Rausa v. The Board of Education of the North Syracuse Central School District et al
DECISION AND ORDER granting Defendants' 31 Motion for Summary Judgment, denying Plaintiff's 32 Cross-Motion for Summary Judgment and dismissing the Plaintiff's Complaint. Signed by Senior Judge Thomas J. McAvoy on 5/8/2013. (amt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THE BOARD OF EDUCATION OF THE
NORTH SYRACUSE CENTRAL SCHOOL
DISTRICT and STEVEN WOLF, Principal
of Roxboro Middle School,
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff Danielle Rausa commenced the instant action against Defendants Board of
Education of the North Syracuse Central School District (the “District”) and Steven Wolf,
asserting claims of gender-based discrimination and retaliation under Title VII, the New York
State Human Rights Law (“HRL”), and the Fourteenth Amendment; a violation of her
Fourteenth Amendment rights to due process of law; a violation of New York Education Law
§ 3020-a; and prima facie tort and the intentional infliction of emotional distress. Presently
before the Court is Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56
seeking dismissal of the Amended Complaint in its entirety and Plaintiff’s motion for summary
judgment on her due process claim.
Plaintiff commenced working for the District in 1997. Plaintiff initially worked at
Smith Road Elementary School. In April 2000, Plaintiff was granted tenure in Music
Education. Starting in June 2002, Plaintiff was assigned to the Roxboro Middle School
(“Roxboro”) as an instrumental and vocal music teacher.
Defendant Steven Wolf became principal of Roxboro in January 2008. Before Wolf
became principal, Plaintiff had never received a reprimand.1 On February 12, 2008, then
Assistant Principal Ellen Hardy held a meeting of the music department to discuss scheduling
issues. Wolf was not at the meeting. According to Hardy, Plaintiff became angry and acted
inappropriately. Plaintiff, on the other hand, claims that Hardy acted inappropriately and
declined to let Plaintiff leave to return to her teaching duties. In conjunction with Director of
Human Resources, Annette Speach, Hardy issued Plaintiff a counseling memorandum for
her behavior at the meeting.2
David Morton had District-wide responsibility for the District’s music and other fine
arts programs. In Spring 2008, Morton recommended that Plaintiff be removed from an
instrumental position to a classroom music/chorus position for the 2008-09 school year.3
In February 2002, Plaintiff did receive a memo from the principal of Smith Road Elementary
School concerning Plaintiff’s “professional cooperation.”
Plaintiff claims that, as Hardy’s boss, Wolf must have been involved in the decision to issue the
counseling memorandum. Although Wolf was present at a meeting involving the incident (the
“Weingarten meeting”), there is no evidence that Wolf had any involvement in the decision to issue the
counseling memorandum or its contents.
Plaintiff believes that this recommendation was initiated by music teacher Mark Bossert who
allegedly told Morton that Plaintiff was difficult to work with, too aggressive in her teaching, and had no
business teaching instrumental music because she was a vocalist.
Wolf and Speach accepted this recommendation.4 Plaintiff was advised of the decision in
April 2008. Plaintiff claims that Wolf “massaged”5 the building and put Patrick Wallace in the
instrumental position despite his lack of prior instrumental teaching experience in the District.
Plaintiff further asserts that she was the only person who was moved out of her position.
In May 2008, Plaintiff had a conversation with music teacher Mark Bossert. The
subject of this conversation apparently concerned Bossert’s purported conversation with
Morton concerning Plaintiff’s ability to teach instrumental music. Bossert complained to the
District concerning Plaintiff’s behavior during the conversation. Bossert alleged that Plaintiff
intimidated him and accused him of orchestrating her move to the classroom music/chorus
position. Plaintiff “believe[s] that this confrontation with Mr. Bossert and the one before with
Mr. Wallace, started because Mr. Wolf was the new principal and he showed favoritism
toward these male staff members and was also giving them the ‘right’ to speak to [her] and
treat [her] any way they wanted. . . .” Pl. Aff. at ¶ 15. Director of Human Resources, Annette
Speach, investigated the matter. Speach issued a letter to Plaintiff advising that there would
be a meeting to discuss the incident and that she had the right to union representation at the
meeting. After the meeting, Speach determined to credit Bossert’s version of the incident
and issued Plaintiff a counseling memorandum dated June 25, 2008. Bossert was not
issued a counseling memorandum.
