Talley v. Brentwood Union Free School District et al
Filing
125
MEMORANDUM AND ORDER: For the reasons set forth in the attached decision, defendants motions for summary judgment are granted in part and denied in part. This matter is respectfully REFERRED back to the Honorable E. Thomas Boyle for final pretrial supervision.Ordered by Judge Denis R. Hurley on 9/5/2012. (Malley, Sean)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------X
KEIRA TALLEY,
Plaintiff,
-against-
MEMORANDUM & ORDER
08 CV 790 (DRH)(ETB)
BRENTWOOD UNION FREE SCHOOL DISTRICT;
BRENTWOOD BOARD OF EDUCATION;
GALE KIRKHAM, in her individual capacity and
as a member of the Board of Education for the
Brentwood School District; TOMAS DEL RIO,
in his individual capacity and as a member of the
Board of Education for the Brentwood School
District; JOSEPH FRITZ, in his individual
capacity and as a member of the Board of Education
for the Brentwood School District; and RESIDENTS
FOR BETTER SCHOOLS OF BRENTWOOD AND
NORTH BAY SHORE, NEW YORK, INC., a
Not-for-Profit Organization,
Defendants.
----------------------------------------------------X
APPEARANCES:
Ilana L. Deutsch, Esq.
Attorney for Plaintiff
353 Veterans Memorial Highway, Suite 210
Commack, New York 11725
Sokoloff Stern LLP
Attorneys for Defendants Gale Kirkham, Tomas Del Rio, and Joseph Fritz
355 Post Avenue, Suite 201
Westbury, New York 11590
By:
Adam I. Kleinberg, Esq.
Anthony F. Cardoso, Esq.
Lewis Silverman, Esq.
Attorney for Defendants Brentwood Union Free School District and Brentwood Board of
Education
369 Lexington Avenue, 8th Floor
New York, New York 10017
HURLEY, Senior District Judge:
Plaintiff brings this action against her former employer, the Brentwood Union Free
School District (the “District”), the Brentwood Board of Education (the “Board”) (collectively,
the “Brentwood defendants”), and three Board members. 1 The Court previously dismissed
several claims in this action, but allowed plaintiff to proceed on (1) her intimate association
claim under the First Amendment against the District, the Board, Gale Kirkham (“Kirkham”),
Tomas Del Rio (“Del Rio”), and Joseph Fritz (“Fritz”) 2 only, (2) her claim under the Equal
Protection Clause of the Fourteenth Amendment against Kirkham only, and (3) her state law
claims. 3 Talley v. Brentwood Union Free School District, 2009 U.S. Dist. LEXIS 53537
(E.D.N.Y. June 24, 2009). The Brentwood defendants and the individual defendants now move
under two separate motions for summary judgment as to all of the remaining claims. For the
reasons that follow, defendants’ motions are granted in part and denied in part.
BACKGROUND
This action arises from the decision of three members of the Brentwood Board of
Education to abstain from a vote on whether to hire plaintiff for a teaching position within the
Brentwood School District. Plaintiff alleges that these three individuals, namely Kirkham, Del
Rio, and Fritz, abstained from the vote, thereby denying plaintiff the teaching position, because
they harbored enmity towards plaintiff’s father, George M. Talley, a fellow member of the Board
1
Plaintiff also asserts claims against Residents for Better Schools of Brentwood and North Bay Shore, New York,
Inc., and has obtained a certificate of default against this defendant from the Clerk of Court. (See docket no. 39.)
However, no subsequent motion for default judgment against this defendant was ever filed, notwithstanding that
the Court set March 2, 2009 as the deadline to file such a motion. (See Order dated 2/17/09.) Plaintiff shall show
good cause in writing within three weeks of the entry of this Memorandum and Order why the claims against this
defendant should not be dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
2
These three individuals will be referred to hereinafter as the “individual defendants.”
3
Plaintiff has withdrawn her claim pursuant to New York Civil Rights Law section 51. (Plaintiff’s Memorandum of
Law in Opposition to Defendants’ Motions at 3; Plaintiff’s Affidavit ¶ 3.)
2
and, at the time of the vote the President of the Board, in violation of plaintiff’s First
Amendment right to intimate association. Plaintiff further claims that Kirkham’s decision to
abstain was also motivated by the fact that plaintiff is white, in violation of the Equal Protection
Clause of the Fourteenth Amendment.
I.
Plaintiff’s Employment with the District Before and During the 2006/2007 School
Year
The relevant events begin with plaintiff’s employment with the District as a teacher’s
assistant and sign language interpreter. (Defendants’ Statement of Undisputed Material Facts
Pursuant to Local Civil Rule 56.1 (“Defs.’ 56.1”) ¶ 29.) 4 It is not clear from the record how far
back she held these positions, but it is not disputed that these jobs are distinguishable from a
classroom teacher position, and that they did not require a teaching certificate. (See Defs.’ 56.1
¶¶ 29-32.)
In June of 2006, the District offered plaintiff a contract for a “leave replacement teaching
position” for the 2006/2007 school year, with the contract period ending on June 30, 2007.
(Defs.’ 56.1 ¶ 30.) The letter extending the offer stated that it was conditioned on proof that
plaintiff held a valid New York State Teaching Certificate. (Id. ¶ 32.) The letter contained two
boxes for plaintiff to check: one affirming that she held the requisite certificate, and one
declining to accept the offer. (Id.¶ 35.) Plaintiff signed the letter without checking either box and
returned it to the District. (Id. ¶ 36.) Roughly a week after receiving the job offer, plaintiff
completed a formal application for the position of “leave replacement special education teacher,”
which asks whether the applicant has a valid New York State Teacher’s Certificate. (Id. ¶ 40-41.)
4
Although the District and Board defendants are represented by different counsel from the individual defendants,
and although these two defendants have moved separately for summary judgment, they have submitted a joint
statement of facts. Unless otherwise noted, these facts are undisputed by plaintiff.
3
For those who do, the form offers two boxes of which only one can be selected: “Professional”
and “Initial.” (Id. ¶ 42.) Plaintiff selected “Initial.” 5 (Id. ¶ 43.)
During the time plaintiff signed and returned the offer letter, and completed the
application form, she did not possess a valid teacher’s certificate. (Id. ¶¶ 37, 44; see Pl.’s Teacher
Certificate, Defs.’ Ex. AA (“Effective Date: 09/01/2007”).) Plaintiff disputes this fact by
suggesting that she held a “‘pending’ certification and was permitted to teach pending
obtainment of the complete certification.” (Plaintiff’s Rule 56.1 Counterstatement of Material
Facts (“Pl.’s 56.1”) ¶ 44; see also id. ¶ 37.) In her deposition, she stated that she was entitled
“according to state law” to teach while her certificates were “pending.” (Pl.’s Dep. 28.)
Defendants, however, proffer evidence that the New York State Education Department, the state
agency responsible for issuing teaching certificates, has never had a classification for a “pending
certificate.” (Defs.’ 56.1 ¶ 172 (citing Marriot Aff. ¶¶ 10-11, Defs.’ Ex. L).) At the time plaintiff
submitted these documents to the District, she had only passed two of the three tests required to
obtain her teacher’s certificate. (See Defs.’ 56.1 ¶ 70.)
