year
A. June 1, 2006 Disciplinary Meeting and June 19, 2006 Disciplinary Letter

Plaintiff and Espinal-Pacheco had further disciplinary encounters during the 2005–2006
school year. On June 1, 2006, plaintiff met with Espinal-Pacheco, Assistant Principal
Broadhurst, and a teacher representative to discuss several instances of alleged misconduct by
plaintiff. Espinal-Pacheco maintained that plaintiff was absent 21 times between September
2005 and May 2006, which was excessive; that plaintiff refused to set up a meeting regarding a
complaint of verbal abuse against her; and that plaintiff left a class unattended in a school
hallway on May 26, 2006 while covering for another teacher. Regarding the May 26, 2006
incident, plaintiff claims that she was disciplined rather than a Hispanic teacher even though the
Hispanic teacher was also at fault. Espinal-Pacheco memorialized this meeting in a letter dated
June 19, 2006. (Defs.’ 56.1 at ¶ 64–66.)
B. June 2006 Campaign for Union Chapter Leader
In June 2006 – the same month as the disciplinary meeting and letter described above –
plaintiff ran for the position of union Chapter Leader. While running for this position, plaintiff
spoke out publicly regarding perceived disparate treatment by Espinal-Pacheco of Hispanic and
African American parents and students, Espinal-Pacheco’s interference with the PTA, and
“Department of Education cronyism.” Plaintiff has not indicated the content of these statements.
(See Compl. at ¶ 13(k); Blythe Aff. (Doc. No. 51 Ex. 29) at ¶ 14; Defs.’ 56.1 at ¶ 68.)
Plaintiff points to two ways in which Espinal-Pacheco treated Hispanic parents more
favorably than African-American parents. First, Espinal-Pacheco allegedly “favored” a group of
Hispanic parents running for membership on the school’s Parent-Teacher Association over a
group of African American parents. (Blythe Dep. at 196–200.) Second, Hispanic parents were

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allowed to come to plaintiff’s classroom and talk about their children without interference from
Espinal-Pacheco, but African American parents either were not allowed to visit classrooms or
were abruptly asked to leave by Espinal-Pacheco. (See Defs.’ 56.1 at ¶¶ 69–73.)
Plaintiff recalled three Hispanic students whose guardians were freely allowed to visit her
classroom – “Joseph’s” grandmother, “Ricardo’s” grandmother, and “Destiny’s” mother or aunt.
(Blythe Dep. at 196, 200–02.) In contrast, plaintiff described two instances in which African
American parents were “followed” by Espinal-Pacheco and asked to leave plaintiff’s classroom.
The first is the January 2005 incident, described above, in which a distraught mother came to
plaintiff’s classroom at the beginning of the school day. In the second, which took place in
March 2005 during “open school week” (a week where parents may tour the school and observe
classes), a parent came to plaintiff’s classroom to pick up her son’s report card while plaintiff’s
students were in the room. Espinal-Pacheco came to the classroom, asked what the parent was
doing there, and instructed plaintiff to attend to her class. Plaintiff then went into the hallway
with Espinal-Pacheco and indicated that she wanted Espinal-Pacheco to stop harassing her and
disrespecting her in front of students. (Blythe Dep. at 211–12; see Compl. at ¶ 13(i); Blythe Aff.
at ¶ 12; Defs.’ 56.1 at ¶¶72–73.)
Plaintiff also alleges that African American students were often disciplined more harshly
than Hispanic students, and specifically alleges that she “never observed students, other than
African American students, being sent to psychiatric wards.” (Blythe Aff. at ¶ 11.) Plaintiff
does not point to specific instances, apart from the January 2005 incident, in which African
American students were disciplined or referred for hospitalization.
Plaintiff received an “unsatisfactory” rating on her 2005–2006 performance evaluation,
and other non-African American teachers also received unsatisfactory ratings during the 2005–

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2006 school year. Plaintiff appealed the U-rating, and the appeal was denied. (Defs.’ 56.1 at ¶¶
77–83.)
III.

2006–2007 School Year

On February 15, 2007, because one of plaintiff’s students (“Student A”) was being
disruptive and repeatedly leaving the classroom, plaintiff requested that the school’s parent
coordinator contact Student A’s father or mother. Student A’s father came to the school and met
with plaintiff and Student A, who told her father in plaintiff’s presence that plaintiff had
scratched her when putting her back in her seat. Later that day, plaintiff met with Assistant
Principal Broadhurst to discuss Student A’s behavior, as well as a past allegation by Student A’s
mother that plaintiff had spoken inappropriately to Student A.
Student A’s mother was contacted by the father, and independently by another teacher,
both of whom indicated that Student A was crying because plaintiff had thrown her into a chair
earlier that day. Student A’s mother went to the school, where she saw that her daughter’s shirt
was ripped, and accused plaintiff of harming her child. A heated confrontation ensued between
the mother and plaintiff, and a school safety officer escorted plaintiff back to her classroom.
(See Broadhurst Dep. (Doc. No. 56 Ex. H) at 77–78; § 3020-a Hr’g Tr. of Nov. 5, 2009 (Doc.
No. 51 Ex. 21) at 202–05; Defs.’ & Pl.’s 56.1 at ¶¶ 87–94.)
After learning of the allegations against plaintiff, Espinal-Pacheco reported the allegation
of corporal punishment through the proper channels, including to the DOE’s Emergency
Information Center (“EIC”); and the DOE’s Office of Special Investigations (“OSI”). The EIC
operator informed Espinal-Pacheco that Student A’s mother could call 911 because of the
seriousness of the incident and the age of the student, and Espinal-Pacheco relayed this
information to Student A’s mother. Espinal-Pacheco and Student A’s mother then called 911

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and reported the incident. Student A’s mother later filed a formal complaint with the NYPD
against plaintiff for endangering the welfare of a child, among other things. (Defs.’ 56.1 at ¶¶
95–99; § 3020-a Hr’g Tr. (Doc. No. 51 Ex. 24) at 852–54.)
Police Officer Bijou Mathew and Lieutenant Gallagher arrived at P.S. 147 shortly
thereafter, in response to a police report that there was an assault in progress at P.S. 147. Student
A’s mother, who was still at the school when the officers arrived, informed the responding
officers that plaintiff had “put her hands on the child and forced her back into her seat.
Numerous times.” (Defs.’ 56.1 at ¶¶ 101–02.) Officer Mathew saw “a little bit of redness” on
Student A. (Id. at ¶ 103.) Officer Mathew arrested plaintiff at approximately 2:52 pm, and
transported her to the 90th precinct.
While still handcuffed, plaintiff was placed in a jail cell with two other women for about
45 minutes. (Pl.’s 56.1 at ¶ 107.) Plaintiff was subjected to a strip search by an unidentified
female police officer in a restroom near the jail cell, and was eventually moved from the jail cell
into the precinct’s juvenile room. After being questioned by a detective and a representative
from the Administration for Children’s Services, plaintiff’s arrest was voided and she was
released at approximately 7:15 pm. (Defs.’ 56.1 at ¶¶ 106–12.)
A. Plaintiff’s Reassignment, Harassment Complaint, and Office of Equal
Opportunity Complaint
Plaintiff received a letter dated the same day, February 15, 2007, informing her that she
was being reassigned to the Region Eight Operations Center because of a serious allegation that
had been made against her. Dennis Boyles, a Confidential Investigator with the OSI, began
investigating the corporal punishment allegation made by Student A’s mother on or about
February 27, 2007. In connection with this investigation, Investigator Boyles interviewed
plaintiff on March 28, 2007, at which time plaintiff denied the allegations of corporal

