Maco v. Baldwin Union Free School District et al

Filing 55

MEMORANDUM AND ORDER granting 46 Motion for Summary Judgment. For the reasons stated herein, Defendants' motion for summary judgment is granted andPlaintiffs First Amendment retaliation claim is dismissed with prejudice. In addition, Plaintif fs state law defamation claim is dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c)(3). The Clerk of the Court is directed to enter judgment accordingly and to mark this action as closed. (Ordered by Judge Leonard D. Wexler on 4/13/2017.) (Fagan, Linda)

FILED
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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RHONDA MACO,

APR 13 2017

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LONG ISLAND OFFICE
MEMORANDUM AND ORDER

cv 15-3958

Plaintiff,
-against-

(Wexler, J.)

BALDWIN UNION FREE SCHOOL DISTRICT,
LORI A. PRESTI, and CARRIE BILITZKI,
Defendants.

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APPEARANCES:
FAMIGHETTI & WEINICK, PLLC
BY: MATTHEW WEINICK, ESQ.
Attorneys for Plaintiff
155 Pinelawn Road, Suite 220S
Melville, New York 11747
SILYERMAN & ASSOCIATES
BY: LEWIS R. SILVERMAN, ESQ.
GERALD S. SMITH, ESQ.
Attorneys for Defendants
445 Hamilton Avenue, Suite 1102
White Plains, New York 10601

WE)(LER, District Judge:
Before the Court is Defendants' motion for summary judgment, pursuant to Rule 56 of
the Federal Rules of Civil Procedure. Plaintiff opposes the motion. For the following reasons,
Defendants' motion is granted and Plaintiffs claims are dismissed.

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BACKGROUND
This is a civil rights action arising out of a report by Defendants to Child Protection
Services ("CPS") regarding Plaintiff's care ofher minor daughter. In June 2013, Plaintiff's
minor child, N.M., was a first-grade student at Steele Elementary School ("Steele"), which is
operated by Defendant Baldwin Union Free School District (the "District"). Defendant Lori
Presti ("Presti") is the Principal of Steele and Defendant Carrie Bilitzki ("Bilitzki") is Steele's
social worker. The relevant facts, which are largely undisputed, are taken from the parties' Local
Civil Rule 56.1 Statements, unless otherwise noted.
N.M. began attending Steele Elementary in 2011. While N.M. was in first grade, both
Presti and Bilitzki met with Plaintiff several times regarding N.M. 's behavior and emotional
well-being. In June 2013, Plaintiff and her husband met with Presti and Bilitzki concerning an
event that occurred with respect to N.M. During this meeting, Plaintiff complained about
Bilitzki's treatment ofher daughter at the School's Field Day on June 5, 2013. 1 (Weinick Decl.,
Ex. 4; Smith Decl., Ex. Eat 39-40.) While Presti disagreed with Plaintiff and her husband's
characterization of the events that led to the meeting, all parties considered the meeting cordial.
Ms. Maldonado ("Maldonado")- who is not named herein as a Defendant- was N.M.'s
second grade teacher during the 2013-2014 school year. N.M. had behavioral issues that were
addressed all throughout her second grade year.
On April8, 2014, Maldonado emailed Plaintiff twice, advising Plaintiff that N.M. was
1

N.M. had not been allowed to participate in Field Day as a form of punishment.
(Weinick Decl., Ex. 4; Smith Decl., Ex. Eat 34.) N.M. was the only child barred from
participating in Field Day and Plaintiff felt that Bilitzki intentionally humiliated N.M. by forcing
her to sit outside and watch the other children participate. (Weinick Decl., Ex. 4; Smith Decl.,
Ex. Eat 33-34.)
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feeling sad and depressed and recommending that "we all sit down to help her through this." 2
Maldonado further advised Plaintiff that N.M. was being "defiant" and had falsely accused
Maldonado ofhurting her.
Based upon the emails Plaintiff received, Plaintiff removed her daughter from school at
lunch time on April8, 2014, representing that N.M. had an appointment to attend. 3 Plaintiff
brought N.M. home that day and discussed her behavior with her. In addition, Plaintiff struck
N.M. with both her hand and a belt. While Plaintiff does not recall how many times she struck
N.M. with her hand, she believes it was more than once. Plaintiff further believes that she struck
N.M. with the belt once or twice. This was not the first time Plaintiff physically disciplined her
daughter. Plaintiff then returned N.M. to school.
When N.M. returned to school, she informed Maldonado that Plaintiff struck her with a
belt in the face during lunch. Upon learning this information, Maldonado contacted the School
Nurse. Thereafter, Presti spoke with N.M., who advised Presti that Plaintiff struck her repeatedly
with a belt and her hand. Presti also had the School Nurse examine N.M., which revealed no
marks or injuries.
Presti then spoke with Bilitizki about what had occurred. Bilitizki informed her that,
based upon the information they had, a report should be made to CPS. At approximately 1:51
p.m. on April 8, 2014, a report was made to CPS concerning Plaintiff and N .M. via telephone