Before plaintiff, or any other teacher, can begin service as a non-substitute classroom
teacher in the District, the Superintendent must recommend a particular candidate to the Board
for its approval. At the August 21, 2006 Board meeting, Interim Superintendent Michael Cohen
(“Cohen”) recommended that plaintiff be approved by the Board for the temporary replacement
teaching position mentioned above, with service from September 1, 2006 to June 30, 2007. (Id. ¶
59.) The accompanying “Human Resources Report” to the Board indicated that plaintiff was
5
Plaintiff, however, notes that she did disclose elsewhere in the application the dates that she was scheduled to
take her remaining certification exams. (Pl.’s 56.1 ¶ 413.)
4
certified to teach. 6 (Id. ¶ 58.) Plaintiff’s employment was approved unanimously by the Board at
that meeting. (Id. ¶ 61.)
At some point after he began his tenure as the Interim Superintendent in June 2006,
Cohen discovered that certain District employees had been hired and/or transferred without the
knowledge of the District’s Director of Human Resources. (Id. ¶ 78.) 7 As a result, Cohen
ordered an audit to determine the certification status of every District employee. (Id. ¶ 81.) In or
about May 2007, Cohen became aware that plaintiff was among the teachers who were not
properly certified. (Id. ¶¶ 86-87.) Cohen advised the Board of this fact during a closed executive
session, and informed them that because plaintiff’s lack of certification was discovered so late in
the school year, and after talking to County education officials about the matter, he was inclined
to allow her to remain in the classroom through the end of June – the termination date for her
contract. (See Id. ¶¶ 97-99, 104; see also Cohen Dep. 30-32.)
When the Board met again for an executive session in late June 2007, plaintiff had still
not passed all of her required examinations and had not obtained her certification. (Id. ¶¶ 10708.) Although plaintiff’s only contract with the District at that time was to end on June 31, 2007,
her father, George Talley, asked during the meeting that she be allowed to continue receiving
health benefits. (Id. ¶ 108-109.) The District’s general counsel responded that this would entail
an illegal gift of public funds. According to Cohen’s testimony, George Talley asked at the
meeting if a teaching position could be held open for plaintiff until she got the results of her last
certification test, which she took in the beginning of June 2007. (Id. ¶ 111.) George Talley,
6
Plaintiff disputes that the Board ever saw this document. (Pl.’s 56.1 ¶ 58.)
As with a number of defendants’ factual statements, plaintiff disputes the truth of this statement, and argues
that it constitutes hearsay. No explanation is given as to why the statement is purportedly untrue, or why she
believes it is hearsay, and the Court will not credit such bald, unsupported assertions. Therefore, this factual
statement, as well as other factual statements lacking a sufficient response from plaintiff is deemed admitted for
present purposes. See Guru Kripa Foods, Inc. v. Inter, Inc., 2012 U.S. Dist. LEXIS 113187 at *7 (E.D.N.Y. Aug. 10,
2012); see also Local Civil Rule 56.1(d).
7
5
however, disputes that he made this request, or that he talked to anyone in the District about
rehiring plaintiff. (G. Talley Dep. 91.)
II.
Intra-Board Relations
According to Kirkham’s deposition testimony, a clear division of allegiances existed
between the members of the Board, with George Talley, Suzanne Bellinger, Stephen Coleman,
and Lorraine Pace on one side, and the individual defendants and Helen Moss on the other.
(Kirkham Dep. 117.) This division led to open verbal sparring at public board meetings. (See
generally, Transcript of October 18, 2007 Board Meeting, Defs.’ Ex. II.) Kirkham has referred
to George Talley as a “plantation owner,” (Kirkham Dep. 30-32), while Fritz referred to him as
“King George.” (Fritz Dep. 119-20.) Del Rio likened his personal relationship with George
Talley to “an allergic reaction.” (Del Rio Dep. 94-95.) At a public Board meeting, George
Talley allegedly called Del Rio a “cockroach” and a “spic,” prompting Del Rio to respond on the
record that George Talley was a racist. (Id.) According to Coleman’s testimony, Del Rio
approached other Board members to accept nominations for Board President in an effort to block
George Talley’s candidacy for the presidency. (Coleman Dep. 26-28, Pl.’s Ex. B.) During a
Board meeting on October 18, 2007, which is discussed in more depth below, Fritz took issue
with George Talley’s decision to vote against a contract to hire Jerry Kramer as a lobbyist for the
District, and exclaimed to George Talley, “what comes around goes around.” (Fritz Dep. 12425.)
6
III.
Tanya Moss is Hired
On June 27, 2007 Cohen recommended that the Board approve Tanya Moss, the daughter
of Board member Helen Moss, for a teaching position with the District. (Defs.’ 56.1 ¶¶ 113-15.)
Her employment was approved by five votes of the Board. 8 (Id. ¶¶ 117-18.) George Talley
abstained purportedly out of concern that she had not paid her dues by serving as a substitute
teacher in the District before being hired, although he also stated that the recommendation for
Tanya Moss’s candidacy appeared to be a “consolation prize for [her] mommy losing the
election.” (G. Talley Dep. 42-43.) George Talley’s abstention upset Del Rio, who confronted
George Talley at the end of the June 27, 2007 meeting and told him that “nobody else is going to
get a super majority vote in the district.” (Del Rio Dep. 87; see also footnote 8.)
Plaintiff alleges that the position was specifically created for Tanya Moss by the
individual defendants, and that the position was not, but should have been, posted internally to
allow existing District teachers to apply. (Defs.’ 56.1 ¶¶ 130-32.)
IV.
Plaintiff’s Candidacy for the 2007/2008 School Year
On or about August 27, 2007, plaintiff learned that she had passed the last test needed to
obtain her teacher’s certificate. (Id. ¶ 138.) She later received her official certification from the
State of New York, effective September 1, 2007, in the areas of Childhood Education (Grades 16) and Students with Disabilities (Grades 1-6). (Id. ¶¶ 164-65; Pl.’s Teacher’s Certificate, Defs.’
Ex. AA.) On August 27, 2007, Victoria Regan (“Regan”), Director of Special Education,
recommended that plaintiff be appointed to a “CFE” probationary teaching position at the
District’s Southwest Elementary School to begin in September 2007. (Id. ¶ 154.) Defendants
8
Because Tanya Moss was related to a member of the Board, she had to obtain a supermajority of the votes in
order for her to be hired. See N.Y. Educ. L. § 3016(2).
7
assert that “certain District officials had been holding [this] teaching position open for plaintiff,”
(Defs.’ 56.1 ¶ 144), but plaintiff argues that Regan was the only one openly advocating for her
candidacy, as Regan believed plaintiff was the best candidate, and because plaintiff had
previously taught the same class, (Pl.’s 56.1 ¶ 144). The parties also dispute whether it was
typical to have a fall teaching position still open at the end of August. (Compare Defs.’ 56.1 ¶
142-43 with plaintiff’s corresponding response.)
