Agyeman v. Roosevelt Union Free School District et al
Filing
55
ORDER granting 42 Motion for Summary Judgment. For the reasons set forth herein, defendants' motion for summary judgment is granted with respect to plaintiff's Section 1983 claim, and the Court declines, in its discretion, to exercise su pplemental jurisdiction over plaintiff's New York state law claim, which it dismisses without prejudice to re-filing in state court. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/5/2017. (Zbrozek, Alex)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-987 (JFB) (ARL)
_____________________
AKOUSA AGYEMAN,
Plaintiff,
VERSUS
ROOSEVELT UNION FREE SCHOOL DISTRICT, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
June 5, 2017
___________________
the Court grants the motion with respect to
plaintiff’s Section 1983 claim, and the Court
declines, in its discretion, to exercise
supplemental jurisdiction over the remaining
New York State law claim, which it
dismisses without prejudice to re-filing in
state court.
JOSEPH F. BIANCO, District Judge:
Plaintiff elementary school teacher
Akousa
Agyeman
(“Agyeman”
or
“plaintiff”) brings this civil rights action
against her employer, the Roosevelt Union
Free School District (the “District”), as well
as the Board of Education of Roosevelt
Union Free School District (the “Board”), Dr.
Deborah L. Wortham, Dr. Dionne Wynn,
Ronald Grotsky, Nataesha McVea, and
Jeremiah
Sumter
(collectively,
“defendants”), pursuant to 42 U.S.C. § 1983
(“Section 1983”) and New York Civil
Service Law § 75-b. She alleges that
defendants violated her rights under the First
Amendment and retaliated against her for
engaging in various forms of protected
speech.
I. BACKGROUND
A. Facts
The following facts are taken from the
parties’ Rule 56.1 statements (“Defs.’ 56.1,”
ECF No. 43; “Pl.’s 56.1,” ECF No. 47), as
well as the parties’ affidavits and exhibits.
Unless otherwise noted, the facts are either
undisputed or uncontroverted by admissible
evidence. Upon consideration of the motion
for summary judgment, the Court will
construe the facts in the light most favorable
to plaintiff as the nonmoving party, and it will
Defendants now move for summary
judgment. For the reasons set forth below,
1
provide services to the students to whom she
had previously been assigned. (Defs.’ 56.1
¶ 11.)
resolve all factual ambiguities in her favor.
See Capobianco v. New York, 422 F.3d 47, 50
n.1 (2d Cir. 2001).
After the meeting, plaintiff wrote a
follow-up letter to Grotsky dated October 6,
2013 in which she mentioned her application
for a vacant position; alleged violations of
various New York State statutes and the
collective bargaining agreement between the
District and plaintiff’s union as a result of the
assignment transfer; and alleged unlawful
changes to District students’ Individualized
Education Plans (“IEPs”). (Id. ¶¶ 13-16;
Defs.’ Exh. F.)
1. Plaintiff’s Assignment Transfer
Plaintiff was first hired by the District in
1999. (Defs.’ 56.1 ¶ 1.) In September 2013,
plaintiff wrote an email to defendant District
Director of Pupil Personnel Services Dr.
Dionne Wynn (“Dr. Wynn”) expressing
concerns about her recent assignment transfer
from Special Education Lead Teacher/
Resource Room Teacher to Self-Contained
Teacher. (Id. ¶ 2; Defs.’ Exh. C, ECF No. 453.) Plaintiff said that “[a]lthough [her] work
on both a building and district level ha[d]
been extensive in the area of special
education . . . [her] suggestions and request
for leadership roles and initiatives
continue[d] to be overlooked and denied.”
(Defs.’ Exh. C.) In addition, that same
month, plaintiff wrote a letter to defendant
District Superintendent Dr. Deborah L.
Wortham (“Dr. Wortham”) regarding the
transfer to ask about returning to her prior
assignment and to seek consideration for
Special Education Coordinator positions that
were available. (Defs.’ 56.1 ¶¶ 3-4; Defs.’
Exh. D, ECF No. 45-4.)
2. Plaintiff’s E-mail Correspondence
Following the October 4, 2013 meeting,
plaintiff sent several e-mails contesting her
assignment transfer and expressing concerns
about various District policies and practices.
(Defs.’ 56.1 ¶ 28.) For example, in an e-mail
to Dr. Wynn and others dated January 13,
2014, plaintiff stated that the District had
failed to schedule Committee on Special
Education (“CSE”) meetings that had been
requested and said that the “denial of
procedural requirements prohibit[ed] the
opportunity to provide necessary access to
education programs and facilities . . . .”
(Defs.’ Exh. H, ECF No. 45-9.)
Plaintiff believed that her assignment
transfer violated the terms of her union’s
collective bargaining agreement, and she
subsequently requested a meeting to discuss
her transfer and the services she was then
being asked to assume as a result of the new
assignment. (Defs.’ 56.1 ¶¶ 6-7.) On
October 4, 2013, plaintiff met with Dr.
Wynn,
defendant
District
Assistant
Superintendent Ronald Grotsky (“Grotsky”),
and Jeff Pullin, the President of the District
Teachers Association. (Id. ¶¶ 8-9; Defs.’
Exh. F, ECF No. 45-7.)
Plaintiff was
concerned at that time that her assignment
transfer would mean that she would no longer
On January 30, 2014, plaintiff sent
another e-mail to, inter alia, Dr. Wynn and
defendant District Principal Nateasha McVea
(“McVea”) expressing her concerns
regarding a student’s reentry into the
classroom after returning from home
instruction and stating that the District had
not followed protocol and regulations by
permitting the student to return without any
meeting, intervention, or plan of action.
(Pl.’s 56.1 ¶ 117; Defs.’ Exh. J, ECF No. 4511.) Plaintiff testified that, on that same day,
Dr. Wynn and defendant District Assistant
2
Principal Jeremiah Sumter (“Sumter”) pulled
her out of her classroom, reprimanded her in
front of a student, and later charged her with
insubordination. (Defs.’ 56.1 ¶ 23.)
provided
and
received
mandated
accommodations as noted on their IEP for the
2014” New York State education assessment.