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Maldonado had previously sent Plaintiff emails recommending that N.M. meet with the
School Psychologist.
3

There was not, in fact, any appointment. Rather, Plaintiff took N.M. directly home.
(Smith Decl., Ex. Eat 24-25.)
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call. 4 The issue of suspected physical abuse was raised with CPS at that time, as well as the fact
that counseling had been previously recommended for N .M. to address her behavioral issues. 5
On April 9, 2014, CPS contacted Bilitzki and asked her to check with N.M. 's teacher to
see if she was completing homework assignments and projects. CPS also requested that Bilitizki
fax copies of progress reports and report cards. Bilitzki advised CPS that N.M. had missed eight
homework assignments since January and that her grades had declined in homework and
neatness. The report card provided to CPS by Bilitzki also indicated that some ofN.M.'s grades
had dropped recently and that the issue of incomplete homework assignments had been raised.
Thereafter, a CPS social worker met with and examined N.M. CPS also met with
Plaintiff and her husband, as well as Presti. On Apri129, 2014, the CPS investigation was closed
as "unfounded."
Plaintiff commenced the within action on July 7, 2015, asserting the following claims: (1)
First Amendment retaliation; (2) violation of her First and Fourteenth Amendment rights to
intimate association; (3) violation of her Fourteenth Amendment right to due process; (4)
intentional infliction of emotional distress; (5) slander; and (6) municipal liability. Defendants
moved to dismiss Plaintiffs Complaint on February 16,2016. By Memorandum and Order
dated July 26, 2016, the Court denied Defendants' motion to dismiss with respect to Plaintiffs
claims for First Amendment retaliation and defamation. In all other respects, the motion was

4

There appears to be a dispute as to who from Defendants actually contacted CPS.
However, the evidence submitted indicates that Presti is the individual who made the telephone
call.
5

Although Plaintiffhad N.M. evaluated in 2011 and 2013, she never advised Presti,
Bilitzki or anyone else affiliated with Steele Elementary of these evaluations.
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granted.
Defendants now move for summary judgment with respect to Plaintiffs remaining
claims. Plaintiff opposes the motion in its entirety.

DISCUSSION
I.

Legal Standard
Summary judgment is appropriate when "there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The
burden is on the moving party to establish the lack of any factual issues. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The very language of this standard reveals that an otherwise
properly supported motion for summary judgment will not be defeated because of the mere
existence of some alleged factual dispute between the parties. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242,247 (1986). Rather, the requirement is that there be no "genuine issue of
material fact." Id. at 248.
The inferences to be drawn from the underlying facts are to be viewed in the light most
favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 588 (1986). When the moving party has carried its burden, the party opposing
summary judgment must do more than simply show that "there is some metaphysical doubt as to
the material facts." Id. at 586. In addition, the party opposing the motion "may not rest upon the
mere allegations or denials of his pleadings, but ... must set forth specific facts showing there is
a genuine issue for trial." Anderson, 477 U.S. at 248.
When considering a motion for summary judgment, the district court "must also be
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'mindful ofthe underlying standards and burdens of proof ... because the evidentiary burdens
that the respective parties will bear at trial guide district courts in their determination of summary
judgment motions." SEC v. Meltzer, 440 F. Supp. 2d 179, 187 (E.D.N.Y. 2006) (quoting Brady
v. Town of Colchester, 863 F.2d 205,211 (2d Cir. 1988)) (internal citations omitted). "Where
the non-moving party would bear the ultimate burden of proof on an issue at trial, the burden on
the moving party is satisfied if he can point to an absence of evidence to support an essential
element ofthe non-movant's claim." Meltzer, 440 F. Supp. 2d at 187.

II.

First Amendment Retaliation
In the Second Circuit, the harm or injury required to allege a First Amendment retaliation