In September 2007, the District’s new Superintendent, Donna Jones (“Jones”),
recommended plaintiff to the Board for the job – a probationary tenure-track position. (Id. ¶¶
184, 192.) In her deposition testimony, Jones cites a number of reasons for making this
recommendation, including that plaintiff was a good “fit” for the position, (Jones Dep. I 32), 9
that she had previously worked in the District schools, that she was certified, that she lived in the
district, and because Jones felt pressure from George Talley who, at that time, was the President
of the Board, (Jones Dep. II 13-14).
Plaintiff’s position came up for a vote before the Board on September 20, 2007, but she
only received four votes in her favor – short of the supermajority she needed as the daughter of a
Board member. (Defs.’ 56.1 ¶¶ 187, 207; see also footnote 8.) The individual defendants all
abstained from the vote.
The District continued to pay plaintiff after this point as a substitute teacher. (Id. ¶ 208.)
When the individuals learned of this fact through the Superintendent’s monthly report, they
prepared a letter to Jones dated September 27, 2007, requesting information so they could “better
understand the current status of [plaintiff’s] employment.” (Jones Letter, Defs.’ Ex. EE.) Most
of the ten items listed in the letter pertained to the individual defendants’ concerns that a position
9
Jones’s deposition was taken over the course of two days. The transcript from the first day is referred to herein as
Jones Dep. I, and the second day as Jones Dep. II. These transcripts are attached to defendants’ motion as exhibits
U and Q respectively.
8
had been improperly held open for plaintiff, and that proper procedures were not followed
leading up to the September 2007 recommendation to the Board that plaintiff be hired. (Defs.’
56.1 ¶¶ 196-205.) Specifically, the defendants point to the following policies and rules that they
felt may not have been followed. Under District Policy 4100, the Superintendent, through the
District’s human resources office, must “make a reasonable effort to interview the top ten
percent of the most qualified applicants” who apply for a particular position. (See Defs.’ 56.1 ¶
159.) The same policy requires that in order to “further attract a wide range of talented and
diverse candidates for professional positions (teachers and administrators), the District will,
when necessary, place job announcements in local newspapers, the District newsletter, and make
use of electronic media.” Further, all open positions “should be posted on the District’s
website.” (Defs.’ 56.1 ¶ 160.)
The individual defendants’ September 27, 2007 letter therefore demanded, among other
things, a copy of any postings or advertisements for the special education teacher position for
which plaintiff was hired, a list of the names of those who interviewed for the position, the
resumes from all those who applied for the position, a copy of any termination letter sent to
plaintiff following the Board’s September 20, 2007 decision not to hire her, a copy of the
advertisement to fill the position after this decision, and proof that plaintiff’s position was one of
the “70 positions approved [by the Board] under CFE.” 10 (Letter to Jones, Defs.’ Ex. EE.)
The District’s human resources office responded that the position was not posted or
advertised, which, the office noted, is only necessary where “there is a lack of bona fide
10
“CFE” stands for “Contract for Excellence,” which defendants describe as an agreement between the District and
the State Education Department wherein the State provides funding to “close the gap between high achieving
school districts and low achieving ones.” (Defs.’ ¶¶ 155-56.) Defendants also contend that when CFE money was
provided, “the district used the money to create specific earmarked positions in its annual budget.” (Id. ¶ 157.)
9
candidates.” 11 (HR Response Letter, Defs.’ Ex. FF; Pl.’s 56.1 ¶ 343.) No other candidates were
interviewed for the position. (HR Response Letter.) The District also did not issue plaintiff a
termination letter, because the Board’s vote only affected her candidacy for the probationary
tenure track position, not her official status at that time as a substitute teacher. (Id.) Further, the
District did not post or advertise for the position once plaintiff’s vote failed. (Id.) As to the CFE
issue, according the human resources office, plaintiff’s position was never designated as a CFEfunded position. Rather, the employee who previously held the position that plaintiff was slated
for, transferred to “IMC” to fill one of the designated CFE position at that location. Plaintiff was
recommended to take this individual’s place in a non-CFE position at the District’s Southwest
Elementary School. (Id.)
At the October 18, 2007 Board meeting, George Talley moved for a revote on plaintiff’s
candidacy for the position. (Defs.’ 56.1 ¶ 240.) Before the Board members cast their vote,
Kirkham stated the following on the record:
We were at a conference on Saturday, Educating Minority
Children, and this was a very interesting statistic that [was]
brought – that [was] brought up. Out of five minority school
districts, which Brentwood is one, they – those five districts
educate an average of 86.42 percent of minority students in grades
– grades pre-K through 12. Suffolk County’s average is 26.8. But
on the other hand, those same five districts only employ and
average of 22.4 percent minority teachers.
Now, I know minority teachers that have tried to get into
this District. I know white teachers that have tried to get into this
District. And when you start correcting it, then I’ll vote for it.
Right now I am not voting for it, because you know what,
call a spade a spade or whatever, but right is right, and until you
prove to me that you’re going to accept other people, other
nationalities. I hear that this year it was Tanya Moss in the
elementary school and another teacher at the secondary level. Only
two black teachers were hired in this District this summer, and that
11
Plaintiff also notes that District Policy 4100 mandates “soliciting candidates from within the Brentwood School
System whenever practicable. Applications from outside the District shall not be considered until after an initial
screening of applications from within the District.” (Pl.’s 56.1 ¶ 160 (quoting District Policy 4100).)
10
is ridiculous. I don’t care if you don’t agree with me, but that’s
ridiculous.
(Transcript of October 18, 2007 Board Meeting (“Tr.”) at 54-55, Defs.’
Ex. II.)
The Board then voted, with all three individual defendants again
abstaining, effectively depriving plaintiff of the super majority that she needed,
and denying her the position. (Id. ¶ 243.) Shortly after this vote, but while the
meeting was still in session, plaintiff, who was in the audience, took the public
podium to address the Board. ((Id. ¶ 252.) The following dialogue ensued.
Plaintiff: Can you please explain to me, with my credentials, my
years working in this District, why I am not qualified, and why you
abstain against me?
Del Rio: I’m going to – I don’t have anything personal against you,
like Mr. Talley didn’t have anything personal against Tanya Moss.
Plaintiff: He [George Talley] didn’t.
Del Rio: But he voted against her. And the fact remains that if that
position was terminated June 30th, what happened to all the
teachers that were licensed that were waiting to get that position?
Plaintiff: I had a pending certification, which everybody gets
before they have their initial certification. I have every right to be
in that classroom. The State knows it. Michael Cohen was
corrected. . . So what is your true reason? . . . That’s not good
enough for me and I don’t accept that. . . .
Del Rio: Well, that’s –
Plaintiff: What is your real reason?
Del Rio: Maybe you – Maybe you should ask your father – why
did he vote against Tanya Moss?
Plaintiff: It has nothing to do with my father.
11
Del Rio: Oh, it does.
(Tr. at 61-62.)
During this same meeting, Fritz offered George Talley a deal, “un-table” the vote on
Jerry Kramer’s contract (mentioned above), and he would vote for plaintiff’s candidacy. (Fritz
Dep. 124-25.) George Talley declined this offer. Later in the meeting, plaintiff again took the
podium and entered into the following dialogue with Kirkham.