(Defs.’ 56.1 ¶ 38; Pl.’s 56.1 ¶ 122; Defs.’
Exhs. M and N, ECF Nos. 45-14 and 45-15.)
Plaintiff said that the District had failed to
respond to her complaints and stated that,
although she was “very concerned of [sic]
[D]istrict’s familiar ‘malice tactics’ of
retaliation especially to whistle blowing (as
[she] ha[d] already encountered many
instances thus far) [she was] very concerned
about the rights of the students [she]
serve[d].” (Pl.’s 56.1 ¶ 122; Defs.’ Exhs. M
and N.) The April 11, 2014 Letter sent to
SEQA is stamped as having been received on
April 23, 2014 (Defs.’ Exh. M), and in
correspondence dated May 1, 2014, an
investigator from the New York State
Education Department indicated that the
Department had received the April 11, 2014
Letter on April 21, 2014 (Defs.’ 56.1 ¶ 48).
On March 21, 2014, plaintiff e-mailed Dr.
Wynn and McVea and expressed concerns
regarding District administration of New
York State education assessments. (Pl.’s
56.1 ¶ 116; Defs.’ Exh. I, ECF No. 45-10.)
Subsequently, on March 28 and March 31,
2014, plaintiff sent e-mails to Dr. Wynn,
McVea, Sumter, and others regarding the
treatment of a particular student by plaintiff’s
co-workers and the administration of that
student’s IEP. (Pl.’s 56.1 ¶ 118; Defs.’ Exh.
K, ECF No. 45-12.) Thereafter, on April 14,
2014, plaintiff sent an e-mail regarding
whether plaintiff and other teachers would be
provided time during the school day to
prepare for annual student review meetings.
(Defs.’ 56.1 ¶ 29.) The following day,
plaintiff e-mailed Dr. Wynn, McVea, and
others and said that the District had failed to
address teachers’ concerns with reference to
a student’s current status, placement, and
IEP, and plaintiff said that the teachers
wanted “to absolve all responsibility for the
current status and or decision making for this
student.” (Pl.’s 56.1 ¶ 120; Defs.’ Exh. L,
ECF No. 45-13.)
Plaintiff testified that she also sent a copy
of the April 11, 2014 Letter to the District.
(Id. ¶ 36.) However, she does not know who
might have received that correspondence.
(Id. ¶ 45.) Further, she said that the copy of
the April 11, 2014 Letter sent to the District
was addressed to 315 Wagner Place,
Roosevelt, New York 11757, but plaintiff
admits that (1) the correct address at the time
for the District office was 240 Denton Place,
Roosevelt, New York 11571; and (2) at no
point in 2014 was 315 Wagner Place an
address associated with a District office,
school, or other property. (Id. ¶¶ 41-43.)
Neither copy of the April 11, 2014 Letter sent
to the New York State Education Department
indicates that plaintiff e-mailed that
correspondence to the District. (Id. ¶ 44.)
Plaintiff also did not inform anyone at the
District that she was planning to send a letter
3. Plaintiff’s April 11, 2014 Letter
In a letter dated April 11, 2014 1 (the
“April 11, 2014 Letter”) and sent to two
separate offices within the New York State
Education Department—the office of Special
Education Quality Assurance (“SEQA”) and
the Office of State Assessment—plaintiff
stated that she had “an obligation and duty to
notify the proper authorities on the
inconsistencies and negligence of the
[D]istrict to ensure that all students were
1
Plaintiff testified that she does not recall when she
wrote this correspondence. (Defs.’ 56.1 ¶ 30.)
3
to the New York
Department. (Id. ¶ 49.)
State
recovered all data to her new profile, as well
as to the network. (Id. ¶¶ 59-60.) Thereafter,
Repetti printed a report showing when a
particular user logs on, unlocks, or logs off of
any computer on the District’s network. (Id.
¶ 62.) The report established that plaintiff’s
account had been used to log on to her
computer at 8:30 p.m. on April 4, 2014 and
to unlock the same computer on April 11,
2014 at 9:58 p.m., indicating that someone
had been physically sitting at plaintiff’s
computer at those times. (Id. ¶ 63.) Repetti
then reviewed security footage from those
dates and times, and he found that at
approximately 8:20 p.m. on April 4, 2014 and
at 9:54 p.m. on April 11, 2014, plaintiff
entered the school and proceeded to her
classroom. (Id. ¶ 64.) Repetti provided these
findings, including copies of the security
footage, to Grotsky. (Id. ¶ 65.) Grotsky then
communicated this information to Dr.
Wortham and District counsel. (Id. ¶ 66.)
After being informed of Repetti’s findings,
the Board and Dr. Wortham met with District
counsel and agreed that further investigation
was necessary. (Id. ¶ 67.)
Education
By letter dated May 1, 2014, the New
York State Education Department informed
the District that it had received plaintiff’s
April 11, 2014 Letter on April 21, 2014 and
would be investigating her allegations. (Id.
¶ 94.)
4. Investigation of Plaintiff
On April 21, 2014, plaintiff reported to
work and was due to enter her class grades
into the District computer system. (Id. ¶ 50.)
Plaintiff later represented that she was unable
to do so because of computer issues. (Id.
¶ 51.) On that day, plaintiff informed Chris
Repetti (“Repetti”) of the District’s
Technology Department that files had been
deleted from her computer. (Id. ¶ 52.) As a
result, Repetti remotely accessed plaintiff’s
computer and found a very sparse desktop
with three icons and no start menu. (Id. ¶ 53.)
Repetti then accessed the file system on the
same computer and found that plaintiff’s
desktop folder was missing. (Id. ¶ 54.) He
learned that plaintiff had saved all missing
data to her desktop computer rather than the
District’s network, which potentially made
recovery of the data very difficult, and further
investigation revealed that there were data
located in the computer’s recycle bin that
appeared to belong to plaintiff, indicating that
the data had been deleted manually by
someone sitting at the computer. (Id. ¶¶ 5556.) The bulk of the data had been deleted on
two dates: Friday April 4, 2014, between 8:30
p.m. and 9:00 p.m.; and April 11, 2014,
between 10:00 p.m. and 11:00 p.m. (Id.