According to Wolf, this decision was made because Plaintiff was a talented vocalist who sang
professionally and the new instrumental teacher, Patrick Wallace, had an impressive instrumental
background in a military band. Plaintiff, on the other hand, claims that this decision was made without
any investigation into the relative instrumental abilities of Plaintiff and Wallace. Plaintiff further claims that
Wallace had no prior instrumental teaching experience.
A “massage” refers to the practice of involuntarily reassigning tenured teachers within their
tenure area within the same building. An example would be assigning an elementary school teacher to
teach first grade one year and third grade the next, or having a math teacher teach geometry one year
and algebra another year.
Plaintiff took over the chorus at the start of the 2008-09 school year. At that time
the configuration of the chorus was changed from a combined 6th and 7th grade chorus to a
7th grade only chorus. Plaintiff was responsible for the 7th grade students. The 6th grade
students went to the other chorus teacher, Ms. Launt. In September 2008, Plaintiff and
Launt met to discuss the creation of a “select chorus.” According to Plaintiff, this was in
furtherance of Morton’s directive that they do whatever was needed to build the vocal
program. An after school meeting with the students was planned in September 2008 to
announce, among other things, the select chorus. Wolf canceled the meeting because of
concerns he had. According to Wolf, he did not want the meeting to go forward until he was
able to confer with Morton whether a select chorus would be permitted. Ultimately, Morton
determined that a select chorus was educationally inappropriate for the middle school level.
Thus, on September 22, 2009, Wolf advised Plaintiff and Launt that a select chorus would
not be permitted. This was followed by a memorandum dated September 29, 2008.
Thereafter, it came to the District’s attention that flyers advertising the select chorus
had been distributed to students. The flyer stated, among other things, that “[t]his is NOT like
your other chorus experiences - You’ll have a great time!” Wolf believed that the flyer
inappropriately suggested that the prior chorus teacher’s chorus had not been fun. Wolf also
believed that the distribution of the flyers was in contravention of the determination not to
have a select chorus. Plaintiff admits having the flyers stacked in her classroom, but denies
having distributed them. Plaintiff also claims that the disputed sentence in the flyer was not
intended as a criticism of the prior chorus teacher, but to highlight the different nature of the
chorus in that it would be unique and potentially include jazz or show songs. In October
2008, in consultation with Speach, Wolf issued Plaintiff a counseling memorandum. The
memorandum addressed the issue concerning the chorus and several other matters.
Another counseling memorandum was issued in November 2008, which basically repeated
the contents of the October 2008 memorandum.
In February 2009, the teachers in the music department requested a meeting
involving them, building administration, and the union. Present at the meeting were Wolf,
Bossert, Wallace, Sylvia Matousek, Kristen Kopf, Sue Berti, and Stan Finkle. Meeting notes
demonstrate that the subject of the meeting was to discuss concerns the music department
staff had about Plaintiff.
Plaintiff also complains that Wolf prohibited her from running the soundboard
during concert performances, a function she handled for seven years prior to Wolf becoming
principal. Wolf mostly ignored Plaintiff’s pleas to run the soundboard. In the Spring of 2010,
the District hired a professional sound person to handle the sound for the school’s
Plaintiff also was the director of the drama club, a position which she held
continuously from 2003 forward. As such, she was responsible for supervising the drama
club students. During a drama club rehearsal, a male student engaged in sexually
inappropriate behavior toward female students. The female students complained to the
District. The matter was reported to the Sheriff’s Department, which conducted a criminal
investigation.6 Approximately one week after the female students complained of the
inappropriate conduct, Plaintiff left the building during a drama cub rehearsal.
Plaintiff notes that the Sheriff’s Department report “does not state anywhere that the conduct
occurred because I failed to appropriately supervise the students.” Pl. Aff. at ¶ 30.
Speach met with Plaintiff and her union representative to discuss the abuse that
occurred during the drama club rehearsal, Plaintiff’s having left the building during rehearsal,
and Plaintiff’s failure to enter grades for the third marking period of the 2008-09 school year.
Speach conferred with then Superintendent Jerome Melvin, after which it was determined
that Plaintiff should be disciplined. Speach and Melvin decided to recommend to the Board
of Education that charges be brought against Plaintiff pursuant to N.Y. Educ. Law § 3020-a.
Prior to serving the charges, Speach offered Plaintiff a three day suspension in lieu of formal
§ 3020-a proceedings. Plaintiff declined the offer.
In June 2009, the District served § 3020-a charges against Plaintiff. The charges
consisted of three sets of charges and sought a maximum penalty of a thirty day suspension.