Plaintiff: Would you say I am [highly qualified]?
Kirkham: You say you are, so I have to take you at your word.
Plaintiff: Oh, I know I am.
Kirkham: I have to take you at your word.
Plaintiff: So, why would you abstain?
Kirkham: That is personal. That is very personal.
Plaintiff: It’s very personal?
Kirkham: Yes, it’s very personal.
(Tr. at 208-09.)
Kirkham and Fritz both suspected that George Talley had some involvement in creating a
special position for plaintiff. (Kirkham Dep. 147; Fritz Dep. 79-82.) Del Rio was convinced that
the position was created as an accommodation to George Talley. (Del Rio Dep. 91.) In a followup email to Board counsel, Del Rio stated the following: “The reason why I abstained from
voting on Mr. Talley’s daughter’s appointment on September 20 is because Mr. Talley had a
position created to give his daughter employment in the District. I consider her appointment
nothing more than nepotism and a waste of taxpayers’ dollars.” (Del Rio Dep. 166.)
12
DISCUSSION
I.
STANDARD OF REVIEW
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate
where admissible evidence in the form of affidavits, deposition transcripts, or other
documentation demonstrates both the absence of a genuine issue of material fact and one party’s
entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712,
716 (2d Cir. 1994). The relevant governing law in each case determines which facts are
material; “[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party
demonstrates, on the basis of the pleadings and submitted evidence, and “after drawing all
inferences and resolving all ambiguities in favor of the non-movant,” that no rational jury could
find in the non-movant’s favor. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d
Cir. 1996).
When determining whether a genuinely disputed factual issue exists, “a trial judge must
bear in mind the actual quantum and quality of proof necessary to support liability,” or “the
substantive evidentiary standards that apply to the case.” Anderson, 477 U.S. at 254-55. A
district court considering a summary judgment motion must also be “mindful . . . of the
underlying standards and burdens of proof,” Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th
Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective
parties will bear at trial guide the district court in its determination of a summary judgment
motion, see Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988).
13
II.
FIRST AMENDMENT INTIMATE ASSOCIATION CLAIMS
Plaintiff alleges that the individual defendants’ decision to abstain from voting on her
candidacy for employment with the District was substantially motivated by the fact that George
Talley was her father, in violation of her right to intimate association under the First
Amendment.
“The Supreme Court has recognized two types of associational rights: an individual’s
right to associate with others in intimate relationships and a right to associate with others for
purposes of engaging in activities traditionally protected by the First Amendment, such as speech
and other expressive conduct.” Econ. Opportunity Comm’n of Nassau Cnty., Inc. v. County of
Nassau, 106 F. Supp. 2d 433, 439 (E.D.N.Y. 2000) (citing Adler v. Pataki, 185 F.3d 35, 42 (2d
Cir. 1999)). “The right to intimate association protects the close ties between individuals from
inappropriate interference by the power of the state.” Chi Iota Colony of Alpha Epsilon Phi
Fraternity v. C.U.N.Y., 502 F.3d 136, 143 (2d Cir. 2007) (citing Roberts v. U.S. Jaycees, 468
U.S. 609, 619, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)).
“Constitutional protection for associational interests are at their apogee when close
family relationships are at issue.” Patel v. Searles, 305 F.3d 130, 137 (2d Cir. 2002) (citing
Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984)). In relation to the specific facts
of this case, the “parent/child relationship[ is] . . . among the most intimate . . . [and] warrant[s]
the highest level of constitutional protection.” Patel, 305 F.3d at 136; see also Sutton v. Village
of Valley Stream, 96 F. Supp.2d 189, 192-93 (E.D.N.Y. 2000) (finding the father/son relationship
to be a sufficiently intimate association to warrant First Amendment protection). In Adler, the
Second Circuit held that First Amendment intimate associational protections applied to an
14
employee who was terminated from his job with the State of New York in retaliation for a
lawsuit his wife brought against the State. 185 F.3d 35.
Where defendants act with mixed motives, i.e. they terminate an employee both for
legitimate reasons and in retaliation for the activities of a sufficiently close family member,
defendants carry the burden to demonstrate that absent the prohibited rationale, they would have
taken the same action because of an available permissible motive. See Talley, 2009 U.S. Dist.
LEXIS 53537 at *16 - *17 (citing Adler, 185 F.3d at 46-47).
Here, defendants do not dispute that plaintiff was terminated, or that plaintiff’s
relationship with her father constitutes an intimate association subject to protection under the
First Amendment. Defendants do dispute, however, that their decision to abstain from the
subject vote was motivated by plaintiff’s relationship to her father. (Memorandum of Law in
Support of the Individual Defendants’ Motion for Summary Judgment (“Ind. Defs.’ Br.”) at 3. )
Defendants also argue that plaintiff must show “some impairment or impact on the intimate
association to be actionable,” and insist that plaintiff has not made such a showing. (Id. at 11.)
The Court addresses each of these arguments below.
a. Genuine Disputes of Material Fact Exist as to Whether Defendants Were
Motivated by Plaintiff’s Relationship to her Father
Defendants assert that their abstention from the vote was due to “substantial concerns as
to plaintiff’s certification status, the misrepresentation plaintiff made regarding that status, and
whether District officials had complied with District hiring policy.” (Id. at 3.)
As an initial matter, there is no genuine dispute that plaintiff was fully certified before
she began teaching in the 2007/2008 school year, or that she was fully certified before the Board
initially voted on her candidacy in September 2007. Further, the record does not precisely
15
indicate whether the individual defendants chose not to vote in plaintiff’s favor out of concern
that she was not actually certified at that time. Although defendants cite to evidence that they
questioned at some point whether she had the proper certification (see Defs.’ 56.1 ¶ 193), and
that they requested proof of her certification (see id. ¶ 195), it appears that both occurred during
the Board’s executive session held prior to the September 20, 2007 meeting, (see id. ¶¶ 191-95;
Jones Dep. II 9-11). Although Del Rio testified at that he did not see written proof of plaintiff’s
teacher’s certificate until the following January, 2008, (Del Rio Dep. 54-55) there does not
appear to be evidence that defendants suspected plaintiff was not in fact certified when her
candidacy went to a vote in late September.
Nevertheless, defendants aver that one of the reasons for not approving plaintiff for the
job was that she misrepresented her certification status to the District at least in part through the
offer letter and application mentioned above. The parties do not dispute that defendants were
fully aware that Cohen discovered late in the 2006/2007 year that plaintiff had been teaching for
nearly ten months without a certificate, or that defendants were aware that she had still not
passed all of her exams at the beginning of the 2007 summer vacation. (Defs.’ 56.1 ¶ 92.)
However, it is not clear from the record whether the individual defendants had seen the
documents in which plaintiff purportedly made these misrepresentations before they voted. 12 The
argument could nevertheless be made that even if the individual defendants had not seen these
documents, they could have inferred that she was not entirely forthcoming with the full truth.
Certainly, if plaintiff knew that she still needed to pass certain examinations, then a fair inference
can be draw that she was aware that her certification was not complete and accepted the position
anyway.