¶ 57.)
As part of that investigation, Dr.
Wortham reviewed the security footage with
District counsel. (Id. ¶ 68.) The videos
showed plaintiff being let into the school
building by District employee David Dillon
(“Dillon”) on April 4, 2014 at approximately
8:20 p.m. with a child identified as plaintiff’s
daughter. (Id. ¶¶ 69, 80.) At approximately
8:48 p.m., Rich Adams (“Adams”)—the
father of plaintiff’s daughter and an
individual employed as a cleaner at another
District school—entered the school building.
(Id. ¶ 70.) Adams then went to plaintiff’s
classroom where he remained until
approximately 9:38 p.m. (Id.) At around
11:43 p.m., another individual entered
plaintiff’s classroom, and about five minutes
later, plaintiff, her daughter, and that
individual left the classroom. (Id. ¶ 71.)
Plaintiff confirmed for Repetti that the
data located in the computer recycle bin were
the missing files. (Id. ¶ 58.) Repetti then
physically accessed plaintiff’s computer and
4
employee’s assignment to another District
facility, and it stated that this violated District
policies regarding staff access and school
visitors. (Id. ¶ 105.) The Counseling Memo
also stated that plaintiff was free to return to
work on May 16, 2014 and that plaintiff
should not construe the Counseling Memo as
“discipline”; however, it did not “rule out
formal disciplinary action regarding this
matter should [Dr. Wortham’s] expectations
for [plaintiff’s] future conduct . . . not be
met,” and Dr. Wortham said that the
Counseling Memo would be placed in
plaintiff’s personnel file. (Id. ¶¶ 106-07;
Defs.’ Exh. AA, ECF No. 45-28.) Plaintiff
was provided with an opportunity to submit a
response to the Counseling Memo, which she
did on May 14, 2014, and Dr. Wortham sent
plaintiff a reply on May 20, 2014. (Defs.’
56.1 ¶¶ 108-10.)
Video footage also depicted Dillon
allowing plaintiff into the same District
school building on April 11, 2014 at
approximately 9:54 p.m. (Id. ¶ 72.) Plaintiff
then entered her classroom, where she
remained until about 11:30 p.m. (Id. ¶ 73.)
A few minutes later, plaintiff allowed Adams
into the building, and the two then entered
plaintiff’s classroom. (Id. ¶¶ 74-75.) Adams
and plaintiff left the classroom at
approximately 11:49 p.m. and 11:56 p.m.,
respectively. (Id. ¶¶ 76-77.) The District
interviewed Dillon on April 27, 2014, and he
confirmed that he had allowed plaintiff into
the school building on those dates and that he
had seen plaintiff’s daughter and Adams in
the building on those dates. (Id. ¶¶ 79-83.)
Based on the review of plaintiff’s
computer and the security footage, the
District determined that further investigation
was warranted and also decided to place
plaintiff on home leave with pay. (Id. ¶¶ 8687.) On May 2, 2014, plaintiff met with
Grotsky and her union president to discuss
the matter. (Id. ¶ 89.) At that meeting,
plaintiff was informed that she was being
assigned to home pending the completion of
the investigation. (Id. ¶ 90.)
B. Procedural History
Defendants removed this action from
New York State court on February 25, 2015.
(ECF No. 1.) Plaintiff then filed an amended
complaint on April 27, 2015. (ECF No. 12.)
Defendants moved to dismiss that pleading
on June 23, 2015 (ECF No. 14); plaintiff filed
her opposition on September 10, 2015 (ECF
No. 20); and defendants replied on
September 23, 2015 (ECF No. 22). The
Court held oral argument on January 5, 2016
(ECF No. 25), and in a bench ruling on
January 11, 2016, the Court dismissed
plaintiff’s Equal Protection and 42 U.S.C.
§ 1985 claims, as well as plaintiff’s Section
1983 First Amendment claim against McVea,
but denied defendants’ motion in all other
respects (ECF Nos. 26-27).
Following the conclusion of the District’s
investigation, plaintiff was asked by letter
dated May 12, 2014 to meet with Grotsky the
following day. (Id. ¶ 102.) That meeting was
moved to May 14, 2014 at plaintiff’s request.
(Id. ¶ 103.) At that meeting, plaintiff was
presented with a May 13, 2013 counseling
memorandum signed by Dr. Wortham and
setting forth the results of the District’s
investigation (the “Counseling Memo”). (Id.
¶ 104.) The Counseling Memo indicated,
among other things, that on two occasions—
the evenings of April 4 and April 11, 2014—
plaintiff had been present in her classroom
with another District employee for an
extended period of time notwithstanding that
Thereafter, on February 3, 2017,
defendants moved for summary judgment on
plaintiff’s remaining Section 1983 and New
York State law claims. (ECF No. 42.)
Plaintiff filed opposition papers on April 19,
2017 (ECF No. 50), and defendants
5
submitted their reply on May 3, 2017 (ECF
No. 52). The Court held oral argument on
May 17, 2017 (ECF No. 54) and has fully
considered the parties’ submissions.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).
II. STANDARD OF REVIEW
The standard for summary judgment is
well-settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d
Cir. 2013). The moving party bears the
burden of showing that it is entitled to
summary judgment. See Huminski v.
Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
Rule 56(c)(1) provides that a
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must come
forward with specific facts showing that there
is a genuine issue for trial.’” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(alteration and emphasis in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” 477 U.S. at 249-50
(citations omitted).
Indeed, “the mere
existence of some alleged factual dispute
between the parties alone will not defeat an
otherwise properly supported motion for
summary judgment.”