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punishment but refused to answer additional questions on advice of her union representatives.
The OSI concluded, in a memorandum dated April 9, 2007, that plaintiff had violated
Chancellor’s Regulations A 420 (prohibiting corporal punishment) and A 421 (prohibiting verbal
abuse of students). (Memorandum of April 9, 2007 (Doc. No. 56 Ex. CC).) Plaintiff refused to
meet with Espinal-Pacheco to discuss this substantiated allegation of corporal punishment, and
Espinal-Pacheco sent plaintiff a letter on May 10, 2007 stating that, based upon the investigation,
she had concluded that plaintiff committed an act of corporal punishment, which constituted
unacceptable teacher conduct. (Defs.’ 56.1 at ¶¶ 113–24.)
Plaintiff filed a complaint of discrimination with the DOE’s Office of Equal Opportunity,
dated May 10, 2007.3 The OEO concluded that it was unable to assist plaintiff because she had
not provided evidence that she was discriminated against based on her age, color, ethnicity, race,
or other protected classes. (Defs.’ 56.1 at ¶¶ 125–26.) On May 30, 2007, plaintiff received
notice that she had been placed on the DOE’s Ineligible/Inquiry list due to pending disciplinary
charges.
B. Section 3020-a Disciplinary Charges Against Plaintiff
In a notice dated June 22, 2007, plaintiff was served with disciplinary charges pursuant to
New York Education Law (“NYEL”) § 3020-a and the collective bargaining agreement between
plaintiff’s union (the United Federation of Teachers) and the DOE. The charges alleged seven
specifications against plaintiff: (1) excessive absences during the 2005–2006 school year; (2)
leaving a class unsupervised on January 14, 2005; (3) failing to present a lesson plan when
requested on January 14, 2005; (4) leaving a class unsupervised and failing to return to the

3

Plaintiff complained of receiving harassing phone calls, “being threatened about observations,” being
placed in an isolated area of the school, not receiving help with problem students, having to move classrooms,
having to carry two classes at a time, unfair workloads, meddling in union elections, “blowing the whistle,” and
being falsely arrested based on untrue allegations.

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classroom when instructed to do so on January 18, 2005; (5) yelling at students repeatedly on
September 5, 2006; (6) threatening to choke another teacher in front of students on April 15,
2007; and (7) corporal punishment of a student. Plaintiff was notified in a letter dated June 25,
2007 that she would remain on suspension with pay pending the determination of these charges.
(Defs.’ 56.1 at ¶¶ 128–31.)
IV.

Disciplinary Hearing and Decision

A disciplinary hearing was conducted pursuant to NYEL § 3020-a and the collective
bargaining agreement over seven days in October and November, 2009, in which plaintiff was
represented by counsel. The hearing officer issued an Opinion & Award on May 11, 2010,
finding plaintiff guilty of specifications 1 (excessive absences), 2 (leaving a class unsupervised
on January 14, 2005), and 7 (corporal punishment); guilty in part of specification 4 (leaving a
class unsupervised on January 18, 2005), dismissing the remaining specifications, and ordering
that plaintiff be suspended without pay until the end of the 2010–2011 school year. (Defs.’ 56.1
at ¶¶ 132–39.) The hearing officer made two specific findings of fact that are relevant here: (1)
plaintiff was excessively absent during the 2005–2006 school year and did not prove that she
was hospitalized during that time, and (2) plaintiff grabbed Student A on February 15, 2007 with
sufficient force that she tore the collar of Student A’s shirt and popped the buttons off the shirt.
On June 4, 2010, plaintiff sought, pro se, to vacate the arbitration opinion through a
special proceeding pursuant to N.Y. C.P.L.R. Article 75. Plaintiff alleged that (1) the hearing
officer was biased, (2) the punishment was excessive, (3) the hearing officer and DOE
committed fraud, corruption, and misconduct, and (4) the hearing officer violated § 3020-a’s
procedural requirements. (See Pet. to Vacate Arbitration Award (Doc. No. 56 Ex. WW) at 17–
22.) The Department of Education cross moved to dismiss the petition.

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Judge Cynthia S. Kern of the New York State Supreme Court, New York County,
dismissed plaintiff’s Article 75 petition in an order dated September 20, 2010. (Defs.’ 56.1 at ¶¶
141–42.) Judge Kern found that plaintiff “failed to provide any evidence demonstrating
misconduct, bias, excess of power, or procedural defects;” that the Hearing officer’s decision
was rational and supported by adequate evidence; and that plaintiff’s due process rights were not
violated when the school board did not vote on the charges against her. (Judgment/Order of
Sept. 20, 2010 (Doc. No. 56 Ex. XX) at 3–4.)
V.

The Instant Action

Plaintiff commenced this action by filing a complaint on July 16, 2008, and filed an
amended complaint on May 8, 2009. Plaintiff asserts the following claims against the DOE
defendants: (1) race discrimination pursuant to 42 U.S.C. §§ 1981 and 1983; (2) violation of her
right to due process pursuant to the Fourteenth Amendment and §1983; and (3) retaliation
pursuant to the First Amendment and §1983. Plaintiff also asserts, against all defendants, a
claim for false arrest and false imprisonment, in violation of the Fourth and Fourteenth
Amendments and §§ 1983 and 1985.
On November 30, 2010, plaintiff moved for leave to file a second amended complaint
adding a claim that her due process rights were violated because the hearing officer did not
follow the procedures set out in § 3020-a.4 On February 7, 2012, defendants moved for
summary judgment. Plaintiff opposes summary judgment. Before the Court are plaintiff’s
motion to file a second amended complaint, and defendants’ motion for summary judgment.
DISCUSSION
I.

Legal Standard for Summary Judgment

4

This motion was terminated from the docket because it was docketed in contravention of the Court’s
individual rules.

10

Summary judgment is appropriate when the pleadings, depositions, interrogatories,
admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute
and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material facts exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, the evidence of the
nonmovant “is to be believed” and the court must draw all “justifiable” or reasonable inferences
in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
158–59 (1970)); Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004). Nevertheless, once the
moving party has shown that there is no genuine issue as to any material fact and that it is
entitled to a judgment as a matter of law, “the nonmoving party must come forward with specific
facts showing there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted, emphasis in original).
The non-moving party “may not rely on conclusory allegations or unsubstantiated speculation.”
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the nonmovant must offer
“concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson,
477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary
judgment is warranted if the nonmovant fails to make a showing sufficient to establish the
existence of an element essential to [its] case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993)
(quoting Celotex, 477 U.S. at 322) (internal quotation marks omitted). Thus, “[a] defendant
moving for summary judgment must prevail if the plaintiff fails to come forward with enough

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evidence to create a genuine factual issue to be tried with respect to an element essential to its
case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247–48).
II.

State Action for Purposes of Claims Pursuant to § 1983
Plaintiff asserts four claims pursuant to § 1983: race discrimination, violation of due

process, retaliation, and false arrest and imprisonment. “To state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The parties apparently do not dispute that
all defendants acted under color of state law in taking the actions giving rise to this litigation, and
the Court finds that all defendants acted under color of state law at all times relevant to plaintiff’s
claims because their actions were made possible only because of the authority given to them by
state law. See Colombo v. O’Connell, 310 F.3d 115, 117–18 (2d Cir. 2002) (quoting West, 487
U.S. at 49). Whether plaintiff has sufficiently “allege[d] the violation of [rights] secured by the
Constitution and laws of the United States” is discussed below in connection with each of
plaintiff’s claims.
III.