12
For present purposes, it is not necessary for the Court to resolve whether, as plaintiff suggests, she held some
form of “pending” certification that entitled her to remain in her classroom teaching position until the end of her
contract on June 30, 2007.
16
However, the only evidence identified by defendants that such an inference was actually
drawn relates to Fritz, not the other individual defendants. Fritz affirmatively testified that
plaintiff’s lack of candor regarding her certification affected the way he voted on her candidacy.
(Defs.’ 56.1 ¶¶ 204-05.) Plaintiff, of course, offers evidence that Fritz’s decision was motivated
by retaliation for the acts of George Talley, viz. Fritz was angered by the fact that he had not
voted on Jerry Kramer’s contract, and told George Talley “what goes around comes around.”
(Pl.’s 56.1 ¶ 393.) As discussed above, where there is evidence of mixed motives in this context,
the burden falls on defendants to show that the same challenged action would have been taken
because of the permissible motive. This issue was essentially put to the test at the October 18,
2007 Board meeting when Fritz offered to vote in plaintiff’s favor if George Talley “un-tabled”
the Jerry Kramer vote. (Pl.’s 56.1 ¶ 394.) Fritz’s actions here show that under the right
circumstances, which notably had nothing to do with plaintiff, he would have voted for her to fill
the position despite her perceived lack of candor. Genuine issues of fact therefore remain as to
whether Fritz and the other individual defendants were actually motivated by plaintiff’s
purported misrepresentations to the District regarding her certification.
As to defendants’ argument that they were motivated by the District’s failure to follow its
own hiring procedures when recommending plaintiff for the position, triable issues of fact
remain here as well. Although defendants clearly demonstrated an effort to uncover whether the
District had followed such procedures, plaintiff has proffered evidence that these activities
themselves may have been motivated by, and served as pretext for, impermissible considerations.
Specifically, the individual defendants apparently did not express this same level of concern for
procedure when other candidates came before the Board for approval. For instance, no inquiry
was made into the District’s hiring practices when the Superintendent recommended Marisa
17
Tamburro, who is not related to a Board member, or Tanya Moss, who is related to a Board
member with whom the individual defendants are purportedly aligned. (Pl.’s Opp. at 13 (citing
Del Rio Dep. 66, 147; Kirkham Dep. 21-24; Fritz Dep. 87-88).)
Of course, defendants argue that their inquiry was prompted by reason to believe that
either District officials had held this position open as a favor to George Talley, or that George
Talley took it upon himself to see that the position was held open. Nevertheless, although antinepotism rules have been upheld in the face of challenges claiming they unduly burden the right
of intimate association, see, e.g., Montgomery v. Carr, 101 F.3d 1117 (6th Cir. 1996), genuine
issues of fact remain disputed as to whether defendants had good cause to believe that George
Talley caused or attempted to cause a position to be held open for plaintiff.
In reaching this conclusion, the Court has also considered defendants’ argument that
“prior to the discovery of plaintiff’s lack of certification and misrepresentation, the Individual
Defendants unanimously voted in favor of hiring plaintiff just a year earlier.” (Pl.’s Br. at 13.)
While this is certainly true, much of the evidence of hostility between the individual defendant
and George Talley pertains to events occurring after this first vote. Most prominent among these
events is Del Rio’s struggles with George Talley as he ascended to President of the Board in
2007, and George Talley’s decision not to vote for Tanya Moss in June 2007.
Furthermore, a reasonable jury could conclude that in conjunction with the animosity that
existed between the individual defendants and George Talley, the utterances of the individual
defendants on the record at the October 18, 2007 Board meeting evince a motivation to deny
plaintiff employment based solely on her relationship to her father. As fully excerpted above,
Del Rio told plaintiff at a public meeting that the real reason for his vote had to do with
18
plaintiff’s father. Kirkham stated that her decision was “personal,” and Fritz told George Talley
that “what goes around comes around.”
Therefore, defendants have failed to demonstrate that there is no genuine issue of triable
fact as to whether they denied plaintiff employment in retaliation for the acts of her father.
b. Plaintiff is Not Required to Demonstrate a Particular Level of Injury to the
Relationship
Defendants further urge that in order for plaintiff to prevail on her First Amendment
claim, she must “show some impairment or impact on the intimate association.” (Defs.’ Br. at
11.) Courts have employed a number of standards to determine whether certain conduct has
infringed on one’s right to intimate association. Among these standards are whether “the
challenged action has the likely effect of ending the protected relationship,” Adler, 185 F.3d at
43, whether “affecting the relationship was the purpose of the challenged regulation,” id., and
whether the action was “arbitrary or an ‘undue intrusion’ by the state into the [ ] relationship,” id.
(citing Adkins v. Board of Educ., 982 F.2d 952, 956 (6th Cir. 1993)).
In support of their position, defendants cite to Sacay v. Research Foundation of the City
Univ. of New York, 193 F.Supp. 2d 611 (E.D.N.Y. 2002), in which plaintiff “failed to present any
evidence that her transfer and demotion burdened her relationship with her mother.” Id. at 635.
However, Sacay is distinguishable from the instant case in that it addressed the applicable
standard in the context of qualified immunity. Although Sacay was decided after Adler, the
conduct at issue occurred before. The Sacay court therefore determined that the defendants were
entitled to qualified immunity because the “undue intrusion” standard recognized in Adler did
not exist when the challenged action occurred. It was, in the court’s opinion, objectively
reasonable for the defendant to believe that their conduct would not have the “likely effect of
19
ending the protected relationship” as one of the prior standard required. Id. Sacay therefore
analyzed the present cause of action under pre-Adler standards.
Presumably aware of this issue, defendants here suggest in their brief that the Sacay
court’s requirement that plaintiff show an actual burden on the relationship, “is in line” with the
“undue intrusion” standard in Adler. (Ind. Defs.’ Br. at 11.) The Court does not agree. In Adler,
the Second Circuit held that “retaliatory discharge based solely on litigation instituted by one’s
spouse is actionable under the First Amendment,” 185 F.3d at 45, without articulating a
requirement that the plaintiff demonstrate an injury to the relationship. Defendants’ further
suggest that in Patel, 305 F.3d at 137, the Circuit “clarified [] that some level of interference
with the relationship is required, despite declining to specify how much.” (Ind. Defs.’ Br. at 12.)
To the extent that Patel even stands for such a proposition, and it is not entirely clear that it
does, 13 the Circuit explicitly stated in Patel that “less severe burdens” than were present in that
case have been held to implicate the right to intimate association. Patel, 305 F.3d at 137. The
Circuit’s example of such lesser burden was Adler, which involves substantially similar conduct
to the present case, viz. that the plaintiff was allegedly terminated in retaliation for the acts of a
close family member. Id. As Second Circuit precedent does not appear to require the plaintiff to
articulate a specific level of injury to the intimate relationship at issue, the Court declines to
require such a showing here. 14
13
See, e.g. Miron v. Town of Stratford, 2012 U.S. Dist. LEXIS 102703 at *25 (July 24, 2012)(Patel “emphatically
rejected an assertion that a purported intrusion or violation of the right to intimate association must meet a
threshold level of severity in order to trigger constitutional protection.”)