In June 2009, Plaintiff claimed that her grade book went missing. On June 12, 2009, Plaintiff
and Wolf were scheduled to discuss Plaintiff’s year-end summary (“YES”) report for the
2008-09 school year. Wolf canceled the meeting and sought to reschedule it during the
summer of 2009.
Plaintiff posted on her Facebook page that “[i]f there is any justice in this world . . .
and I do believe there is - Wolfie picked the WRONG person to mess with!!!! Oh, yeah – it’s
ON!!!” Wolf’s secretary, who was “friends” with Plaintiff on Facebook, showed the posting to
Wolf. Plaintiff believes that Wolf compelled his secretary to show him the Facebook posting.
In September 2009, Plaintiff served a thirty day unpaid suspension pursuant to the
§ 3020-a charges levied against her. She returned to work in October 20, 2009. While
Plaintiff was serving her suspension, the District issued an amended set of charges, including
a fourth charge for failure to enter grades for certain students in the second quarter of the
2008-09 school year. The new charges did not seek an increased penalty. After Plaintiff
returned from her suspension, she was never again issued a counseling memo and did not
receive any further discipline.
In June 2010, Plaintiff and the District entered into a settlement agreement
concerning the § 3020-a matter. The settlement consisted of Plaintiff admitting to one of the
charges, the charges would remain in her file, and the penalty would be reduced to a five day
suspension. Plaintiff was reimbursed for twenty-five days of work.
In January 2010, Plaintiff was asked to attend a meeting concerning an incident
where she was accused of having hung up on Wolf’s secretary. No further action was taken
concerning this incident.
In the 2010-11 school year, Wallace’s teaching schedule was changed to
accommodate his administrative internship, which Plaintiff claims shows favoritism towards
As a result of the foregoing, Plaintiff commenced the instant action claiming that
Defendants: (1) engaged in discrimination in violation of Title VII; (2) permitted a hostile work
environment in violation of Title VII; (3) treated Plaintiff disparately from similarly situated
male employees in violation of Title VII; (4) retaliated against Plaintiff for engaging in
protected activity; (5) discriminated against Plaintiff in violation of 42 U.S.C. § 1983; (6)
violated Plaintiff’s rights as guaranteed by the Equal Protection Clause of the Fourteenth
Amendment; (7) deprived Plaintiff of her rights without due process of law, in violation of the
Fifth and Fourteenth Amendments; (8) discriminated against Plaintiff in violation of the New
York Human Rights Law; (9) retaliated against Plaintiff in violation of the New York Human
Rights Law; (10) Defendant Wolf aided and abetted violations of the Human Rights Law; (11)
violated New York State Education Law § 3020-s; (12) intentionally caused emotional
distress; and (13) engaged in prima facie tortious conduct. Defendants previously moved to
dismiss the Amended Complaint. The Court granted the motion in part, dismissing the
the disparate treatment claims under Title VII and the Fourteenth
the Human Rights claims against the District;
the individual claims against Wolf under Title VII;
the retaliation claims;
the due process claims with respect to the reprimands, Plaintiff’s
reputation, and the § 3020-a charges;
the claim pursuant to § 3020-a;
the intentional infliction of emotional distress claim; and
the prima facie tort claim.
The remaining claims are for a hostile work environment in violation of Title VII and
42 U.S.C. § 1983, a violation of her rights as protected by the due process clause because
she was not provided a pre-suspension hearing before being suspended without pay, and an
aiding and abetting claim under the New York Human Rights Law. Presently before the
Court is Defendants’ motion for summary judgment seeking dismissal of the remaining
claims and Plaintiff’s motion for summary judgment on the due process claim.
STANDARD OF REVIEW
The parties move for summary judgment pursuant to Rule 56. It is well settled that,
on a motion for summary judgment, the Court must construe the evidence in the light most
favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.
1999), and may grant summary judgment only where "there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). An issue is genuine if the relevant evidence is such that a reasonable jury could return
a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A
party seeking summary judgment bears the burden of informing the court of the basis for the
motion and of identifying those portions of the record that the moving party believes
demonstrate the absence of a genuine issue of material fact as to a dispositive issue.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima
facie basis for summary judgment, the burden of production shifts to the party opposing
summary judgment who must produce evidence establishing the existence of a factual
dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported
motion for summary judgment may not rest upon "mere allegations or denials" asserted in his
pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on
conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998).
With these standards in mind, the Court will address the pending motions.