§§ 1981 and 1983 Race Discrimination Claims
a. § 1981 Race Discrimination Claim
Plaintiff’s Second Cause of Action alleges violations of § 1981 against the DOE

defendants – however, to the extent plaintiff seeks to vindicate any independent rights under §
1981, she must do so via claims pursuant to § 1983. Jett v. Dallas Indep. Sch. Dist., 491 U.S.
701, 735 (1989); Gladwin v. Pozzi, 403 Fed. App’x 603, 605 (2d Cir. 2010) (“As the district
court noted, Gladwin’s § 1981 claims are encompassed by her § 1983 claims, and both are
therefore analyzed under § 1983.”); Hogan v. Cnty. of Lewis, New York, No. 7:11-CV-0754

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(LEK/ATB), 2013 WL 936513, at *13 (N.D.N.Y. Mar. 8, 2013); Ya-Chen Chen v. The City
Univ. of New York, No. 11-cv-0320(CM), 2011 WL 5419792, at *4–5 (S.D.N.Y. Nov. 9, 2011);
Whaley v. City Univ. of New York, 555 F. Supp. 2d. 381, 400–01 (S.D.N.Y. 2008). “In Jett, the
Supreme Court held that the express action at law provided by § 1983 for the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, provides the exclusive
federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is
pressed against a state actor.” Whaley, 555 F. Supp. 2d at 400 (quoting Jett, 491 U.S. at 735)
(internal quotation marks omitted). This holding has been interpreted to apply to governmental
entities as well as state actors sued in their individual capacities. Id. (quoting Roddini v. City
Univ. of New York, No. 02 Civ. 4640(LAP), 2003 WL 435981, at *5 (S.D.N.Y. Feb. 21, 2003));
see Ya-Chen Chen, 2011 WL 5419792, at *5; Hogan, 2013 WL 936513, at *13.5 Because
plaintiff seeks only damages and, as noted above, all defendants are state actors, plaintiff must
assert this claim through § 1983.
b. § 1983 Race Discrimination Claim
i. Legal Standard
Plaintiff’s § 1983 race discrimination claim is analyzed under the McDonnell Douglas
burden-shifting framework. Ruiz v. Cnty. Of Rockland, 609 F.3d 486, 491–92 (2d Cir. 2010)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973)). Plaintiff must first
establish a prima facie case of race discrimination by showing that (1) she is a member of a
protected class; (2) she was qualified for the position she held; (3) she suffered an adverse
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The court in Whaley noted that, at the time of that opinion, some question existed as to whether § 1981(c),
enacted in 1991, created an implied private right of action against state actors under § 1981, thereby statutorily
overruling Jett, and that the Second Circuit had not yet considered the issue. 555 F. Supp. 2d. at 401 (citing
Anderson v. Conboy, 156 F.3d 167, 178 n. 19 (2d Cir.1998)). That court, however, ultimately followed other district
courts in the Second Circuit by applying the Supreme Court’s reasoning in Jett. Id. The Court sees no reason to
depart form the analysis in Whaley, particularly in light of (1) the Second Circuit’s recent application of Jett without
discussion of § 1981(c) in Gladwin, 403 Fed. App’x at 605, and (2) the fact that this Court has been unable to locate
a Second Circuit decision resolving the issue noted in Whaley.

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employment action; and (4) the adverse action took place under circumstances giving rise to an
inference of discrimination. Id. Once plaintiff meets this initial burden, the burden then shifts to
defendant to offer a legitimate nondiscriminatory reason for the action. Id. at 492 (citing
Holcomb v. Iona College, 521 F.3d 130, 140 (2d Cir. 2008)). If defendant does so, the burden
shifts back to plaintiff to show that the legitimate nondiscriminatory reason is pretextual, and that
the real reason for the adverse employment action was plaintiff’s race. Id. (citing Holcomb, 521
F.3d at 141).
In support of her race discrimination claim, plaintiff points to three allegedly
discriminatory adverse actions. First, plaintiff alleges that Espinal-Pacheco told plaintiff in
September 2005 that she would be “specifically coming around to check on” plaintiff, and could
go after plaintiff’s teaching license if she wanted to. (Defs.’ 56.1 at ¶ 34; Blythe Aff. at ¶ 8; Am.
Compl. at ¶ 13(g).) Second, plaintiff alleges that Espinal-Pacheco treated Hispanic and African
American parents and students differently by allowing Hispanic parents to meet with teachers in
their classrooms for a longer period of time than African American parents, and asking African
American parents to leave such meetings on two occasions. (Defs.’ 56.1 at ¶¶ 69–73; Blythe
Dep. at 196:20–22, 198:22–200:13, 200:19–212:3; Blythe Aff. at ¶¶ 9–10.) Third, plaintiff
alleges that, when a Hispanic teacher left her class unattended on May 26, 2006, forcing plaintiff
to cover the class, plaintiff was reprimanded rather than the Hispanic teacher. (Defs.’ 56.1 at ¶
65; Blythe Dep. at 244:10–25, 248:3–250:21, Pl.’s Opp. at 18–19.)
ii. Plaintiff’s Prima Facie Case
Plaintiff has failed to make out a prima facie case because none of the above-cited actions
constitutes an adverse employment action. For purposes of a § 1981 or § 1983 claim of race
discrimination, an adverse employment action is a “materially adverse change” in the terms and

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conditions of employment, which is defined as a change in working conditions that is “more
disruptive than a mere inconvenience or an alteration of job responsibilities.” Walker v. City of
New York, No. 98 CV 2695(SJ), 2002 WL 31051534, at *4 (E.D.N.Y. July 22, 2002) (quoting
Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)); see Bermudez v. City
of New York, 783 F. Supp. 2d 560, 575–76 (S.D.N.Y. 2011) (quoting Patane v. Clark, 508 F.3d
106, 112 (2d Cir. 2007)). Such a change might be indicated by “a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices . . . unique to a
particular situation.” Walker, 2002 WL 31051534, at *4 (quoting Galabya, 202 F.3d at 640).
Espinal-Pacheco’s warning that she would be “checking on” plaintiff and could go after
plaintiff’s teaching license if she wanted to was not an adverse employment action because it did
not “alter the terms and conditions of the plaintiff’s employment in a materially negative way.”
Chang v. Safe Horizon, No. 03 Civ. 10100WHP, 2005 WL 2125660, at *9 (S.D.N.Y. Sept. 1,
2004), aff’d, 254 Fed. App’x 838. The statement was merely a warning that inadequate
performance could result in a negative review – it did not lead to any follow-up procedures or
discipline, nor did it impact plaintiff’s title, salary, benefits, or job responsibilities. See Chang,
2005 WL 2125660, at *9 (holding that, in analogous Title VII retaliation context, supervisor’s
written disciplinary warnings that plaintiff needed to improve performance, questioning by
supervisors behind closed doors, and an attempt to access plaintiff’s computer were not
materially adverse employment actions); Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 355
(S.D.N.Y. 2006) (holding that “[e]xcessive scrutiny, without more, does not constitute an
adverse employment action” and citing cases). Contra Sharpe v. Utica Mut. Ins. Co., 756 F.
Supp. 2d 230, 245 (N.D.N.Y. 2010) (holding that verbal and written warnings were materially