14
It is perhaps worthy to note that plaintiff asserts in her affidavit that the alleged conduct “continually causes
friction and arguments between [her and her father].” (Pl.’s Aff. ¶ 49.) Although this single statement is hardly an
overwhelming demonstration of the impact on her relationship, for the reasons stated above, the Court need not
evaluate the sufficiency of this evidence.
20
In sum, defendants have failed to show the absence of genuine issues of trial fact
pertaining to plaintiff’s First Amendment claim. Summary judgment on that claim is therefore
denied.
III.
FOURTEENTH AMENDMENT EQUAL PROTECTION CLAIMS
Plaintiff next alleges that defendant Kirkham, who is African American, also voted
against her candidacy for a position within the District due to the fact that plaintiff is white.
The Equal Protection Clause of the Fourteenth Amendment guarantees the right to be free
from “invidious discrimination in statutory classifications and other governmental activity.”
Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) (quoting Harris v. McRae, 448 U.S. 297, 322,
(1980)). “The Equal Protection Clause requires that the government treat all similarly situated
people alike.” Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005) (citations omitted),
overruled on other grounds, Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir. 2008); accord Harlen
Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001). A plaintiff alleging a
violation of her Equal Protection rights must demonstrate that she was treated differently “than
others similarly situated as a result of intentional or purposeful discrimination.” Phillips v.
Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (citation omitted). But cf. Pyke v. Cuomo, 258 F.3d
107, 110 (2d Cir. 2001) (“[A] plaintiff who . . . alleges that a facially neutral law or policy has
been applied in an intentionally discriminatory race-based manner . . . is not obligated to show a
better treated similarly situated group of individuals of a different race in order to establish a
claim of denial of equal protection.”).
Equal protection claims pertaining to workplace discrimination utilize the same burdenshifting framework as Title VII claims. See Feingold v. New York, 366 F.3d 138, 159 (2d Cir.
21
2004). Under this framework, (1) a plaintiff must first establish a prima facie case of
discrimination; (2) the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions; if the employer does so, the presumptions and burdens
of this framework disappears, leaving the sole remaining issue of “discrimination vel non,” and
thus (3) the burden shifts back to the plaintiff to prove that the employer’s stated reason is
merely pretextual and that discrimination was an actual reason for the adverse employment
action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Although
intermediate evidentiary burdens shift back and forth under this framework, “[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Id.
To make out her prima facie case, plaintiff must show that she: (1) belongs to a protected
class; (2) was qualified for the position she sought; (3) suffered an adverse employment action;
and (4) did so under circumstances giving rise to an inference of discrimination. Terry v,
Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); see also Feingold, 366 F.3d at 159) (“Once action
under color of state law is established,[15] . . . [t]he elements of [Title VII claims] are generally
the same as the elements of [workplace discrimination claims under the Equal Protection Clause]
and the two must stand or fall together.”)
As with plaintiff’s First Amendment claim, defendants dispute only that plaintiff has
made out the final element of her Equal Protection claim, i.e. that Kirkham was motivated by
discriminatory animus in deciding not to vote in favor of plaintiff. Here, Kirkam argues that
plaintiff’s only evidence of discrimination arises from what she describes as “an isolated remark
during the October 18, 2007 Board meeting that the District needed to consider hiring more
minority teachers.” (Ind. Def.’s Br. at 16.) Given the content and timing of this remark in
15
There is no dispute that defendants here are state actors.
22
conjunction with the vote on plaintiff’s employment (see further discussion infra), the Court
finds that plaintiff has met her “minimal” burden at the prima facie stage. See Roge v. NYP
Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001).
Turning to the second stage of the burden-shifting framework, Kirkham offers the same
legitimate, non-discriminatory rationale for her actions that the individual defendants offered in
the context of the First Amendment claim. See discussion supra at subsection III a.
Moving to the third and final stage of analysis, plaintiff has set forth sufficient evidence
to permit a reasonable jury to find that Kirkham’s proffered rationale is pretext for
discrimination. First, although Kirkham characterizes her remarks during the subject Board
meeting as a “generic statement about hiring more teachers of color,” in actuality, they have a far
more direct connection to plaintiff’s candidacy than Kirkham suggests. Her statement, which
was made in public and on the record, begins with a general recitation of the statistical disparity
between the percentage of minority students and the percentage of minority teachers in the
District. Following this broad framing of the issue, however, she adds that “when you start
correcting it, then I’ll vote for it.” (Tr. at 54-55.) Taken in context, a reasonable reading of that
statement is that until the Board/District corrects this disparity, she will not vote for a nonminority. This utterance was made just as George Talley had moved for a revote on hiring a
non-minority, white candidate: plaintiff. This reading is further supported by Kirkham’s followup statement that “[r]ight now I am not voting for it, because you know what, call a spade a
spade or whatever, but right is right, and until you prove to me that you’re going to accept other
people, other nationalities . . . .” (Id.) Certainly, a reasonable juror could conclude from this
statement that Kirkam decided on plaintiff’s candidacy—the only decision then before the Board
23
when she made the statement—based on the fact that plaintiff was white. Material issues of fact
therefore exist to preclude summary judgment on plaintiff’s Equal Protection claim.
The Court is not swayed by Kirkham’s argument that discriminatory inference should not
be drawn from her statements because she earlier voted in favor of hiring plaintiff for the
2006/2007 school year. (Ind. Defs.’ Br. at 16.) However, as defendants themselves quote in their
brief, the “underlying rationale for [this] [same-actor] inference is simple: it is suspect to claim
that the same manager who hired a person in the protected class would suddenly develop an
aversion to members of that class.” Figueroa v. N.Y. City Health & Hosps. Corp., 500 F. Supp.
2d 224, 236 (S.D.N.Y. 2007)(citation omitted). In this case, there is evidence that would permit
a trier of fact to conclude that Kirkham did suddenly develop such an aversion. Kirkham opened
her statement at the meeting by noting that she had had just attended a conference that past
weekend entitled “Educating Minority Children.” (Tr. at 54.) It was at that conference that she
first learned the statistics regarding minority students and minority teachers in the District. (Id.)
Indeed, the very manner in which Kirkham framed her statement at the meeting suggests that she
developed an aversion to hiring non-minority teachers during that conference, which of course
occurred after she voted in favor of hiring plaintiff and before she voted against it.
Kirkham further argues that plaintiff, did not identify a similarly situated individual from
outside her class that was treated more favorably than she was. (Ind. Def.’s Br. at 17.) However,
just months before Kirkham voted against plaintiff, she lodged a vote in favor of Tanya Moss,
whose mother was on the Board at the time of the vote on her candidacy for a teaching position,
and who is African-American. In fact, Kirkham testified that she specifically voted in favor of
Tanya Moss because she had two Master’s Degrees and had passed all of the tests required for
her teacher’s certificate. (Kirkham Dep. at 21.) Plaintiff too possesses two Master’s Degrees and
24
by the end of August 2007, had passed all of her certification exams. Defendants argue in their
reply memorandum that these two individuals are not sufficiently comparable because there was
no indication that a position had been “improperly created or held open for Tanya Moss,” that
District hiring policies had been ignored, that Tanya Moss had failed any of her certification
exams, or that she had misrepresented her certification status to the District. While these
differences do exist, as discussed above, triable issues of fact exist as to all of these asserted
reasons for denying plaintiff employment. As such, a jury must also decide these facts in the
context of whether these two individuals are similarly situated.