Id. at 247-48
(emphasis in original). Thus, the nonmoving
party may not rest upon mere conclusory
allegations or denials but must set forth
“‘concrete particulars’” showing that a trial is
needed. R.G. Grp., Inc. v. Horn & Hardart
Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting
SEC v. Research Automation Corp., 585 F.2d
31, 33 (2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co.-Conn., 77 F.3d 603, 615 (2d
Cir. 1996) (quoting Research Automation
Corp., 585 F.2d at 33).
party asserting that a fact cannot be or
is genuinely disputed must support
the assertion by: (A) citing to
particular parts of materials in the
record,
including
depositions,
documents, electronically stored
information,
affidavits
or
declarations, stipulations (including
those made for purposes of the
motion
only),
admissions,
interrogatory answers, or other
materials; or (B) showing that the
materials cited do not establish the
absence or presence of a genuine
dispute, or that an adverse party
cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1). The court “‘is not to
weigh the evidence but is instead required to
view the evidence in the light most favorable
to the party opposing summary judgment, to
draw all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
6
III. DISCUSSION
under the Constitution of the United States.”
Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.
1999) (citation omitted).
Defendants argue that they are entitled to
summary judgment on plaintiff’s Section
1983 claim on the following grounds: (1) the
speech at issue is not protected under the First
Amendment; (2) plaintiff was not subjected
to an adverse employment action prior to
being placed on home leave in May 2014; and
(3) there is no causal link between the April
11, 2014 Letter speech and the alleged
subsequent adverse employment actions.
Here, the parties do not dispute that
defendants were acting under color of state
law. The question presented, therefore, is
whether defendants’ conduct deprived
plaintiff of the rights she asserts under the
First Amendment. Specifically, plaintiff
claims that defendants retaliated against her
for (1) sending e-mails to District employees
contesting District policies and procedures
that she alleged were in violation of law; and
(2) sending the April 11, 2014 Letter to the
New York State Education Department.
As set forth below, the Court agrees with
defendants’ first argument and concludes that
neither plaintiff’s e-mail correspondence nor
her April 11, 2014 letter constitute protected
speech. As a result, the Court determines that
defendants are entitled to summary judgment
on plaintiff’s Section 1983 claim, and it
declines, in its discretion, to exercise
supplemental jurisdiction over the remaining
New York State law claim, which the Court
dismisses without prejudice to re-filing in
state court.
The Second Circuit has “described the
elements of a First Amendment retaliation
claim in several ways, depending on the
factual context.” Williams v. Town of
Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008).
Where, as here, a public employee brings a
retaliation claim based on the First
Amendment, plaintiff must put forth
evidence that demonstrates the following in
order to establish a prima facie case:
“(1) [she] engaged in constitutionally
protected speech because [she] spoke as [a]
citizen[] on a matter of public concern;
(2) [she] suffered an adverse employment
action; and (3) the speech was a ‘motivating
factor’ in the adverse employment decision.”
Skehan v. Village of Mamaroneck, 465 F.3d
96, 106 (2d Cir. 2006), overruled on other
grounds by Appel v. Spiridon, 531 F.3d 138,
140 (2d Cir. 2008). However, defendants
may still “escape liability if they can
demonstrate that either (1) [they] would have
taken the same adverse action against the
A. Section 1983 Claim
Section 1983 “is not itself a source of
substantive rights, but a method for
vindicating federal rights elsewhere
conferred by those parts of the United States
Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S.
137, 145 n.3 (1979). 2 For claims under
Section 1983, a plaintiff must prove that
“(1) the challenged conduct was attributable
at least in part to a person who was acting
under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed
2
Specifically, Section 1983 provides:
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law . . . .
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
42 U.S.C. § 1983.
7
plaintiff regardless of the plaintiff’s speech;
or (2) the plaintiff’s expression was likely to
disrupt the government’s activities and that
the harm caused by the disruption outweighs
the value of the plaintiff’s expression.” Id.
This is known as the “Pickering balancing
test” and is a question of law for the Court.
See Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.
2004) (referring to Pickering v. Bd. of Educ.,
391 U.S. 563, 568 (1968)).
Even if
defendants prevail on the Pickering test,
plaintiff may still succeed by showing that
the adverse action was in fact motivated by
retaliation and not by any fear of a resultant
disruption. See Reuland v. Hynes, 460 F.3d
409, 415 (2d Cir. 2006).
1. Protected Speech
As the Second Circuit has emphasized,
“[i]t is established law in this Circuit that,
‘[r]egardless of the factual context, we have
required a plaintiff alleging retaliation to
establish speech protected by the First
Amendment.’” Sousa v. Roque, 578 F.3d
164, 169-70 (2d Cir. 2009) (quoting
Williams, 535 at 76). More specifically, “[t]o
determine whether or not a plaintiff’s speech
is protected, a court must begin by asking
‘whether the employee spoke as a citizen on
a matter of public concern.’” Id. at 170
(quoting Garcetti v. Ceballos, 547 U.S. 410,
418 (2006)). It is critical to note that this test
contains two separate criteria: (1) that the
employee speak as a citizen; and (2) that the
employee speak on a matter of public
concern. If plaintiff fails to satisfy either
requirement,
then
plaintiff’s
First
Amendment retaliation claim must fail as a
matter of law. See id. (“If the court
determines that the plaintiff either did not
speak as a citizen or did not speak on a matter
of public concern, ‘the employee has no First
Amendment cause of action based on his or
her employer’s reaction to the speech.’”
(quoting Garcetti, 547 U.S. at 418)). 4
For the reasons set forth below, and after
careful consideration of the record under the
applicable summary judgment standard, the
Court concludes that plaintiff is unable to
establish a prima facie retaliation claim as a
matter of law. Specifically, the Court
concludes that the speech at issue—namely,
plaintiff’s e-mail correspondence and the
April 11, 2014 Letter—is not protected by the
First Amendment because plaintiff was
speaking as a public employee, and not as a
private citizen. 3 Accordingly, the Court
grants defendants’ motion for summary
judgment on plaintiff’s Section 1983 claim.
In Garcetti, the Supreme Court clarified
that in determining whether the speech at
issue is constitutionally protected, a court
must first decide whether the plaintiff was
3
As a result, the Court need not, and does not, address
defendants’ additional arguments that (1) plaintiff did
not suffer an adverse employment action prior to May
2014 and failed to establish a causal link between such
action and her speech; and (2) there is no causal link
between the April 11, 2014 Letter and any subsequent
adverse employment actions.
public concern because he was motivated by his
employment grievances.” Id. at 174. Instead,
“[w]hether or not speech addresses a matter of public
concern must be determined by the content, form, and
context of a given statement, as revealed by the whole
record, and while motive surely may be one factor in
making this determination, it is not, standing alone,
dispositive or conclusive.” Id. at 175 (citations
omitted). However, this Court need not address the
“matter of public concern” requirement in the instant
case because the undisputed facts demonstrate as a
matter of law that plaintiff was not speaking as a
citizen, but rather as an employee pursuant to her
official duties.