15

adverse because they initiated follow-up meetings and close monitoring of plaintiff’s progress,
and noted that failure to demonstrate improvement would lead to further disciplinary action).
Nor did Espinal-Pacheco’s alleged disparate treatment of African American and Hispanic
parents and students constitute an adverse employment action. Plaintiff points to two instances
in which Espinal-Pacheco asked African American parents to leave during conversations with
plaintiff but admits that, in each circumstance, plaintiff’s class was present when the parent came
to her classroom and Espinal-Pacheco instructed plaintiff to attend to her class. Therefore, even
viewing the facts most favorably to plaintiff, these encounters were at most inconveniences and
did not materially impact plaintiff’s working environment. Hill, 467 F. Supp. 2d at 355
(“[I]nconveniences do not constitute adverse employment actions). Again, plaintiff has
presented no evidence that her title, salary, benefits, or job responsibilities were impacted. See
id. at 354 (“Plaintiff must have experienced ‘some attendant negative result, [such as] a
deprivation of a position or opportunity.’”) (quoting Pimentel v. City of New York, No. 00
CIV.326(SAS), 2002 WL 977535, at *4 (S.D.N.Y. May 14, 2002)). Plaintiff has similarly
presented no evidence that Espinal-Pacheco’s “favoring” of a slate of Hispanic PTA candidates
or disciplining a single African American student materially and adversely impacted her
employment.
Finally, the discipline plaintiff suffered in connection with leaving another teacher’s class
unattended – including receiving a reprimand, attending a disciplinary meeting, and receipt of
the June 19, 2006 disciplinary letter – was not a materially adverse change. (See Blythe Dep. at
244:10–25, 248:3–250:21; Blythe Aff. at ¶ 18; Disciplinary Letter (Doc. No. 56 Ex. P); see also
Defs.’ & Pl.’s 56.1 at ¶¶ 64–65.) These actions, however unpleasant or embarrassing they may
have been for plaintiff, did not amount to “a change in working conditions . . . more disruptive

16

than a mere inconvenience or an alteration of job responsibilities.” Galabya, 202 F.3d at 640.
The disciplinary letter recounted several instances of plaintiff’s allegedly insubordinate behavior,
concluded that plaintiff’s behavior was “uncooperative and unprofessional” and constituted
“insubordination,” and warned that the incidents detailed in the letter may lead to further
disciplinary action, including an unsatisfactory rating and charges that could lead to termination.
(Defs.’ Ex. P.) However, because the letter contained no indication of planned discipline or
further action, a rational factfinder would have “no basis for concluding that plaintiff suffered
any actionable harm as a result of the reprimand.” Stembridge v. City of New York, 88 F. Supp.
2d 276, 283 (S.D.N.Y. 2000) (finding that a reprimand that “contained a warning that repetition
of improper behavior could result in disciplinary action but contained no indication of any
planned discipline or further action” was not an adverse employment action).
Because plaintiff has failed to establish a prime facie case of race discrimination,
defendants are entitled to summary judgment on plaintiff’s race discrimination claim.
IV.

Due Process Liberty Interest Claim
In her Third Cause of Action, plaintiff argues that defendants imposed a reputation harm

on her in violation of the liberty interest provision of the Fourteenth Amendment’s Due Process
clause by accusing her of corporal punishment; and that the process afforded her was inadequate
because the § 3020-a hearing officer did not follow the procedures set out in § 3020-a in
evaluating the charges.
The Second Circuit “has recognized that loss of one’s reputation can . . . invoke the
protections of the Due Process Clause if that loss is coupled with the deprivation of a more
tangible interest, such as government employment.” Guerra v. Jones, 421 Fed. App’x 15, 18 (2d
Cir. 2011) (quoting Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004)). To prevail on

17

her claim that she was deprived of a liberty interest in her reputation without due process of law
– a so-called “stigma-plus” claim” – plaintiff must prove (1) the utterance of a statement that is
injurious to reputation, that is capable of being proved false, and that is claimed to be false; and
(2) some tangible and material state-imposed burden in addition to the stigmatizing statement.
Rausa v. Bd. Of Ed. Of the North Syracuse Cent. Sch. Dist., No. 5:11-cv-1152, 2012 WL 967052,
at *10 (N.D.N.Y. Mar. 21, 2012) (citing Monserrate v. New York State Senate, 599 F.3d 148,
158 (2d Cir. 2010)). Plaintiff’s theory is that the allegedly false corporal punishment charges
constituted the stigma, and the failure to follow the procedures set out in § 3020-a constituted the
“plus.”
Assuming that plaintiff has adequately alleged a violation of her reputation interest, her
stigma-plus claim nonetheless fails because she received all the process she was due in the form
of a properly conducted § 3020-a hearing. See Strong v. Bd. Of Ed. of Uniondale Union Free
Sch. Dist., 902 F.2d 208, 212 (2d Cir. 1990) (“All the process that was due in this case has been
provided.”) (citing Cleveland Bd. Of Ed. v. Loudermill, 470 U.S. 532, 545–48 (1985)). “The
tenured public employee is entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present his side of the story.”
Loudermill, 470 U.S. at 546; see Adams v. New York State Ed. Dep’t, 752 F. Supp. 2d 420, 455
(2d Cir. 2010); Strong, 902 F.2d at 211 (“Under New York law a tenured teacher may be
removed only pursuant to certain substantive and procedural safeguards, including notice and a
full-blown adversarial hearing.”). The procedures of § 3020-a, when followed, are more than
adequate to satisfy the Fourteenth Amendment’s requirement of due process, and it is not
disputed that plaintiff received a § 3020-a hearing spanning seven days, at which she was
represented by counsel who called and examined numerous witnesses. Roemer v. Bd. Of Ed. of

18

City of New York, 150 Fed. App’x 38, 40 (2d Cir. 2005) (“[Section 3020-a] sets out the
procedures for challenging claims like the ones brought against Roemer and provides all the
process due.”); Ramberran v. Dellacona, No. 07-CV-304 (CBA), 2008 WL 905217, at *4
(E.D.N.Y. Mar. 31, 2008) (quoting Montefusco v. Nassau Cnty., 39 F. Supp. 2d 231, 239–40
(E.D.N.Y. 1999)).
Plaintiff contends, however, that the procedures of § 3020-a were not followed, because
(1) the hearing was not held within 60 days of the pre-hearing conference as required by § 3020a(3)(c)(vi), (2) there was no finding of probable cause by the Board of Education as required by
§ 3020-a(2)(a), and (3) the hearing officer was biased against plaintiff. With respect to the first
argument, plaintiff has not demonstrated that she was prejudiced by any delay, as is required to
vacate an arbitration award for untimeliness. Morrell v. New York City Dep’t of Ed., No.
106761/2010, 2010 WL 5600939, 924 N.Y.S.2d 310, at *6 (N.Y. Sup. Ct. Dec. 3, 2010) (table)
(“To vacate an arbitration award on grounds of untimeliness, a petitioner must demonstrate that
he or she has suffered undue prejudice as a result of the alleged delay.”) (citing Scollar v. Cece,
812 N.Y.S.2d 521 (N.Y. App. Div. 1st Dep’t 2006)); see Hayes v. New York City Dep’t of Ed.,
No. 100744/09, 906 N.Y.S.2d 772, at *9 (N.Y. Sup. Ct. Nov. 11, 2009) (table).
Plaintiff’s second and third arguments are barred by the doctrine of collateral estoppel
because they were raised and rejected in plaintiff’s Article 75 petition to vacate the arbitration
award. Collateral estoppel precludes relitigation of issues of fact and law actually litigated and
resolved in a prior court determination when those issues were essential to the prior judgment,
even if the issue recurs in the context of a different claim. Taylor v. Sturgell, 553 U.S. 880, 892
(2008). Federal courts, including in § 1983 actions, must give state-court factfinding preclusive
effect whenever the courts of the state that entered the judgment would do so. Burkybile v. Bd.