Finally, Kirkham notes that plaintiff was “replaced” by Marisa Tamburro, a member of
the same class as plaintiff, suggesting that Kirkham could not therefore have acted with
discriminatory animus. While it is true that the Board approved the recommendation to hire
Marisa Tamburro at the October 2007 meeting, defendants do not point to any evidence that
Kirkham herself voted in favor of Tamburro.
As genuine issues of triable fact remain as to plaintiff’s claim against Kirkham, summary
judgment thereon must be denied.
V.
IMMUNITY
a. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When a defendant
invokes qualified immunity to support a motion for summary judgment, courts engage in a two-
25
part inquiry: whether the facts shown ‘make out a violation of a constitutional right,’ and
‘whether the right at issue was clearly established at the time of defendant’s alleged
misconduct.’” Taravella v. Town of Wolcott, 599 F.3d 129 (2d Cir. 2010)(citation omitted).
The individual defendants first argue that there is no evidence to suggest that they
violated plaintiff’s constitutional rights, and that even if there is, the evidence would not
implicate any rights that were clearly established in 2007. (Ind. Defs’. Br. at 33.)
Regarding plaintiff’s intimate association claim, the Court previously stated in this case
that “in light of Adler[, 185 F.3d 94], a reasonable person would understand that the right of
intimate association is violated when there is a refusal to hire one family member solely in
retaliation for another family member’s exercise of his or her First Amendment rights.” Talley,
728 F. Supp. 2d at 237. The Court further stated in that decision that the “existence of the
qualified immunity defense may well depend on what facts plaintiff is able to establish.” Id. at
238.
Here, as discussed above, genuine issues of material fact remain as to whether the
individual defendants chose not to vote in favor of plaintiff based on her relationship to her
father, and as to whether Kirkham abstained from the same vote based on plaintiff’s race. The
same issues of fact that preclude an award of summary judgment on these claims likewise
preclude granting the individual defendants qualified immunity at this juncture. See Cobb v.
Pozzi, 363 F.3d 89, 111-112 (2d Cir. 2003) (“The issue of rational treatment is not sufficiently
different from the issue of whether the defendants acted in an ‘objectively reasonable’ manner so
as to lead us to resolve the latter issue as a matter of law where we have concluded in the face of
disputed issues of fact that the jury must resolve the former issue.”)(citation omitted). The
individual defendants are therefore not entitled to summary judgment under qualified immunity.
26
b. Absolute Legislative Immunity
The individual defendants further argue that they are entitled to absolute legislative
immunity by virtue of the fact that they voted in their capacity as members of the Board.
Absolute legislative immunity extends to local legislators. Carlos v. Santos, 123 F.3d 61, 66 (2d
Cir. 1997); Orange Lake Assocs., Inc. v. Kirkpatrick, 21 F.3d 1214, 1224 (2d Cir. 1994)(Town
Board members). In Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998), the Supreme Court held that
whether an act is legislative “turns on the nature of the act, rather than on the motive or intent of
the official performing it.” Id.
Where a local school board takes action on employment decisions, such action is
considered “administrative, not legislative, in nature” because a board in that circumstance
“[does] not engage in the kind of broad, prospective policymaking that is characteristic of
legislative action.” Harhay v. Town of Ellington Board of Education, 323 F.3d 206, 210 (2d Cir.
2003). Such is precisely the action taken against plaintiff in the present case. The only decisions
at issue here pertain solely to the Board’s vote on the administrative matter of plaintiff’s
employment. The individual defendants are therefore not entitled to absolute legislative
immunity.
VI.
STATE LAW CLAIMS
a. Intentional Infliction of Emotional Distress
In order to assert a claim for intentional infliction of emotional distress (“IIED”) under
New York law, a plaintiff must show: “(1) extreme and outrageous conduct, measured by the
reasonable bounds of decency tolerated by society; (2) intent to cause or disregard of a
substantial probability of causing severe emotional distress; (3) a causal connection between the
27
conduct and the injury; and (4) severe emotional distress.” Margrabe v. Sexter & Warmflash,
P.C., 353 Fed. Appx. 547, 550 (2d Cir. 2009) (Summary Order) (quoting Conboy v. AT&T
Corp., 241 F.3d 242, 258 (2d Cir. 2001)) (internal quotation marks omitted). “Since the alleged
conduct must be so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community, satisfying the outrageousness element is difficult, even at the pleadings stage.”
Russo-Lubrano v. Brooklyn Fed. Savs. Bank, 2007 U.S. Dist. LEXIS 2646 (E.D.N.Y. Jan. 12,
2007) (internal citations and quotation marks omitted). “Particularly in the employment context,
New York courts are exceedingly wary of claims for intentional infliction of emotional distress .
. . .” Id. (internal quotation marks omitted, alteration in the original).
Even if plaintiff were to establish the remaining disputed issues of fact in her favor, the
challenged action at issue here is insufficient to meet the threshold for extreme and outrageous
conduct necessary to sustain her IIED claim. See Russo-Lubrano, 2007 U.S. Dist. LEXIS 2646 at
*7 (collecting cases). Summary judgment is therefore granted as to plaintiff’s claim for
intentional infliction of emotional distress.
b. Defamation 16
Under New York Law, in order to establish a defamation claim, a plaintiff must prove (1)
a defamatory statement of fact, (2) regarding the plaintiff, (3) published to a third party, (4) by
the defendant, 5) with injury to the plaintiff. See Boyd v, Nationwide Mutual Ins. Co., 208 F.3d
406, 409 (2d Cir. 2000); see also Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001). A
16
Plaintiff sets forth claims in her Amended Complaint for “Willful Damage to Reputation and Good Name” (Am.
Compl., “Eighth Claim”) and for “Common Law Defamation” (Am. Compl., “Tenth Claim”). However, as defendants
correctly point out, no separate cause of action exists under New York law for willful damage to reputation and
good name, which relates to one’s damages under a claim for defamation. (Ind. Defs.’ Br. at 25 (citing Epifani v.
Johnson, 65 A.D.3d 224, 234 (2d Dep’t 2009).) Plaintiff does not dispute this assertion and concentrates solely on
the defamation claim in her opposition papers. The Court therefore construes plaintiff’s eight cause of action to
have been withdrawn.
28
defamatory statement of fact is one that “tends to expose the plaintiff to public contempt,
ridicule, aversion, or disgrace or induce an evil opinion of him in the minds of right-thinking
people to deprive him of their friendly intercourse in society.” Rinaldi v. Holt, Rinehart &
Winston, Inc., 42 N.Y.2d 369, 379, 366 N.E.2d 1299 (1977). “[I]f the language is not of such a
nature, that is, if it merely constitutes a general reflection on a person’s character or qualities, it
is not a matter of such significance and importance as to amount to actionable defamation even
though it may be unpleasant, annoying, or irksome, or may subject the plaintiff to jests or banter
so as to affect his feelings.” N.Y. Jur. Defam. § 5. Finally, “truth is an absolute, unqualified
defense to a civil defamation action.” Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 301 (2d
Cir. 1986), cert denied, 479 U.S. 1091 (1987) (internal quotation marks and citations omitted).