4
In Sousa, the Second Circuit reiterated that “a
speaker’s motive is not dispositive in determining
whether his or her speech addresses a matter of public
concern.” 578 F.3d at 170. Thus, the Court held that
“the District Court erred in its determination in this
case that Sousa’s speech did not address a matter of
8
the plaintiff, a deputy district attorney with
certain supervisory responsibilities over
other lawyers, wrote the memorandum at
issue pursuant to his employment duties. Id.
at 421. Although the Supreme Court did not
set forth specific criteria for determining
when speech is made pursuant to an
employee’s officials duties, it instructed that
the inquiry “is a practical one[,]” because
“the listing of a given task in an employee’s
written job description is neither necessary
nor sufficient to demonstrate that conducting
the task is within the scope of the employee’s
professional duties for First Amendment
purposes.” Garcetti, 547 U.S. at 424-25. It
also noted that speech by a public employee
retains some possibility of First Amendment
protection when it “is the kind of activity
engaged in by citizens who do not work for
the government.” Id. at 423. To illustrate its
point by way of comparison, Garcetti “also
list[ed] examples of prototypical protected
speech by public employees, namely
‘mak[ing] a public statement, discuss[ing]
politics with a coworker, writ[ing] a letter to
newspapers or legislators, or otherwise
speak[ing] as a citizen.’” Davis v. McKinney,
518 F.3d 304, 312 (5th Cir. 2008) (quoting
Spiegla v. Hull, 481 F.3d 961, 967 (7th Cir.
2007)).
speaking as a “citizen,” rather than as a public
employee. Id. at 421. “If the answer is ‘no,’
then no First Amendment claim arises, and
that ends the matter.” Caraccilo v. Vill. of
Seneca Falls, 582 F. Supp. 2d 390, 405
(W.D.N.Y. 2008). The Court explained that
[r]estricting speech that owes its
existence to a public employee’s
professional responsibilities does not
infringe any liberties the employee
might have enjoyed as a private
citizen. It simply reflects the exercise
of employer control over what the
employer itself has commissioned or
created.
Garcetti, 547 U.S. at 421-22. By expressly
holding that speech pursuant to a public
employee’s official duties is not insulated
from
employer
discipline,
Garcetti
emphasized that “before asking whether the
subject-matter of particular speech is a topic
of public concern, [a] court must decide
whether the plaintiff was speaking ‘as a
citizen’ or as part of [his] public job.” Mills
v. City of Evansville, 452 F.3d 646, 647 (7th
Cir. 2006); see also Benvenisti v. City of N.Y.,
No. 04-CV-3166 (JGK), 2006 WL 2777274,
at *7 (S.D.N.Y. Sept. 23, 2006) (“First, the
Court must determine whether the plaintiff
was speaking as a ‘citizen’ for First
Amendment purposes. After that, the Court
must turn to the traditional [Connick v.
Myers, 461 U.S. 138 (1983)] analysis and ask
whether, viewing the record as a whole and
based on the content, context, and form of a
given statement, the plaintiff’s speech was
made as a citizen upon ‘matters of public
concern.’” (citations omitted)).
Since Garcetti, lower courts have
developed more guidelines for determining
whether speech is made pursuant to a public
employee’s official duties. Although none of
the following factors are dispositive, they
may be considered by the Court: “the
plaintiff’s job description; the persons to
whom the speech was directed; and whether
the speech resulted from special knowledge
gained through the plaintiff’s employment.”
Caraccilo, 582 F. Supp. 2d at 405. As
indicated by Garcetti, two relevant criteria
are whether the speech occurs in the
workplace and whether the speech concerns
the subject matter of the employee’s job. See
However, Garcetti did not “articulate a
comprehensive framework for defining the
scope of an employee’s duties in cases where
there is room for serious debate.” 547 U.S. at
424. In that case, there was no dispute that
9
547 U.S. at 420-21; accord Abdur-Rahman v.
Walker, 567 F.3d 1278, 1282 (11th Cir.
2009). Again, “[a]lthough there is no simple
checklist or formula by which to determine
whether the employee was speaking as a
private citizen or as a public employee . . .
‘the cases distinguish between speech that is
the kind of activity engaged in by citizens
who do not work for the government and
activities undertaken in the course of
performing one’s job.’” Caraccilo, 582 F.
Supp. 2d at 410 (quoting Davis, 518 F.3d at
312-13). 5
at 203. In reaching this decision, the Court
emphasized that the teacher’s grievance
implicated his official responsibilities
because it was “‘part-and-parcel of his
concerns’ about his ability to ‘properly
execute his duties,’ as a public school
teacher—namely, to maintain classroom
discipline, which is an indispensable
prerequisite to effective teaching and
classroom learning.’” Id. at 203 (quoting
Williams v. Dallas Indep. Sch. Dist., 480 F.3d
689, 694 (5th Cir. 2007)). Likewise, in
Woodlock v. Orange Ulster B.O.C.E.S., 281
F. App’x 66, 68 (2d Cir. 2008), the Second
Circuit affirmed summary judgment to the
defendants on the plaintiff’s First
Amendment claim because the plaintiff’s
“communications regarding [a student] and
the lack of physical education and art classes
at the [school] were made pursuant to her
‘official duties’ as a special education
counselor, in which capacity she was
responsible for monitoring her students’
behavior, needs, and progress.”
a. Plaintiff’s E-mails
The Court concludes that, as a matter of
law, plaintiff’s e-mails to various District
employees, including Dr. Wynn and McVea,
are not protected speech because plaintiff
spoke as a public employee, and not as a
private citizen.