19

of Ed. of the Hastingson–Hudson Union Free Sch. Dist., 411 F.3d 306, 310 (2d Cir. 2005) (citing
Univ. of Tennessee v. Elliott, 478 U.S. 788, 799 (1986)); Saunders v. New York City Dep’t of Ed.,
No. 07 CV 2725(SJF)(LB), 2010 WL 2816321, at *14 (E.D.N.Y. July 15, 2010), modified on
reconsideration on other grounds, 2010 WL 2985031. “Under New York law, collateral
estoppel precludes a party from relitigating an issue of law when: (1) the issue in question was
actually and necessarily decided in a prior proceeding, and (2) the party against whom the
doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.”
Saunders, 2010 WL 2816321, at *18 (quoting Vargas v. City of New York, 377 F.3d 200, 205–06
(2d Cir. 2004)). The party asserting preclusion (here, defendants) carries the burden of
establishing the first element, whereas the party opposing preclusion (here, plaintiff) must
demonstrate the latter element. Id. (citing Evans v. Ottimo, 469 F.3d 278, 281–82 (2d Cir.
2006)).
Plaintiff raised identical claims relating to lack of probable cause and hearing officer bias
in her Article 75 petition. (See Pet. to Vacate Arbitration Award at 12–14, 20–22.) Those claims
were actually and necessarily decided by the Article 75 judge, who held that each claim lacked
merit. (Judgment/Order of Sept. 20, 2010 at 3.) Plaintiff has presented no evidence that she did
not have a full and fair opportunity to litigate her claims before the Article 75 court – in fact,
plaintiff submitted an extensive brief in support of her Article 75 petition, and the court issued a
written order specifically addressing her claims. See Saunders, 2010 WL 2816321, at *18
(“Plaintiff clearly had a full and fair opportunity to litigate her due process claims relating to the
Section 3020–a hearing in the [Article 75] proceeding.”). Because the Article 75 court
previously determined that the procedures employed in the § 3020-a hearing were fair, plaintiff’s
allegation that those procedures were not followed cannot support her stigma-plus claim. See id.;

20

see also Batyreva v. New York City Dep’t of Ed., No. 07 Civ. 4544(PAC)(DF), 2010 WL
3860401, at *15 (S.D.N.Y. Oct. 1, 2010) (adopting R&R) (holding that claim preclusion
precluded the court from reconsidering the fairness of a § 3020-a hearing because the Article 75
court decided that the hearing was fair).6 Plaintiff has therefore failed to raise a genuine issue of
material fact with respect to whether she was deprived of liberty in violation of the due process
clause, and defendants are entitled to summary judgment on that claim.7
V.

§§ 1981 and 1983 Retaliation Claims
In her Second and Fourth Causes of Action, plaintiff argues that defendants violated §

1981 by retaliating against her in response to her opposition to perceived racial discrimination by
Espinal-Pacheco, and violated her First Amendment rights (via § 1983) by retaliating against
plaintiff for engaging in protected speech.
a. § 1981 Retaliation Claim
6

Although some cases in this Circuit have refused to accord claim preclusive effect to Article 75
proceedings, those cases dealt with situations in which the claim sought to be precluded was outside the scope of the
Article 75 proceeding. See, e.g., Bottini v. Sadore Mgmt. Corp., 764 F.2d 116, 121 (2d Cir. 1985) (refusing to give
claim preclusive effect to Article 75 proceeding with respect to Title VII claim because that claim was outside the
scope of the underlying arbitration proceeding, and therefore also outside the scope of the Article 75 proceeding);
Halstead v. New York City Transit Auth., No. 1:99-CV-03450-CBA, 2002 WL 34438897, at *5–6 (E.D.N.Y. Dec.
30, 2002) (refusing to apply collateral estoppel because plaintiff did not raise “the same issues [in his Article 75
petition] that he now raises in his federal lawsuit,” and because the Article 75 opinion did not clearly indicate which
issues were actually litigated and decided).
7

Although plaintiff highlights her status as a tenured teacher in arguing that she suffered a deprivation of a
liberty interest, plaintiff does not allege, either in her complaint or in her opposition to defendants’ summary
judgment motion, that she had a protected property interest in continued employment as a tenured teacher. (See
Pl.’s Opposition at 24–31.) Plaintiff has therefore failed to properly plead a violation of her property interest in
continued employment as a tenured teacher. See Huff v. West Haven Bd. Of Ed., 10 F. Supp. 2d 117, 122–23 (D.
Conn. 1998). Even assuming that plaintiff’s passing reference to a property interest in her motion papers is
sufficient to state such a claim, defendants would be entitled to summary judgment on that claim. With respect to
the period that plaintiff was assigned to the relocation center and suspended with pay, she was not deprived of a
property interest. Adams v. New York State Ed. Dep’t, 752 F. Supp. 2d 420, 453 (S.D.N.Y. 2010) (“An employee
who continues to be paid cannot ‘sustain a claim for deprivation of property without due process’ even if relieved
from job duties.”); Ramberran, 2008 WL 905217, at *4 (holding that a suspension with pay does not require due
process protection); Montefusco v. Nassau Cnty., 39 F. Supp. 2d 231, 239 (E.D.N.Y. 1999) (holding that plaintiff
was not deprived of a property interest while he was suspended with pay); see O’Connor v. Pierson, 426 F.3d 187,
200 (2d Cir. 2005) (holding that plaintiff was effectively suspended without pay, and therefore entitled to due
process protections, when placed on unpaid sick leave). Second, with respect to the period that plaintiff was
suspended without pay, she received all the process she was due in the form of a full-blown § 3020-a hearing, as
described supra.

21

Section 1981 “encompasses a complaint of retaliation against a person who has
complained about a violation of another person’s contract-related ‘right.’” CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 445 (2008). Such claims are analyzed under the McDonnel Douglas
burden-shifting framework, outlined above with respect to plaintiff’s race discrimination claim.
Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001); see Hicks v. Baines, 593 F.3d 159, 166 (2d
Cir. 2010) (citing Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). To
state a prima facie case, plaintiff must adduce evidence that the she engaged in “protected
activity,” which under § 1981 encompasses complaints about a violation of another’s contractrelated rights on account of race. Eugenio v. Walder, No. 06-CV-4928 (CS)(GAY), 2009 WL
1904526, at *13 (S.D.N.Y. July 2, 2009) (citing Domino’s Pizza, Inc. v. McDonald, 546 U.S.
470, 476 (2006)). “Any claim brought under § 1981 . . . must initially identify an impaired
‘contractual relationship,’ . . . under which the plaintiff has rights.” Id. (quoting Domino’s
Pizza, Inc., 546 U.S. at 476); see 42 U.S.C. § 1981. To survive summary judgment, plaintiff
must therefore present evidence of retaliation against her because she complained about a
violation of another person’s contract-related right. See Rodriguez v. Int’l Leadership Charter
Sch., No. 08 Civ. 1012(PAC), 2009 WL 860622, at *6 (S.D.N.Y. Mar. 30, 2009) (quoting
CBOCS West, Inc., 553 U.S. at 445).
Plaintiff alleges that she engaged in two instances of activity protected by § 1981: First,
plaintiff testified at a January 2005 suspension hearing on behalf of the student Espinal-Pacheco
sought to suspend. Second, plaintiff spoke out against Espinal-Pacheco’s allegedly racist
treatment of parents and students, punishment of students, interference with the PTA, and “DOE
cronyism” in connection with her June 2006 campaign for Union Chapter Leader. Plaintiff also

22

points to two allegedly adverse employment actions: the June 2006 disciplinary letter, and the
911 call and subsequent disciplinary charges.
Plaintiff has not raised a genuine issue of material fact regarding whether the above
instances of speech constituted protected activity pursuant to § 1981 because her submissions are
utterly devoid of any suggestion that defendants violated a contract right possessed either by
plaintiff or by the African American students or parents of P.S. 147.

