Ok v. New York City Department of Education et al

Filing 21

MEMORANDUM DECISION AND ORDER dated 5/7/18 that the Court grants in part and denies in part defendants' 18 Motion to Dismiss. Plaintiffs defamation and libels claims are dismissed. The remaining claims are stayed pending the outcome of plaintiffs § 3020-a hearing. Defendants are directed to advise the Court of the status of the § 3020-a proceedings by June 1, 2018 and every 60 days thereafter. In the event the § 3020-a proceedings become protracted for reasons other than plaintiffs conduct in those proceedings, the Court may reconsider this stay. ( Ordered by Judge Brian M. Cogan on 5/7/2018 ) (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
SEUNG-YONG OK,
:
:
Plaintiff,
:
: MEMORANDUM
- against : DECISION AND ORDER
:
NEW YORK CITY DEPARTMENT OF
: 18-cv-0392 (BMC)
EDUCATION, TYEE CHIN, and LUIS
:
AGUIRRE AMAYA,
:
:
Defendants.
:
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COGAN, District Judge.
Plaintiff and former teacher Seung-Yong Ok sued the New York City Department of
Education, Flushing High School principal Tyee Chin, and assistant principal Luis Aguirre
Amaya under 42 U.S.C. § 1983 and New York Civil Service Law § 75-b for what he claims was
retaliation because he reported Chin for fraud and misconduct. Based on the same actions,
plaintiff also brought claims for negligent infliction of emotional distress, defamation, and libel
under New York common law. 1 Defendants now move to dismiss some of the claims and to stay
the remaining claims pending the outcome of plaintiff’s disciplinary hearing. For the reasons
given below, defendants’ motion is granted in part and denied in part.
Defendants move to dismiss the defamation and libel claims based on plaintiff’s failure to
state a claim. “To state a claim for defamation under New York [l]aw, the plaintiff must allege
(1) a false statement about the plaintiff; (2) published to a third party without authorization or
privilege; (3) through fault amounting to at least negligence on [the] part of the publisher; (4)
that either constitutes defamation per se or caused special damages.” Thai v. Cayre Grp., Ltd.,
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Plaintiff has since withdrawn his claims for intentional infliction of emotional distress.

726 F. Supp. 2d 323, 329 (S.D.N.Y. 2010) (second alteration in original) (quoting Gargiulo v.
Forster & Garbus Esqs., 651 F. Supp. 2d 188, 192 (S.D.N.Y. 2009)).
“Special damages consist of the loss of something having economic or pecuniary value
which must flow directly from the injury to reputation caused by the defamation[.]” Id. at 330
(quoting Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 179 (2d Cir. 2000)). A plaintiff
must allege special damages “with sufficient particularity to identify actual losses.” Id.
The defamation and libel claims against defendant Chin must be dismissed because
plaintiff has failed to plead a non-opinion statement or special damages. Plaintiff alleges with
particularity only a single statement by defendant Chin. He alleges that on November 30, 2016,
defendant Chin sent the following to plaintiff in a school-wide email: “Your reckless actions
will cost people their jobs and affect students and family. If the school goes into independent
receivership or closure we are all out of a job.” In the same email, defendant Chin allegedly
asserted that plaintiff’s actions (which plaintiff claims were public speech on matters of public
concern) constituted “continuous negativity.”
These statements are not statements of fact. They are pure opinions, which are not
actionable under New York law. See Celle, 209 F.3d at 178; Adelson v. Harris, 973 F. Supp. 2d
467, 490 (S.D.N.Y. 2013) (“[A] simple expression of opinion based on disclosed ...
nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified
and unreasonable the opinion may be or how derogatory it is.”). But even if the statement was
one of fact, plaintiff does not allege any special damages. Plaintiff’s libel and defamation claims
against plaintiff Chin are therefore dismissed.
Plaintiff does not identify any allegedly defamatory or libelous statements by defendant
Amaya; the Court therefore dismisses the defamation and libel claims against that defendant.

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Defendants have also moved to dismiss plaintiff’s First Amendment retaliation claims
under 42 U.S.C. § 1983. Plaintiff alleged § 1983 claims against the individual defendants and
against the Department of Education under Monell v. Department of Social Services, 436 U.S.
658 (1978), based on defendant Chin’s allegedly unconstitutional actions taken as a policymaker
for the Department. See Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000).
For a public employee to establish a First Amendment retaliation claim, he must first
establish that his speech was protected by showing (1) that he spoke as a citizen and (2) that he
spoke on a matter of public concern. Lane v. Franks, 134 S. Ct. 2369, 2378 (2014). For the first
element, the Supreme Court has looked to whether the public employee made the statement
“pursuant to [his] official duties” to determine if the employee spoke as a citizen. See Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006). The Supreme Court later clarified that “[t]he critical
question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Lane, 134 S. Ct. at 2379.
As to the second element, speech involves a matter of public concern “when it can be
fairly considered as relating to any matter of political, social, or other concern to the community,
or when it is a subject of legitimate news interest; that is, a subject of general interest and of
value and concern to the public.” Id. at 2380 (quoting Snyder v. Phelps, 562 U.S. 443, 453
(2011)). The inquiry turns on the “content, form, and context” of the speech. Lane, 134 S. Ct. at
2380 (quoting Connick v. Myers, 461 U.S. 138, 147 (1983)). Both elements of the test,
therefore, are highly fact-intensive.
Defendants argue that plaintiff does not plausibly allege that he engaged in protected
speech outside the scope of his employment by the Department of Education or allege causation
between any of his protected activity and any alleged retaliatory action by defendants. However,