Although defendants have not pointed to
an official policy that requires a teacher to
report such incidents, the Second Circuit has
made clear that “under the First Amendment,
speech can be ‘pursuant to’ a public
employee’s official job duties even though it
is not required by, or included in, the
employee’s job description, or in response to
a request by the employer.” Weintraub v. Bd.
of Educ., 593 F.3d 196, 203 (2d Cir. 2010).
In Weintraub, a public school teacher
complained to his supervisor and filed a
grievance with his union regarding how a
student was not properly disciplined. Id. at
199. The Second Circuit held the teacher’s
speech was not protected under Garcetti
because he spoke as an employee, and not as
a citizen for First Amendment purposes. Id.
Here, plaintiff argues that she “was truly
concerned about the needs of disabled
students” and that her e-mails “were not
made in furtherance of her job duties and did
not implicate her ability to do her job.” (Pl.’s
Opp’n Br., ECF No. 50, at 5.) She also
claims that the “record indicates [that] not all
of plaintiff’s concerns even concerned her.
Many of them concerned fellow teachers.”
(Id.) However, to the contrary, the record and
the case law demonstrate that plaintiff
indisputably spoke as a public employee in
her internal e-mails complaining about
student discipline, the conduct of other
teachers and District personnel, and the lack
of resources and support; and alleging
5
To the extent that it is unclear whether this issue is a
question of law for the Court or a mixed question of
law and fact in part for a fact-finder, the Second
Circuit has said that “[w]hether the employee spoke
solely as an employee and not as a citizen is . . . largely
a question of law for the court.” Jackler v. Byrne, 658
F.3d 225 (2d Cir. 2011). Here, the issue of whether
plaintiff spoke as a citizen or a public employee is
clearly a matter of law for the Court because no factual
disputes exist in this case regarding the underlying
content of plaintiff’s speech, her job responsibilities,
or the other relevant factors.
10
Supp. 2d 178, 207 (E.D.N.Y. 2009) (“The
substance
of
Plaintiff’s
complaints
concerning the lack of sufficient educational
and instructional resources and the
appropriateness of the counseling curriculum
are matters relating to [the plaintiff’s] own
job responsibilities as an educator and school
psychologist, and therefore is unprotected
speech.”). This authority makes clear that
ensuring proper student discipline and
obtaining the resources and support
necessary to fulfill plaintiff’s duties are
“indispensable prerequisite[s] to effective
teaching
and
classroom
learning.”
Weintraub, 593 F.3d at 203. Moreover,
because plaintiff alleged in her e-mails that
the District had violated applicable law, she
acted as a public employee who “air[ed] a
complaint or grievance, or expresse[d]
concern about misconduct . . . .” Weintraub
v. Bd. of Educ. of City of N.Y., 489 F. Supp.
2d 209, 219, aff’d 593 F.3d at 196.
violations of law and District policies and
procedures. As defendants note in their brief,
courts have routinely and correctly held that
such subject matter involves a public school
teacher’s professional duties. See, e.g.,
Woodlock, 281 F. App’x at 68; Hicks v.
Benton Cty. Bd. of Educ., No. 14-CV-1345,
2016 WL 7028954, at *10 (W.D. Tenn. Dec.
1, 2016), reconsideration denied, 2017 WL
421927 (W.D. Tenn. Jan. 31, 2017) (“The
Court finds that the Plaintiff’s statements to
parents concerning the special education
program at Big Sandy were part of her
official duties and, therefore, not protected by
the First Amendment.”); White v. City of New
York, No. 13-CV-7156 (ER), 2014 WL
4357466, at *11 (S.D.N.Y. Sep. 3, 2014)
(dismissing First Amendment retaliation
claim because the “[p]laintiff’s speech
pertaining to the location and scheduling of
the services for her special education students
clearly falls within the scope of her
professional duties”); Stahura-Uhl v.
Iroquois Cent. Sch. Dist., 836 F. Supp. 2d
132, 142 (W.D.N.Y. 2011) (dismissing First
Amendment retaliation claim because the
plaintiff’s “complaints to co-workers and
parents cannot be reasonably categorized as
falling outside her official duties. It takes no
standardized employee handbook or directive
from the School District for this Court to
conclude that in addition to instructing her
students, a teacher should also advocate on
their behalf. This includes communicating
with other teachers when concerned about a
student’s progress . . . .”); Massaro v. Dep’t
of Educ., No. 08 Civ. 10678 (LTS) (FM),
2011 WL 2207556, at *3 (S.D.N.Y. June 3,
2011) (holding that the plaintiff’s
“complaints regarding the sanitary conditions
in her classroom and the health concerns that
arose from them were made pursuant to her
duties as an employee”), aff’d sub nom.
Massaro v. N.Y. City Dep’t of Educ., 481 F.
App’x 653 (2d Cir. 2012); Dorcely v.
Wyandanch Union Free Sch. Dist., 665 F.
In addition, the fact that plaintiff sent her
e-mails to other District employees as
internal correspondence and did not publicize
her concerns weighs in defendants’ favor.
See, e.g., Massaro, 481 F. App’x at 655-56
(holding that “the district court’s conclusion
that [the plaintiff] spoke as an employee
rather than a private citizen is supported by
the facts that she aired her complaints only to
several school administrators rather than to
the public . . . .”); McGuire v. City of N.Y.,
No. 12-CV-814 (NGG) (PK), 2015 WL
8489962, at *7 (E.D.N.Y. Dec. 8, 2015)
(“Second, [the plaintiff’s] speech was made
through official channels. Courts in this
circuit have found, that where an employee
speaks only through official channels, rather
than publicly, they are more likely to be
speaking as an employee.”); Anglisano v.
N.Y. City Dep’t of Educ., No. 14-CV-3677
(SLT) (SMG), 2015 WL 5821786, at *7
(E.D.N.Y. Sept. 30, 2015) (“While plaintiff
asserts that she was acting as a ‘private
11
b. The April 11, 2014 Letter
citizen,’ the fact that she spoke only to her
direct supervisor and to the principal belies
this conclusory assertion.”).
For substantially the same reasons
discussed above, the Court concludes that the
April 11, 2014 Letter is not protected speech.