At the suspension hearing,

plaintiff did not testify regarding the contract rights of African American students and parents, or
even regarding perceived discrimination against such students and parents. (Pl.’s & Defs.’ 56.1
at ¶58.) In fact, when asked at her deposition whether her testimony addressed what she
perceived as discrimination against African American students, plaintiff replied “absolutely not.”
(Blythe Dep. at 25–26, 28.) Because plaintiff has presented no evidence demonstrating that this
testimony constituted a complaint regarding a violation of her own, or anyone else’s, contract
rights, the testimony cannot constitute protected activity pursuant to § 1981. See Domino’s
Pizza, Inc., 546 U.S. at 476 (holding that any claim brought under § 1981 must identify an
impaired contractual relationship); Rodriguez, 2009 WL 860622, at *6 (granting motion to
dismiss because plaintiff did not allege a violation of students’ contract-related rights based on
race or national origin); Foxworth v. American Bible Society, No. 03 Civ. 3005(MBM), 2005
WL 1837504, at *4 n.5 (S.D.N.Y. July 28, 2005), aff’d 180 Fed. App’x 294, 294–95 (2d Cir.
2006).
Plaintiff’s campaign statements regarding what she perceived as disparate treatment of
African American students and parents was not protected activity for the same reason – plaintiff
neither alleged, nor presented any evidence, that she complained that any disparate treatment
infringed students’ or parents’ contract rights based on race. Perceived racial discrimination is

23

not “protected” under § 1981 if it “did not impair such students’ rights to enter into contracts or
rights under any existing contractual relationships.” Eugenio, 2009 WL 1904526, at *13
(granting summary judgment against school staff who complained about racial discrimination
against African American students but did not present evidence of a violation of students’
contract rights, and citing cases); DiStiso v. Town of Wolcott, No. 3:05cv01910 (PCD), 2006 WL
3355174, at *7 (D. Conn. Nov. 17, 2006) (“[B]ecause Plaintiff has not alleged any contractual
relationship between [a student] and any of the Defendants [the local board of education, the
town, and school officials], her claims brought pursuant to § 1981 fail to state a claim upon
which relief can be granted.”).
Plaintiff has therefore failed to make out a prima facie case of retaliation pursuant to §
1981, and defendants are entitled to summary judgment on that claim.
i. Defendants’ Legitimate Nonretaliatory Reason
Even assuming that plaintiff made out a prima facie case of § 1981 retaliation, defendants
have presented evidence showing legitimate, non-retaliatory reasons for both the disciplinary
letter, and the 911 call and subsequent filing of disciplinary charges against plaintiff. See Isaac
v. City of New York, 271 Fed. App’x 60, 63 (2d Cir. 2008) (citing Jute, 420 F.3d 179–80). The
disciplinary letter was written because plaintiff was, in fact, excessively absent during the 2005–
2006 school year without justification. The hearing officer at plaintiff’s § 3020-a hearing –
whose factfinding is entitled to preclusive effect – determined that plaintiff was absent 18 times
during the 2005–2006 school year and that those absences were excessive and not excused.
Burkybile, 411 F.3d at 311 (citing Elliott, 478 U.S. at 798–99) (holding that factfinding in §
3020-a hearing must be given preclusive effect); see Hunt v. Klein, 476 Fed. App’x 889, 891 (2d
Cir. 2012); Roemer, 150 Fed. App’x at 39; Saunders, 2010 WL 2816321, at *15–18; Page v.

24

Liberty Cent. Sch. Dist., 679 F. Supp. 2d 448, 452 (S.D.N.Y. 2010) (noting that plaintiff did not
dispute the fact that findings reached in her § 3020-a hearing were entitled to preclusive effect in
federal court); (Arbitrator’s Opinion & Award (Doc. No. 56 Ex. SS) at 13–15.)
Defendants have also proffered a legitimate nonretaliatory reason for the 911 call and
subsequent disciplinary charges. Student A and her mother accused plaintiff of grabbing Student
A with sufficient force to rip her shirt and pop the buttons and, after Espinal-Pacheco reported
the incident to the EIC, the EIC operator informed her that Student A’s mother could call the
police because of the age of the student and the seriousness of the incident. Moreover, the OSI
later substantiated this allegation after conducting an investigation, and the hearing officer – after
reviewing extensive testimony – found that plaintiff did grab Student A, leaving marks on
Student A’s shoulder. (Arbitrator’s Opinion & Award at 13–15, 34.) These determinations rebut
any inference that defendants’ actions were taken in retaliation for opposition to protected
activity.
ii. Plaintiff’s Showing of Pretext
Plaintiff further argues that the allegations in the June 19, 2006 disciplinary letter – which
stated that plaintiff was excessively absent, left a class unattended, and conducted herself in an
unprofessional manner – were pretextual because (1) the letter was written a year after the
meeting it purported to describe, and (2) plaintiff submitted medical documentation for her
absences. Plaintiff also alleges that the February 15, 2007 911 call was pretextual because
Student A’s claims were “false or exaggerated,” and therefore Espinal-Pacheco used these
occasions as opportunities to target plaintiff because of her testimony and campaign statements.
Although it is not necessary to reach this prong of the McDonnell Douglas test in light of the fact
that plaintiff failed to make out a prima facie case, the Court nonetheless discusses it because

25

plaintiff’s claim is premised almost entirely on her argument that defendants’ actions were
pretextual.
To show that defendants’ asserted reasons were pretextual, plaintiff need not show that an
illegitimate reason was the sole motivating factor for the adverse actions, Fields v. New York
State Office of Mental Retardation and Developmental Disabilities, 115 F.3d 116, 120 (2d Cir.
1997), but need only show that “retaliation was a substantial reason for [defendants’] adverse
actions.” Jute, 420 F.3d at 180; see Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117
(2d Cir. 2000).
Plaintiff first argues that the June 19, 2006 letter in fact memorialized a meeting that
took place in June 2005 – a full year before the letter was written or presented to plaintiff. This
delay, plaintiff claims, indicates that Espinal-Pacheco did not write the letter until plaintiff began
campaigning, and that the letter was therefore in retaliation for her campaign statements. This
argument is clearly belied, however, by the letter itself. (Disciplinary Letter of June 19, 2006 at
2; see Blythe Aff. at ¶ 16). The letter itself is dated June 19, 2006 on the first page and June 16,
2006 on the second page; handwritten notations made on the letter reflect dates of June 19, 2006
and June 21, 2006. Plaintiff’s argument is premised on the fact that the letter’s first paragraph
states that the disciplinary meeting took place on June 1, 2005. This date, however, is clearly a
typo. The letter discusses misconduct that took place between September 2005 and May 2006,
and Espinal-Pacheco and plaintiff could not possibly have discussed such conduct at a June 2005
meeting (before the conduct occurred). In addition, plaintiff testified in her deposition that the
meeting referenced in the letter took place in June 2006, not June 2005. (Blythe Dep. at 253.)
Although the Court is mindful that it must not resolve factual disputes on summary judgment and
must draw all reasonable inferences in the nonmovant’s favor, the above facts demonstrate that

