Gipson v. The Town of Hempstead et al
ORDER granting 14 Motion to Dismiss. SO ORDERED that plaintiffs motion to dismiss the second amended complaint is granted. Plaintiffs application for leave to further amend the complaint is denied. The Clerk of Court is respectfully directed to close this case. Ordered by Judge Sandra J. Feuerstein on 3/26/2012. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IN CLERK'S OFFICE
U S DISTRICT COURT E D N Y
THE HEMPSTEAD UNION FREE
MAR 2 6 2012
LONG ISLAND OFFICE
FEUERSTEIN, District Judge:
On December 15,2009, plaintiff Leonia Gipson ("plaintiff') commenced this action
pursuant to 42 U.S.C. § 1983, alleging, inter alia, violations of her right to due process as
guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
Before the Court is defendant's motion to dismiss the second amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket Entry No. 14]. For the reasons
that follow, defendant's motion is granted.
Plaintiff has been employed as a teacher since 1982. See Second Amended Complaint
("Sec. Am. Compl.") [Docket Entry No. I OJ
6. She has a master's degree in special
For purposes of this motion to dismiss, the factual allegations in plaintiffs complaint
are taken as true. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).
education, "a Permanent New York State Certification in Special Education," and a "Permanent
New York City License in Special Education." !d.
On or about July 31, 2003, plaintiff applied for a special education teaching position at
A.B.G. Schultz Middle School, located within the Hempstead Union Free School District (the
"District"). !d. at '1)7. During her interview for the position, plaintiff informed the District that
she was certified to teach special education. !d. at '1)8. On or about August 13,2003, plaintiff
was offered a position "teach[ing] mathematics to low performing, low level, Special Education
students." !d. at '1)9. Plaintiff began the job on September 2, 2003, id., and close to two (2) years
later, was informed that she had been awarded tenure "as a Mathematics Education Teacher," id.
at '1)12 2 Plaintiff continued working in this position for the following four (4) years, receiving
performance evaluations ranging between "Satisfactory" and "Outstanding." !d. at '1)14.
On January 28,2009, the school's Interim Director of Personnel, Charles Planz ("Planz"),
called plaintiff to his office. !d. at '1)15. Planz expressed concern about the fact that plaintiff had
received tenure as a mathematics teacher, even though she was only certified to teach special
education. !d. at '1)'1)16-17. Planz informed plaintiff that her teaching certificates "were no longer
acceptable," and stated that plaintiffs employment would be terminated if she did not resign. !d.
at '1)'1)20-21. Planz stated that other tenured teachers in the District received the "same
ultimatum." !d. at '1)23. No District employee informed plaintiff that she had the right to request
a hearing. !d. at '1)24.
The District subsequently informed plaintiff that, if she did not resign, she would be
As plaintiff was already a tenured teacher in New York City, she was eligible for tenure
after only two (2), rather than three (3), years. !d. at '1)13.
unable to obtain future employment in the District. !d. at~ 25. Plaintiff resigned her position on
February 6, 2009. !d.
Plaintiff commenced this action on December 15,2009, and filed an amended complaint
on January 22, 2010. [Docket Entry No. 2]. Her amended complaint alleged the following two
(2) causes of action: (I) violation of plaintiffs due process rights under the Fifth and Fourteenth
Amendments; and (2) intentional infliction of emotional distress pursuant to state law. !d.
90-100. By order dated November 18,2010, the Court granted defendant's motion to dismiss the
amended complaint with prejudice except to the extent it alleged a substantive due process claim.
[Docket Entry No. 9].' Plaintiff was granted leave to file a second amended complaint setting
forth her substantive due process claim. !d. at 13-14.
On December 20, 2010, plaintiff filed a second amended complaint. [Docket Entry No.
I 0]. In the second amended complaint, plaintiff alleges that defendant violated her substantive
due process rights by "willfully hiring [her] and granting [her] tenure," and then "unjustifiably
stripping her of that tenure, without informing [her] of her rights as specifically provided by
contract and law, without cause, via threats and coercion .... " !d.
33. Plaintiff alleges that
defendant had a "policy and custom to not inform tenured teachers about their rights to contest a
termination .... " !d.
Defendant now moves to dismiss the second amended complaint.
Plaintiff voluntarily withdrew her state law claim for intentional infliction of emotional
distress. Docket Entry No. 9 at 12.
Motion to Dismiss Standard
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. IQbal, 556
U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly.
550 U.S. 544,570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A pleading that offers 'labels and
conclusions' or 'a 'formulaic recitation of the elements of a cause of action will not do."' IQbal,
129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it
tenders 'naked assertion[ s]' devoid of 'further factual enhancement."' IQbal, 129 S.Ct. at 1949
(quoting Twombly, 550 U.S. at 557).
In deciding a motion pursuant to Rule 12(b)( 6), the Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Matson v. Bd. ofEduc. of the City Sch. Dist. ofN.Y., 631 F.3d 57,63 (2d Cir. 2011); see also
Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) ("When there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief."). "[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." IQbal, 129 S.Ct. at 1949. "While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations." !d. at 1950. "While a
complaint need not contain detailed factual allegations, it requires more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Matson, 631 F.3d at 63 (internal quotation marks
and citation omitted).