Plaintiff argues that “she was motivated by a
desire to protect others and to bring
defendants’ alleged wrongdoing to light,”
rather than “by her own personal grievances.”
(Pl.’s Opp’n Br. at 5.) In addition, she
contends that the April 11, 2014 Letter
Lastly, the third factor—whether the
speech resulted from knowledge gained
through plaintiff's employment—also favors
defendants. It is clear from the content of
plaintiff’s e-mails, which discuss student
discipline, IEPs, District procedures, and
resource allocation, that plaintiff “was only
able to complain about [the District’s] acts
because of the information she obtained as a
public employee.” Kelly v. Huntington
Union Free Sch. Dist., No. 09-CV-2101
(JFB) (ETB), 2012 WL 1077677, at *14
(E.D.N.Y. Mar. 30, 2012).
had a “civilian analogue” that is a
private citizen could have engaged in
the same type of speech. Anyone
could have filed the complaint to the
State Education Department. That
was not dependent on plaintiff’s
status as a public employee.
Plaintiff’s speech was not within the
confines of an employee grievance
procedure, which only an employee
could pursue . . . .
In the face of this clear and consistent
case law, plaintiff was unable, in either her
brief or at oral argument, to cite a single
decision holding that speech analogous to the
e-mails at issue here is protected under the
First Amendment. Thus, pursuant to Garcetti
and its progeny, the undisputed facts of this
case demonstrate that plaintiff was speaking
as a public employee, rather than as a private
citizen, in her internal correspondence to
District employees. See Nadolecki v. William
Floyd Union Free Sch. Distirct, No. 15-CV2915 (JMA) (AYS), 2016 WL 4768823, at *6
(E.D.N.Y. July 6, 2016) (holding that the
“plaintiff’s complaints . . . were all pursuant
to his official duties as a teacher” because “he
made complaints regarding the reading
program, integration of classes, the math
curriculum, special accommodations and
services having to do with student IEPs, and
the effects that scheduling cuts would have
on his math class”), report and
recommendation adopted, 2016 WL 4766268
(E.D.N.Y. Sept. 13, 2016).
(Id. at 6 (citation omitted).)
However, as established by the case law
summarized above, plaintiff’s decision to
report “inconsistencies and negligence of the
[D]istrict to ensure that all students were
provided
and
received
mandated
accommodations as noted on their IEP for the
2014” (Defs.’ Exhs. M and N) “was directly
related to her responsibilities as a teacher”
because “[r]eporting a violation of state law
to ensure the welfare of students is a duty of
a teacher, and ‘in furtherance of the execution
of one of her core duties,’” Harris v. Bd. of
Educ. of the City Sch. Dist. of the City of N.Y.,
No. 16-CV-3809 (JBW), 2017 WL 448603,
at *8 (E.D.N.Y. Feb. 2, 2017) (quoting
Weintraub, 593 F.3d at 203). Further,
plaintiff acknowledged in the April 11, 2014
Letter that she had “an obligation and duty to
notify the proper authorities” of her
complaints (Defs.’ Exhs. M and N), and such
12
undisputed facts paint a clear picture of an
employee speaking out about [her] views
regarding how best to perform [her] job
duties, rather than of someone attempting to
make a ‘contribution[] to the civic
discourse.’”
Frisenda v. Inc. Vill. of
Malverne, 775 F. Supp. 2d 486, 507
(E.D.N.Y. 2011) (quoting Garcetti, 547 U.S.
at 422.) “Far from resembling anything close
to ‘activity engaged in by citizens who do not
work for the government[,]’” id. (quoting
Garcetti, 547 U.S. at 423), “plaintiff’s speech
was rather ‘a means to fulfill [her]
employment requirements,’” id. (quoting
Renken v. Gregory, 541 F.3d 769, 774 (7th
Cir. 2008)). This is especially true given that
the April 11, 2014 Letter conveyed
information that plaintiff gained through her
employment. Had plaintiff not been a
teacher, it is unlikely that she would have had
the requisite knowledge to contest the
District’s implementation of IEPs and other
procedures. “Accordingly, [plaintiff] was
only able to complain about [defendants’]
acts because of the information she obtained
as a public employee.” Kelly, 2012 WL
1077677, at *14.
an admission supports a finding that she acted
as a public employee, see, e.g., Ross v. N.Y.
City Dep’t of Educ., 935 F. Supp. 2d 508, 520
(E.D.N.Y.
2013)
(“But
more
importantly, Plaintiff
himself
testified
repeatedly that he filed the OSHA complaint
because of his duties as an educator.”);
McNamee v. Cty. of Allegheny, No. CIV.A.
05-1536, 2007 WL 2331878, at *8 (W.D. Pa.
Aug. 13, 2007) (finding that plaintiff’s letter
complaint to the Department of Health was
not protected speech because, inter alia,
plaintiff acknowledged in her deposition that
she made the complaint pursuant to her
official duties).
The fact that plaintiff sent the April 11,
2014 to recipients outside of her direct chainof-command, to the New York Education
Department, does not alter this Court’s
conclusion given all of the facts in this case.
Even assuming that plaintiff is correct that
“anyone could have engaged in the same type
of speech” by sending a similar letter to the
New York State Education Department, that
would not be dispositive. Under Garcetti, the
critical inquiry is whether plaintiff’s “speech
‘owe[d] its existence to [her] professional
responsibilities’ as a teacher, and as such, is
unprotected.” Stahura-Uhl, 836 F. Supp. 2d
at 142 (quoting Garcetti, 547 U.S. at 421-22).
In this case, plaintiff’s repeated statements
“regarding why [s]he contacted” the New
York State Education Department—and not
any other public agency or official—“and the
content of [her] complaint shed the most light
on the ‘central issue’ in this case: the
‘perspective of the speaker.’” Ross, 935 F.
Supp. 2d at 522 (quoting Weintraub, 593
F.3d at 204). By its own terms, the purpose
of the April 11, 2014 Letter was “to ensure
that all [District] students were provided and
received mandated accommodations as noted
on their IEP for the 2014” New York State
education assessment. (Defs.’ Exhs. M and
N.)