26

no reasonable jury could find that the letter memorializes a June 1, 2005 meeting, but instead
referred to a meeting that took place on June 1, 2006. Therefore, the letter was not written
belatedly and its date does not support an inference of pretext.
Plaintiff also argues the accusations of excessive absences in the disciplinary letter were
groundless because plaintiff was hospitalized for many of those dates; therefore, the charge of
excessive absences was pretextual and retaliatory. To support this claim, plaintiff cites to
testimony from her § 3020-a hearing. (See Pl.’s 56.1 at ¶ 64.) However, after carefully
reviewing that testimony, the hearing officer determined that, although more than half of those
absences were medically documented, plaintiff failed to prove that she was hospitalized, or if she
was hospitalized the dates of any such hospitalization. (Arbitrator’s Opinion & Award of May
11, 2010, at 13–14.) Moreover, the hearing officer found that Espinal-Pacheco suggested that
plaintiff consider taking FMLA leave, and that plaintiff declined to do so. (Id. at 14–15.) The
hearing officer concluded that plaintiff was guilty of excessive absences and that those absences
were not excused. (Id. at 15.) Because these findings are entitled to preclusive effect, see
Burkybile, 411 F.3d at 313, the Court is unable to conclude that plaintiff was hospitalized or that
her absences were otherwise excused.
Plaintiff has therefore failed to show that defendants’ legitimate nondiscriminatory
reasons were pretextual, and summary judgment is warranted in favor of defendants on
plaintiff’s § 1981 retaliation claim.
b. First Amendment Retaliation Claim
To state a prima facie claim of First Amendment retaliation under § 1983, plaintiff must
offer some tangible proof that (1) her speech was constitutionally protected; (2) she suffered an
adverse employment action; and (3) a causal relationship between the two existed in that the

27

speech was a substantial or motivating factor for the adverse employment action. Burkybile, 411
F.3d at 313 (citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)). Even if plaintiff makes
out a prima facie case, defendant can still prevail on a motion for summary judgment if it shows
that it “would have taken the same adverse employment action ‘even in the absence of the
protected conduct.’” Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 251–52 (2d
Cir. 2006).
Plaintiff argues that defendants violated her First Amendment rights by retaliating against
her based on protected speech, pointing to the same two instances of speech underlying her §
1981 retaliation claim (the suspension hearing testimony and campaign statements) and the same
two employment actions8 (the June 19, 2006 disciplinary letter and February 15, 2007 911 call
and arrest).
Plaintiff has failed to raise a genuine issue of material fact regarding a causal link
between the suspension hearing testimony and either the disciplinary letter or the 911 call. A
plaintiff can demonstrate a causal connection “indirectly by showing that the protected activity
was followed by adverse treatment in employment, or directly by evidence of retaliatory
animus.” Gangadeen v. City of New York, 654 F. Supp. 2d 169, 184 (S.D.N.Y. 2009) (quoting
Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004)). A close temporal connection between
plaintiff’s speech and the employment action may establish causation when the temporal
proximity is “very close,” and the Second Circuit has prescribed no bright line beyond which an
inference of causation is not permitted. Gangadeen, 654 F. Supp. 2d at 184 (quoting Clark
8

Although the Court held supra that the disciplinary letter was not materially adverse for purposes of
plaintiff’s discrimination claim, a less stringent standard for what constitutes an adverse employment action applies
to First Amendment retaliation claims. An employment action is adverse for First Amendment retaliation purposes
if it “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional
rights.” Burkybile, 411 F.3d at 313 (quoting Washington v. Cnty. of Rockland, 373 F.3d 310, 320 (2d Cir. 2004)).
Under this lower standard, the disciplinary memo and 911 call are both likely adverse. See Washington, 373 F.3d
310 (holding that the threat of administrative disciplinary proceedings and a thirty-day suspension without pay
constituted adverse employment actions for First Amendment retaliation purposes).

28

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). “Nevertheless, a plaintiff may not rely
on conclusory assertions of retaliatory motive to satisfy the causal link. Instead, he must produce
some tangible proof to demonstrate that his version of what occurred was not imaginary.” Id.
(quoting Cobb, 363 F.3d at 108) (internal quotation marks omitted).
Plaintiff has presented no evidence whatsoever that the testimony was a “substantial or
motivating factor” behind either the letter or the 911 call. Plaintiff merely asserts that EspinalPacheco wanted to “get back at” plaintiff for testifying against her wishes – an unsupported
allegation that is wholly insufficient to raise a genuine issue of material fact. See Scotto, 143
F.3d at 114 (noting that the non-moving party “may not rely on conclusory allegations or
unsubstantiated speculation.”). Moreover, the suspension hearing testimony took place nearly a
year and a half before the disciplinary letter, and more than two years before the 911 call, and is
thus far too temporally distant from the letter and 911 call to imply causation because of a close
temporal link. See Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011) (holding that a delay of
six weeks between an employer learning of plaintiff’s speech and taking an adverse employment
action supported an inference of causation).
Plaintiff has also failed to demonstrate that the campaign statements were a “substantial
or motivating factor” behind the disciplinary letter or the 911 call. Although the disciplinary
letter was written and presented to plaintiff shortly after her campaign statements critical of
Espinal-Pacheco, plaintiff has presented no evidence to show that the alleged causal connection
between the campaign statements and the letter was “not imaginary.” First, plaintiff has
presented no evidence respecting the contents of her campaign statements, and merely asserts
that she “spoke out” regarding what she believed to be disparate treatment of African Americans
and Hispanics by Espinal-Pacheco. See Gangadeen, 654 F. Supp. 2d at 189 (noting that, where

29

plaintiff did not specify the contents of allegedly protected speech, it was difficult to assess
whether that speech was protected). Moreover, plaintiff has presented no evidence beyond her
own speculation that the campaign statements were a motivating factor behind the disciplinary
letter. In fact, the disciplinary letter simply memorialized a June 1, 2006 disciplinary meeting at
which Espinal-Pacheco and plaintiff discussed plaintiff’s alleged misconduct, all of which took
place well before the campaign statements were made. Because Espinal-Pacheco had already
contemplated disciplining plaintiff with respect to these incidents of misconduct, composing and
presenting the disciplinary letter memorializing a prior meeting is “no evidence whatever of
causality.” Id. (quoting Clark Cnty. Sch. Dist., 532 U.S. at 272). Rather than supporting an
inference of discriminatory animus, this chronology shows that Espinal-Pacheco had already
commenced the process of disciplining plaintiff before she made any campaign statements, and
that plaintiff’s prior misconduct (rather than the campaign statements) gave rise to the letter.
Likewise, plaintiff has presented no evidence suggesting a causal link between the
campaign statements and the 911 call. In addition, the 911 call took place eight months after the
campaign statements, a time period that numerous courts have concluded is too remote to
support an inference of causation, although other courts have held that even longer delays
supported an inference of causation. See Gorman-Bakos v. Cornell Co-op Extension of
Schenectady Cnty., 252 F.3d 545, 554–55 (2d Cir. 2001) (citing cases). The Court need not
decide whether an eight month period is sufficient because, for the reasons described above in
connection with plaintiff’s discrimination claim, defendants have demonstrated that they would
have called 911 without respect to plaintiff’s campaign statements because plaintiff was accused
of corporal punishment by a student and parent, a charge that was later substantiated. See

30

Cotarelo, 460 F.3d at 251–53. Defendants are therefore entitled to summary judgment on
plaintiff’s First Amendment retaliation claim.
VI.