Plaintiff’s defamation claims arise from a number of published statements. The first
involves the content of a newsletter sent out to the Brentwood community by defendant
Residents for a Better Neighborhood. 17 (Am. Compl. ¶¶ 70-73.) Although the pleading alleges
that Fritz is an officer of this defendant organization, plaintiff fails to point to evidence in the
record that this is true, or that he was otherwise involved in the creation or publication of this
newsletter. Plaintiff has therefore failed to establish the fourth element of her claim as it pertains
to the newsletter.
A second letter allegedly sent out by Fritz, states in relevant part “George Talley insisted
in hiring his daughter, a person who did not pass have [sic] the required test at the time of the
hiring.” (Am. Compl. ¶ 74.) This statement is true. Although plaintiff had passed all of her
exams when she was hired in September 2007 and before her candidacy came before the vote
later that month, she had not passed all of her exams and she was not certified when she was
hired in 2006. Her defamation claim as to this statement must therefore fail.
17
See footnote 1 for the status of claims against this defendant.
29
Finally, Del Rio allegedly told a newspaper that “although George Talley campaigned
against nepotism and ‘here he is creating [a] new position to get his daughter a job.’” (Pl.’s Opp.
at 43.) Regardless of the truth of this statement, which is subject to disputed issues of fact
identified above, it is reflective of George Talley, not plaintiff. To the extent that plaintiff
suggests that a negative implication towards her is manifest in that statement, she does not
identify what that implication is, nor is one apparent to the Court that would rise to the level of
defamation. Therefore, this portion of her defamation claim must also fail.
Summary judgment as to plaintiff’s claims for defamation against the individual
defendants is granted.
c. “Intentional Interference with Prospective Economic Relations”
Under New York law a plaintiff seeking to recover for tortious interference with business
relations must allege “(1) there is a business relationship between plaintiff and a third party;[ ]
(2) the defendant, knowing of that relationship, intentionally interferes with it; (3) the defendant
acts with the sole purpose of harming the plaintiff, or, failing that level of malice, uses dishonest,
unfair or improper means; and (4) the relationship is injured.” Goldhirsh Group v. Alpert, 107
F.3d 105, 108-09 (2d Cir. 1997).
Plaintiff bases this claim on the fact that when she sought employment in other school
districts following the Board’s denial of her application, “the interviewers knew details about
what happened with [her] and the Brentwood District.” (Pl.’s Aff. ¶ 32.) Plaintiff suggests in her
opposition brief that “the interviewers could not have known of the details between plaintiff and
Brentwood School District without having spoken to someone from within the District.” (Pl.’s
Opp. at 45.) Fatal to this claim is the fact that much of what transpired in this case occurred on
the record at a public Board meeting and was reported in the local newspaper. If there are
30
“details” that prospective employers became aware of outside of what was available through
these sources, plaintiff fails to articulate what they are, and the Court will not endeavor to guess.
Defendants’ motion for summary judgment as to plaintiff’s tortious interference claim is
therefore granted.
VII.
BRENTWOOD DEFENDANTS
The defendant Board argues that the claims against it should be dismissed because “it is
beyond dispute that there is no cause of action for damages under 42 U.S.C. § 1983 for damages
against a school board or its members in their official capacities.” (Pl.’s Opp. at 2-3 (quoting and
citing inter alia Seils v. Rochester City School District, 192 F. Supp. 2d 100, 122 (W.D.N.Y.
2002).) Although the Seils case and many of the cases to which it cites declare this proposition
to be “beyond dispute,” Seils, 192 F. Supp. 2d at 122, and/or “well established,” Mazza v.
Hendrick Hudson Cent. Sch. Dist., 942 F. Supp. 187, 192 (S.D.N.Y. 1996), a review of its
origins suggest that it is based on law overturned by the Supreme Court in Monell v. Dep't of
Soc. Servs., 436 U.S. 658, 690-691(1978). See discussion in Ruslander v. City of Buffalo, 2003
U.S. Dist. LEXIS 25088 at *6 n.7 (W.D.N.Y. Aug. 22, 2003). Furthermore, the board of
education of each union free school district in New York is considered a separate corporate body
and therefore generally a suable entity. See N.Y. Educ. Law § 1701. Given these issues, the
Court is not convinced by that the Board should escape liability simply by virtue of its status as a
board of education for a union free school district.
Both of the Brentwood defendants also argue that plaintiff cannot establish Monell
liability. A municipality may not be held liable under Section 1983 on a respondeat superior
theory of liability for its employees’ alleged constitutional violations. See Monell, 436 U.S. 658;
31
Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995). A municipal entity may only be
liable if the alleged conduct was undertaken pursuant to “a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by [its] officers” or a “governmental
‘custom’ even though such a custom has not received formal approval through [ ] official
decisionmaking channels.” Monell, 436 U.S. at 690-91. Accordingly, in order to bring a Section
1983 claim against a municipal defendant, a plaintiff must establish both a violation of his
constitutional rights and that the violation was motivated by a municipal custom or policy. Id.;
see also Coon v. Town of Springfield, Vt., 404 F.3d 683, 686 (2d Cir. 2005) (“[I]t is when
execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.”).
“For purposes of § 1983, school districts are considered to be local governments and are
subject to similar liability as local governments under Monell.” Kantrowitz v. Uniondale Union
Free School District, 822 F.Supp.2d 196, 217 (E.D.N.Y. 2011) (quoting Booker v. Board of
Education, Baldwinsville Central School District, 238 F.Supp.2d 469, 475 (N.D.N.Y. 2002)).
Moreover, “[o]fficial municipal policy includes the decisions of a government’s lawmakers, the
acts of its policymaking officials, and practices so persistent and widespread as to practically
have the force of law.” Connick v. Thompson, --- U.S. ---, 131 S. Ct. 1350, 1359 (2011).
Here, the challenged action was the result of a binding vote of the Board. Monell liability
may therefore attach to the Brentwood defendants should plaintiff ultimately prevail on the
merits of her claims. Although the Brentwood defendants argue that summary judgment should
be granted on the merits of plaintiff’s claims, as discussed above, genuine issues of triable fact
remain as to plaintiff’s federally based claims. The Brentwood defendant’s motion for summary
32
judgment is therefore denied as to plaintiff’s First Amendment and Equal Protection claims and
granted as to plaintiff’s state law claims for the reasons stated supra.
CONCLUSION
For the reasons stated above, the defendants’ motions for summary judgment are granted
as to plaintiff’s state law causes of action, but are denied as to plaintiff’s federal constitutional
claims. This matter is respectfully referred back to the Honorable E. Thomas Boyle for final
pretrial supervision.
SO ORDERED.
Dated: Central Islip, New York
September 5, 2012
/s
Denis R. Hurley
United States District Judge
33
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