Plaintiffs Due Process Claim
"Substantive due process protects only those interests that are 'implicit in the concept of
ordered liberty."' Local342 v. Town Bd. of Huntington, 31 F.3d 1191, 1196 (2d Cir. 1994)
(quoting Palko v. Connecticut, 302 U.S. 319,325,58 S.Ct. 149, 151,82 L.Ed. 288 (1937)). "In
order to state a valid claim for violation of substantive due process, [plaintiff] must show that
[defendant's action] was an 'exercise of power without any reasonable justification in the service
of a legitimate governmental objective[.]"' SeaAir NY, Inc. v. City ofN.Y., 250 F.3d 183, 187
(2d Cir. 2001) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140
L.Ed.2d 1043 (1998)). "Substantive due process protects individuals against government action
that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against
government action that is incorrect or ill-advised." Cunney v. Bd. of Trustee of Village of Grand
View N.Y., 660 F.3d 612, 626 (2d Cir. 2011) (quoting Kaluczky v. City of White Plains, 57 F.3d
202, 211 (2d Cir. 1995)). "It does not forbid governmental actions that might fairly be deemed
arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of
administrative action. Substantive due process standards are violated only by conduct that is so
outrageously arbitrary as to constitute a gross abuse of governmental authority." Natale v. Town
of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999).
In analyzing plaintiffs substantive due process claim, the Court must "first inquire
whether a constitutionally cognizable property interest is at stake." Ferran v. Town of Nassau,
471 F.3d 363, 369 (2d Cir. 2006) (citing Villager Pond. Inc. v. Town of Darien, 56 F.3d 375,378
(2d Cir. 1995)). Next, plaintiff must "allege governmental conduct that is so egregious, so
outrageous, that is may fairly be said to shock the contemporary conscience." Velez v. Levv, 401
F.3d 75, 93 (2d Cir. 2005) (internal quotation marks and citation omitted).
Assuming that plaintiff has alleged a constitutionally cognizable property interest in her
tenured teaching position, see Strong v. Bd. of Educ. of Uniondale Union Free School Dist., 902
F.2d 208,211 (2d Cir. 1990), she has still failed to allege conduct that is "arbitrary, conscienceshocking, or oppressive in a constitutional sense." Plaintiff argues that the District "compelled"
her to resign and to "forfeit her tenure," and "deliberately intended to injure" her. Plaintiff's
Opposition to Motion to Dismiss [Docket Entry No. 13] at I, 7. However, under New York state
law, a teacher may be suspended or terminated for teaching outside his or her certification area.
See, e.g., Smith v. Bd. ofEduc. of Wallkill Cent. School Dist., 65 N.Y.2d 797,482 N.E.2d 910,
493 N.Y.S.2d 114 (1985); Matter ofN.Y. State Off. of Children & Family Servs. (Lanterman),
62 A.D.3d 1109, 879 N.Y.S.2d 247 (3d Dep't 2009); see also 8 N.Y.C.R.R. 30-1.11 ("Nothing
herein contained shall be construed to authorize or require a board of education ... to place or
retain an individual in a position for which such individual does not possess appropriate
certification .... ").
The District therefore had a legitimate governmental purpose for terminating plaintiff's
employment: ensuring that its teachers taught only within their area of certification. Moreover,
since the District took similar action with respect to other tenured teachers, Compl.
is no indication that its action was "arbitrary." Contrary to plaintiff's argument, nothing about
the District's methods was "egregious" or "shocking." The District explained the reason for its
decision, then gave plaintiff the opportunity to resign in lieu of being terminated. Accordingly,
the Court finds that plaintiff has failed to state a substantive due process claim.
Leave to Amend
Plaintiff argues that, rather than dismiss, the Court should grant her leave to file a third
amended complaint. This request is denied.
A party may amend a pleading once as a matter of course "within 21 days of serving it,"
or "if the pleading is one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier." Fed. R. Civ. P. 15(a)(l). "In all other cases, a party may amend its
pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P.
15(a)(2). "The court should freely give leave when justice so requires." Id. It is well settled,
however, that "the grant of leave to amend the pleadings pursuant to Rule 15(a) is within the
discretion of the trial court." Zenith Radio Com. v. Hazeltine Research, Inc., 401 U.S. 321, 330,
91 S. Ct. 795, 28 L. Ed.2d 77 (1971) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9
L. Ed.2d 222 (1962)). The Court may deny leave to amend for reasons such as "undue delay, bad
faith, futility of the amendment, and perhaps most important, the resulting prejudice to the
opposing party." Richard Greenshields Sec. Inc. v. La!J, 825 F.2d 647,653 n. 6 (2d Cir. 1987)
(quoting State Teachers Retirement Bd. v. Fluor Com., 654 F.2d 843, 856 (2d Cir. 1981)). The
Court may also deny leave to amend "where the belated motion would unduly delay the course of
proceedings by, for example, introducing new issues for discovery." Grace v. Rosenstock, 228
F.3d 40, 53 (2d Cir. 2000).
Plaintiff has not filed a proposed amended complaint, nor has she set forth the basis on
which she would seek to amend. Furthermore, plaintiff has already been given an opportunity to
re-plead her substantive due process claim. [Docket Entry No. 9]. The Court finds that any
further amendment would be futile because the facts underlying this case simply do not support
plaintiffs constitutional and state law claims. In other words, "[t]he problem with [plaintiffs]
causes of action is substantive; better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000); see also Cortec Indus .. Inc. v. Sum Holding. L.P., 949 F.2d 42, 48 (2d
Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice."). Accordingly, plaintiffs application for
leave to amend is denied.
For the foregoing reasons, plaintiffs motion to dismiss the second amended complaint is
granted. Plaintiffs application for leave to further amend the complaint is denied. The Clerk of
Court is respectfully directed to close this case.
s/ Sandra J. Feuerstein
S dra J. Feuerstein
nited States Distric
March 26, 2012
Central Islip, New York
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