§ 1983 False Arrest/False Imprisonment Claim
Plaintiff alleges that she was falsely arrested and imprisoned, and was subjected to an

unnecessary and humiliating strip search in violation of §§ 1983 and 1985.9
Under both § 1983 and New York law, the elements of a false imprisonment claim are
“(1) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the
confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not
otherwise privileged.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (citing
Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992) (The elements of a claim of false arrest under
§ 1983 are “substantially the same” as the elements of a false arrest claim under New York
law.”). If probable cause existed for the arrest, the arrest is “otherwise privileged” and the fourth
prong is not satisfied. Singer, 63 F.3d at 118–19 (citing Bernard v. United States, 25 F.3d 98,
102 (2d Cir. 1994)).
Because probable cause existed for plaintiff’s arrest, the arrest is privileged and plaintiff
cannot make out a prima facie claim of false imprisonment. Information provided by an
identified citizen accusing another individual of committing a specific crime is sufficient to
provide the police with probable cause to arrest. See People v. Lacen, 546 N.Y.S.2d 378 (N.Y.
Sup. Ct. 1989) (quoting People v. Douglas, 526 N.Y.S.2d 544 (N.Y. Sup. Ct. 1988)); People v.
Cruz, 526 N.Y.S.2d 979 (N.Y. Sup. Ct. 1988). Here, an identified individual (Student A’s
mother) called 911 and reported that plaintiff had put her hands on Student A and forced her

9

Although plaintiff alleges both false arrest and false imprisonment, false arrest is a species of false
imprisonment and the two claims are analyzed in the same way. See Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118
(2d Cir. 1995).

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back into her seat numerous times. (See Mathew Dep. (Doc. No. 56 Ex. W) at 12:10–13:24.)
After the officers arrived, they corroborated the information contained in the 911 call: the child
complained of “a little bit of pain,” and the officers observed “a little bit of redness.” (Id.)
These facts were sufficient to give the officers probable cause to arrest plaintiff.10 See also
Mackenzie v. Cnty. Of Nassau, 46 Fed. App’x 22, 23 (2d Cir. 2002) (holding that “a statement
that [plaintiff] was one of the participants in an assault and obvious injuries to the victim,” taken
together, established probable cause to arrest plaintiff for assault).
VII.

§§ 1983/1985 Unlawful Strip Search Claim

Plaintiff’s unlawful strip search claim must also be dismissed because the Court cannot
grant relief on this claim against the defendants named in this lawsuit. Plaintiff is correct that
strip searches of persons arrested on misdemeanor charges are illegal absent reasonable suspicion
that the person is concealing contraband or weapons. Weber v. Dell, 804 F.2d 796, 802 (2d Cir.
1986). Plaintiff has not, however, sued the NYPD, the county, or the officer who allegedly
conducted the strip search. See, e.g., id. at 802–03 (holding county liable for enforcing an
unconstitutional strip search policy, and holding Sherriff liable as a policymaker for
promulgating that policy). In addition, the City of New York cannot be liable for the strip search
because plaintiff has neither alleged nor provided any evidence of a city-wide policy or practice
of unconstitutional strip searches. Harper v. City of New York, No. 11 Civ. 4333(CM), 2013 WL
432599, at *2 (S.D.N.Y. Jan. 21, 2013) (holding that the City of New York was not a proper
defendant for claims of false arrest and malicious prosecution because plaintiff did not allege a
Monell claim); see Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690 (1978).
10

In addition, for the reasons stated supra, plaintiff is precluded from challenging the fact that she grabbed
the child based on the § 3020-a hearing officer’s determination that “[plaintiff] grabbed a first grade child with
sufficient force that she tore the collar of her shirt and popped the buttons. She grabbed the child with sufficient
intensity that she left marks on the student’s shoulder.” (Arbitrator’s Opinion & Award at 34.) This factual
determination contributes to the existence of probable cause.

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Espinal-Pacheco and Broadhurst had nothing to do with the strip search, and therefore cannot be
held liable for its alleged unconstitutionality. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006) (“personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”) (quoting Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994)). Finally, plaintiff has not alleged that Officer Mathew or Lieutenant Gallagher
had any personal involvement in the strip search, and has not sued the officers who did
participate in the search. The false arrest claim must therefore be dismissed against Mathew and
Gallagher as well. Harper, 2013 WL 432599, at *2 (“The individual police officers who arrested
Plaintiff would be proper defendants for the false arrest and malicious prosecution claims, but
[p]laintiff has sued no police officers.”).
Defendants are also entitled to summary judgment with respect to plaintiff’s claim for
conspiracy to violate civil rights under § 1985(3). The elements of such a claim are (1) a
conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of
persons of equal protection of the laws; (3) an act in furtherance of the conspiracy; (4) whereby a
person is deprived of any right of a citizen of the United States. Brown v. City of Oneonta, New
York, 221 F.3d 329, 341 (2d Cir. 2000). The conspiracy must be motivated by racial animus. Id.
Plaintiff has offered no evidence whatsoever of a conspiracy to falsely arrest or imprison her, or
that her arrest and imprisonment were motivated by racial animus. See id.
VIII. Plaintiff’s Motion to Amend Her Complaint11

11

Plaintiff filed a motion to amend her complaint on November 30, 2010, which was terminated from the
docket because it was docketed in contravention of the Court’s individual rules. Thereafter, plaintiff neither
submitted a new motion to amend her complaint nor presented any legal argument in her opposition to summary
judgment respecting the motion to amend. The Court has therefore referred to plaintiff’s incorrectly filed motion of
November 30, 2010 to glean plaintiff’s grounds for seeking leave to amend, and in determining that any amended
complaint would be futile.

33

Plaintiff moves to amend her complaint to add a separate due process claim challenging
the § 3020-a hearing on the same grounds she raised in her due process liberty interest claim.
Allowing plaintiff to add a separate due process claim challenging the § 3020-a hearing would be
futile because the Court has already considered and rejected these arguments in ruling on
plaintiff’s existing due process claim. See Dougherty v. Town of North Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (“Undue delay, bad faith or dilatory motive on the part
of the movant . . . or futility of amendment will serve to prevent an amendment prior to trial.”)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
IX.

Defendants the City of New York and the Department of Education
Plaintiff’s complaint also names the City of New York and the DOE as defendants. (Am.

Compl. at ¶ 4.) Claims under § 1983 can be brought against a municipality or municipal agency
only when the municipality’s official policy or practice causes the violation, and plaintiff has
neither alleged nor provided any evidence of an official policy or practice of the City or the
DOE. See Monell, 436 U.S. at 694. Therefore, although the Court has already determined that
none of plaintiff’s claims have substantive merit against any defendant, summary judgment is
further warranted against the City of New York and DOE because plaintiff has not raised a
genuine issue of material fact with respect to her Monell claim.
X.

Defendant Lieutenant Gallagher
The docket indicates that Lieutenant Gallagher was never properly served pursuant to

Fed. R. Civ. P. 4 and has not entered an appearance in this case, and plaintiff has offered no
reason why the Court should extend the time to serve.12 In addition to the reasons given above,
all claims against Gallagher are therefore dismissed for failure to serve process.

12

Gallagher apparently has never been served, appeared, or otherwise participated in this litigation, which
began when plaintiff filed her complaint on July 16, 2008. Docket Number 25 ordered plaintiff to serve Gallagher

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CONCLUSION
For the reasons stated above, defendants’ motion for summary judgment is GRANTED in
its entirety, and plaintiff’s motion to amend her complaint is DENIED. The Clerk of Court shall
enter judgment accordingly, and close this case.
SO ORDERED.

Roslynn R. Mauskopf

Dated: Brooklyn, New York
August 5, 2013

______________________________
ROSLYNN R. MAUSKOPF
United States District Judge

by December 18, 2009, and no docket entry since that date reflects completion of service. The Court therefore
dismisses plaintiff’s claims against Gallagher for failure to effect service by December 18, 2009, as specified in
Magistrate Judge Pollak’s November 30, 2009 order.

35