claim varies depending on the factual context. See Zherka v. Amicone, 634 F.3d 642, 643 (2d
Cir. 2011). "'Private citizens alleging retaliation for their criticism of public officials"' are
generally required to show that 'they engaged in protected speech, persons acting under color of
state law took adverse action against them in retaliation for that speech, and the retaliation
resulted in actual chilling of their exercise of their constitutional right to free speech."' Vaher v.
Town ofOrangetown, 916 F. Supp. 2d 404,430 (S.D.N.Y. 2013) (quoting Zherka, 634 F.3d at
643). In other private citizen cases, however, the Second Circuit has dispensed with the
"chilling" requirement, where the retaliation is alleged to have caused an injury separate from
any chilling effect. See Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004) (holding that
"chilling" is only required in cases where a plaintiff states no harm independent of the chilling of
speech); see also Dorsett v. County ofNassau, 732 F.3d 157, 160 (2d Cir. 2013) ("Chilled speech
is not the sine qua non of a First Amendment claim. A plaintiffhas standing ifhe can show
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either that his speech has been adversely affected by the ... retaliation ... or that he has suffered
some other concrete harm."). Defendants argue that Plaintiff has failed to demonstrate the
second and third prongs of a First Amendment retaliation claim - that Defendants took adverse
action against her in retaliation for her speech and that Defendants' actions chilled the exercise of
Plaintiffs First Amendment right or caused her some other concrete harm.
With respect to the second element of a First Amendment retaliation claim, "[e]vidence
of improper motive 'may include expressions by the officials regarding their state of mind,
circumstances suggesting in a substantial fashion that the plaintiff has been singled out, or the
highly unusual nature of the actions taken."' Anderson v. City ofN.Y., 817 F. Supp. 2d 77, 96
(E.D.N.Y. 2011) (quoting Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995)). Plaintiffhas failed
to offer any evidence to sustain this element.
Under New York's Social Services Law, Presti and Bilitzki are considered "mandatory
reporters," which means they are required to notify CPS of suspected child abuse. See N.Y. Soc.
Serv. Law§ 413(1)(a); see also Oglesby v. Eikszta, 499 Fed. App'x 57, 60 (2d Cir. 2012). "In
that role, 'school officials receive immunity from liability whenever they report suspected abuse
in good faith, but they are exposed to liability if they willfully fail to do so."' Dole v. Huntington
Union Free Sch. Dist., No. 14-CV-1283, 2016 U.S. Dist. LEXIS 121498, at *14 (E.D.N.Y. Sept.
8, 2016) (quoting Oglesby, 499 Fed. App'x at 60). "Given this difficult statutory role imposed
upon teachers and school administrators, the Court must give 'unusual deference' to their
'decision to report reasonably suspected abuse and neglect."' Dole, 2016 U.S. Dist. LEXIS
121498, at *14 (quoting Oglesby, 499 Fed. App'x at 60).
Based on the evidence submitted, the Court finds that Defendants had reasonable cause to
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suspect that N.M. may have been physically abused. Moreover, there is no evidence to support
Plaintiffs claim that Defendants called CPS to retaliate against her for voicing complaints about
N.M. 's treatment on Field Day in June 2013. Plaintiff bases her claim on nothing more than
sheer speculation, which is insufficient to establish a First Amendment retaliation claim.
In addition, the meeting in which Plaintiff complained about Bilitzki' s treatment ofN.M.
on Field Day occurred in June 2013. Defendants did not contact CPS until April2014, almost
one year later. "[C]ourt in this Circuit have consistently held that a passage of more than two
months between the protected activity and the adverse ... action does not allow for an inference
of causation." Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486, 512 (E.D.N.Y. 2011)
(collecting cases). Here, the protected activity- Plaintiffs complaint about Bilitzki- is simply
too attenuated from the CPS complaint to support Plaintiffs claim that Defendants contacted
CPS in an effort to retaliate against her.
Finally, Plaintiff has failed to establish that she suffered any concrete harm as a result of
Defendants' contacting CPS. While Plaintiff alleges that her reputation and her standing in the
community have been damaged as a result of Defendants' complaint to CPS, she has failed to
adduce any evidence to support this claim. Rather, it is undisputed that Plaintiffs legal business
has not suffered in any way as a result of the CPS investigation. Nor can she identifY any
business opportunities that she has lost. Moreover, Plaintiff has not been denied the opportunity
to volunteer at any organizations since the CPS investigation. Nor has the school district
prohibited her from participating in the PTA or any class activities. Accordingly, Plaintiffhas
failed to establish that her speech has been chilled in any way or that she has suffered some other
concrete harm as a result of Defendants' actions.
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Based on the foregoing, the Court finds that there are no issues of material fact with
respect to Plaintiffs First Amendment retaliation claim that would warrant a jury trial.
Defendants are accordingly granted judgment as a matter of law with respect to Plaintiff's First
Amendment retaliation claim and the claim is dismissed with prejudice. 6

III.

Plaintiffs State Law Defamation Claim
Having found that Plaintiffs First Amendment retaliation fails as a matter oflaw, there is

no longer any independent basis for federal jurisdiction in the within action. Although the Court
has the discretion to exercise supplemental jurisdiction over plaintiffs remaining state law claim,
see 28 U.S.C. § 1367(a), it declines to do so. See 28 U.S.C. § 1367(c)(3) ("The district courts
may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has
dismissed all claims over which it has original jurisdiction .... "); Marcus v. AT&T Corp., 138
F.3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the
state claims should be dismissed as well.").
Accordingly, Plaintiffs defamation claim is dismissed without prejudice.

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Since the Court is granting summary judgment on the merits of Plaintiffs First
Amendment retaliation claim, it need not consider Defendants' arguments concerning qualified
immunity.
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CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is granted and
Plaintiffs First Amendment retaliation claim is dismissed with prejudice. In addition, Plaintiffs
state law defamation claim is dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
The Clerk of the Court is directed to enter judgment accordingly and to mark this action as
closed.

SO ORDERED:
Dated: Central Islip, New York
April _!L, 201 7

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LEONARD D. WEXLER
United States District Judge

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