“[T]aken together, all of these
Other courts have correctly found that
similar correspondence implicated public
duties and were authored by public
employees, and not private citizens. See
Rodriguez v. Int’l Leadership Charter Sch.,
No. 08-CV-1012 (PAC), 2009 WL 860622,
at *4 (S.D.N.Y. Mar. 30, 2009) (“As a teacher
assigned to special needs students, [the
plaintiff] had a professional duty to attend to
her students’ educational needs. When she
complained . . . to the Department of
Education that these needs were not being
met, she did so in an official capacity, not as
a private citizen on a matter of public
interest.”); Nadolecki, 2016 WL 4768823, at
*7 (“Further, even if [the plaintiff’s]
communications were not made through
official channels, or up the chain of
13
command, courts have dismissed similar
claims so long as the teachers were talking
about the educational needs of the students
they teach.”); Winder v. Erste, 566 F.3d 209,
215 (D.C. Cir. 2009) (“ In our cases applying
Garcetti, we have consistently held that a
public employee speaks without First
Amendment protection when he reports
conduct that interferes with his job
responsibilities, even if the report is made
outside his chain of command.”); see also
Platt v. Inc. Vill. of Southampton, 391 F.
App’x 62, 64 (2d Cir. 2010) (holding that “a
police officer speaking to a public official
about his concerns over public safety issues
is speaking in his capacity . . . as a police
officer,” and not as a citizen).
claim does not survive summary judgment,
the Court concludes, in its discretion, that
retaining jurisdiction over the state law cause
of action is unwarranted. See 28 U.S.C.
§ 1367(c)(3); United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966). “In the
interest of comity, the Second Circuit
instructs
that
‘absent
exceptional
circumstances,’ where federal claims can be
disposed of pursuant to Rule 12(b)(6) or
summary judgment grounds, courts should
‘abstain
from
exercising
pendent
jurisdiction.’” Birch v. Pioneer Credit
Recovery, Inc., No. 06-CV-6497T, 2007 WL
1703914, at *5 (W.D.N.Y. June 8, 2007)
(quoting Walker v. Time Life Films, Inc., 784
F.2d 44, 53 (2d Cir. 1986)).
***
For these reasons, the Court concludes, as
a matter of law, that neither plaintiff’s e-mails
nor the April 11, 2014 Letter are protected
speech under the First Amendment. As a
result, summary judgment is warranted in
defendants’ favor on plaintiff’s Section 1983
claim because plaintiff has failed to satisfy
the first prong of her prima facie retaliation
case. 6 See Sousa, 578 F.3d at 170.
Therefore, in the instant case, the Court
“‘decline[s] to exercise supplemental
jurisdiction’” over plaintiff’s state law claim
because “it ‘has dismissed all claims over
which it has original jurisdiction.’” Kolari v.
N.Y.-Presbyterian Hosp., 455 F.3d 118, 122
(2d Cir. 2006) (quoting 28 U.S.C.
§ 1367(c)(3)); see also Cave v. E. Meadow
Union Free Sch. Dist., 514 F.3d 240, 250 (2d
Cir. 2008) (“We have already found that the
district court lacks subject matter jurisdiction
over appellants’ federal claims. It would thus
be clearly inappropriate for the district court
to retain jurisdiction over the state law claims
when there is no basis for supplemental
jurisdiction.”); Karmel v. Claiborne, Inc.,
B. New York State Law Claim
Plaintiff also asserts a claim under New
York Civil Service Law § 75-b. Having
determined that the federal Section 1983
6
Because speech as an employee is not protected, the
Court need not determine whether plaintiff’s
correspondence involved a matter of public concern or
conduct the Pickering balancing analysis. See, e.g.,
Jackler, 658 F.3d at 237 (“If the employee did not
speak as a citizen, the speech is not protected by the
First Amendment, and no Pickering balancing analysis
is required.”).
evidence that the defendants were aware of the April
11, 2014 Letter prior to plaintiff’s May 2, 2014
placement on home leave because it is undisputed that
(1) plaintiff sent that correspondence to an address not
associated with any District property; and (2) there is
no documentary support for her contention that she emailed a copy to the District. In addition, defendants
contend that the investigation of plaintiff constituted
an intervening cause sufficient to break the link
between the April 11, 2014 Letter and the alleged
retaliation. However, because the Court has already
determined that the April 11, 2014 Letter is not
protected speech, it need not, and does not, address
these arguments.
Similarly, defendants argue that summary judgment is
warranted on the ground that there is no causal
connection between the April 11, 2014 Letter and the
decision to place plaintiff on home leave and issue the
Counseling Memo. They assert that there is no
14
Stephen Smith of Silverman and Associates,
445 Hamilton Avenue, Suite 1102, White
Plains, New York 10601.
No. 99-CV-3608, 2002 WL 1561126, at *4
(S.D.N.Y. July 15, 2002) (“Where a court is
reluctant
to
exercise
supplemental
jurisdiction because of one of the reasons put
forth by § 1367(c), or when the interests of
judicial economy, convenience, comity and
fairness to litigants are not violated by
refusing to entertain matters of state law, it
should decline supplemental jurisdiction and
allow the plaintiff to decide whether or not to
pursue the matter in state court.”).
Thus, pursuant to 28 U.S.C. § 1367(c)(3),
the Court declines to retain jurisdiction over
the remaining state law claim given the
absence of any federal claim that survives
summary judgment, and it dismisses
plaintiff’s state law claim without prejudice
to re-filing in state court.
IV. CONCLUSION
For the reasons set forth herein,
defendants’ motion for summary judgment is
granted with respect to plaintiff’s Section
1983 claim, and the Court declines, in its
discretion, to exercise supplemental
jurisdiction over plaintiff’s New York state
law claim, which it dismisses without
prejudice to re-filing in state court. The Clerk
of the Court shall enter judgment accordingly
and close this case.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated: June 5, 2017
Central Islip, New York
***
Plaintiff is represented by Alan E. Wolin of
Wolin & Wolin, Esqs., 420 Jericho Turnpike
Suite 215, Jericho, New York 11753.
Defendants are represented by Gerald
15
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