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the Court cannot conclude in the Rule 12(b)(6) context that plaintiff’s speech was made pursuant
to his official duties and that it did not address a matter of public concern.
Plaintiff alleges that he contacted the Department’s chancellor and “several other highranking NYC DOE officials” about a policy imposed by Principal Chin, “where teachers who
had a passing rate of less than 75 percent were mandated to compile paperwork that was
excessive and burdensome.” According to the complaint, plaintiff was concerned that this policy
was punitive and designed to deter teachers from failing students. Plaintiff also alleges that he
expressed the same concern about the policy to the Special Commissioner of Investigations in an
email he sent on March 28, 2016. In the same email, plaintiff also alleged that on March 14,
2016, Principal Chin warned teachers that teaching positions at the school would be lost if they
wrote negative responses on the Department of Education’s annual teacher survey. As alleged in
the complaint, that investigator forwarded plaintiff’s email to the Department’s Office of Special
Investigations, which contacted plaintiff directly on April 20, 2016. Plaintiff repeated the
allegations to an OSI investigator, and allegedly provided the investigator with internal memos,
audio recordings, and audio transcripts substantiating his concern.
Although plaintiff’s communications to representatives of the DOE’s Special
Commissioner of Investigations and the Office of Special Investigations concerned his grading
duties as a teacher, they were not obviously within the scope of his duties as a teacher.
Moreover, plaintiff’s alleged statements to the Special Commissioner of Investigations and the
Office of Special Investigations described a grading policy designed to advance students who by
rights should have failed. If the policy did in fact exist, it would amount to a subject of general
interest and of value and concern to the public.

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Defendants also argue that plaintiff has not adequately alleged the adverse actions he
suffered were caused by his speech. The structure of plaintiff’s complaint and several of his
allegations make clear that he is alleging that defendants took certain actions because of his
speech to the two investigations units. Plaintiff alleges that before defendant Chin discovered
that plaintiff had complained about him to the Department, defendant Chin signed off on a very
positive teaching review for plaintiff for the 2015-2016 school year. Plaintiff alleges that
defendant Chin found out about plaintiff’s formal complaint after that review. The next section
of the chronological narrative in plaintiff’s complaint, entitled “retaliation during the 2016-2017
school year,” lists disciplinary letters plaintiff received based on his job performance and
defendant Chin’s complaint against plaintiff filed with the Special Commissioner of
Investigations. Plaintiff has, at this stage, adequately alleged causation.
Defendants’ motion to dismiss plaintiff’s First Amendment retaliation claims is therefore
denied.
Finally, defendants move to dismiss plaintiff’s claims under New York Civil Service Law
§ 75-b for failure to exhaust administrative remedies, or, in the alternative, move to stay this
proceeding pending the outcome of plaintiff’s disciplinary hearing under New York Education
Law § 3020-a. Civil Service Law § 75-b provides various remedies for government employees
who believe they were wrongfully disciplined. For those employees subject to dismissal or other
disciplinary action under a “ disciplinary procedure contained in a collectively negotiated
agreement,” the employee may assert the wrongful discipline as a defense in the course of that
disciplinary procedure (for example, at a § 3020-a hearing). N.Y.C.S.L. § 75-b(3)(a). Only
employees disciplined through a process that was not collectively negotiated may sue. See id.
§ 75-b(3)(c); see also Singh v. City of N.Y., 418 F. Supp. 2d 390, 403 (S.D.N.Y. 2005).

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Plaintiff does not dispute that he is being subject to discipline under a collectivebargaining agreement. Defendants contend (and plaintiff does not contest) that the charges
currently pending against plaintiff arose out of his conduct at a February 2017 Parents
Association meeting and out of plaintiff’s school-wide emails. Plaintiff’s complaint alleges that
those charges are one of several instances of retaliation against him.
Plaintiff’s § 3020-a hearing will address one of the key issues underlying his retaliation
claims under 42 U.S.C. § 1983 and Civil Service Law § 75-b. Therefore, the Court will stay this
proceeding pending the outcome of that § 3020-a hearing. Plaintiff urges the Court not to stay
this case, pointing to instances of retaliation alleged in his federal complaint that will not be
addressed in the § 3020-a hearing, such as the disparaging teacher evaluations he received in
December 2016, and March, May, and June 2017. However, even if the § 3020-a hearing does
not resolve the entire case, it may well narrow the issues because findings from a § 3020-a
hearing are entitled to preclusive effect. See Burkybile v. Bd. of Educ., 411 F.3d 306, 311 (2d
Cir. 2005); see also Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 115, 119 (2d Cir. 2002).
Because plaintiff’s unexhausted claims under the Civil Services Law are factually intertwined
with his § 1983 claims, the Court stays this case until after the § 3020-a proceeding on those
claims is complete.
CONCLUSION
The Court grants in part and denies in part [18] defendants’ motion to dismiss. Plaintiff’s
defamation and libels claims are dismissed. The remaining claims are stayed pending the
outcome of plaintiff’s § 3020-a hearing. Defendants are directed to advise the Court of the status
of the § 3020-a proceedings by June 1, 2018 and every 60 days thereafter. In the event the

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§ 3020-a proceedings become protracted for reasons other than plaintiff’s conduct in those
proceedings, the Court may reconsider this stay.
SO ORDERED.
/s/(BMC)
U.S.D.J.
Dated: Brooklyn, New York
May 7, 2018

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