Title VII/New York Human Rights Law/§ 1983
Whether Defendant’s Actions were Gender-Based
In the Court’s prior Decision and Order, familiarity with which is assume, the Court
listed many of the acts Plaintiff claims comprised a hostile work environment. Defendants
move for summary judgment on the ground that there is insufficient evidence from which it
reasonably can be concluded that their actions or conduct towards Plaintiff were on account
of her gender. In support, Defendants note that there are no allegations of sexual
comments, inappropriate touching, derogatory comments concerning Plaintiff’s gender, or
any other conduct from which it reasonably can be inferred that their actions were on account
of Plaintiff’s gender. Defendants support their claim by noting that most of the decisions
affecting Plaintiff involved both male and female administrators, Wolf (who is the individual
alleged to have been motivated by Plaintiff’s gender) was rarely the sole decision-maker,
female co-workers complained about Plaintiff, and Plaintiff is unable to demonstrate that
Plaintiff was treated differently from similarly situated male employees. Plaintiff responds by
referencing to the list set forth in the Court’s prior decision and order and by asserting that
there is evidence of favoritism of male colleagues and, in particular, the “boys’ club,” thereby
demonstrating gender-based motive and that there are numerous incidents where she was
treated differently than male employees. Plaintiff claims that evidence of disparate treatment
is sufficient to demonstrate gender-based motive. Plaintiff also asserts that the evidence
demonstrates an animus towards her.
Plaintiff correctly notes that “[a] showing of disparate treatment - that is, a showing
that the employer treated plaintiff less favorably than a similarly situated employee outside
[her] protected group - is a recognized method of raising an inference of discrimination for
purposes of making out a prima facie case.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379
(2d Cir. 2003) (internal quotation and citation omitted). “A plaintiff relying on disparate
treatment evidence must show she was similarly situated in all material respects to the
individuals with whom she seeks to compare herself.” Id. Upon consideration of the record
evidence, the Court finds that there is insufficient evidence upon which a fair minded trier of
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fact could reasonably conclude that Plaintiff was treated differently than similarly situated
male employees or that she was otherwise discriminated against on account of her gender.
While there are instances in the record where Plaintiff was treated differently than
male employees, none of those instances, individually or in combination, reasonably suggest
that Defendants’ actions were on account of Plaintiff’s gender. Rather, they represent
isolated incidences in which Plaintiff was simply unhappy with the outcome or disagreed with
the decision. In each instance, Defendants articulated legitimate, non-discriminatory reasons
for their behavior and Plaintiff was unable to point to anything else demonstrating pretext or
reasonably suggesting that her gender was a motivating factor. See De la Cruz v. City of
New York, 783 F. Supp.2d 622, 645 (S.D.N.Y. 2011) (applying the McDonnell Douglas Corp.
v. Green, 93 S. Ct. 1817 (1973), burden shifting analysis to a hostile work environment
claim). Even considering the number of such instances together, they are insufficient under
the facts and circumstances of this case, to suggest a gender-based motivation. Moreover,
as the Court stated in its March 21, 2012 Decision and Order, familiarity with which is
assumed, many of the incidents on Plaintiff’s long list of items she claims are suggestive of a
hostile work environment are simply unrelated to gender on their face. There is insufficient
evidence - either direct or circumstantial - evidencing an unlawful motive for Defendants’
For example, Plaintiff claims that, in February 2008, she received a counseling
memorandum arising out of the music department meeting, but that Wallace did not.7
In its prior decision, the Court held that any discrete incidents of discrimination that occurred
prior to June 15, 2010 are time-barred. Although this is a discrete incident that, by itself, would be timebarred, discrete acts of discrimination may constitute evidence of a hostile work environment. Petrosino
v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir. 2004); Patresi v. New York State Unified Court Sys., 2010 WL
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Assuming this to be true, this is not evidence of gender-based motive. According to Plaintiff,
it is Wolf who acted on account of Plaintiff’s gender. See Pl. Aff. at ¶¶ 2, 4, 11, 15, 21, 22,
23, 24, 28, 29, etc. The undisputed evidence, however, is that Hardy and Speach together
made the determination to issue the February 2008 counseling memorandum to Plaintiff.
There is no evidence that Wolf counseled, approved, or was otherwise involved in the
issuance of the counseling memorandum. The fact that Wolf was Hardy’s boss or that he
was present at the Weingarten meeting preceding the issuance of the counseling
memorandum is, without more, insufficient to suggest that the counseling memorandum was
issued with his imprimatur or otherwise on account of Plaintiff’s gender.
As another example, Plaintiff also complains of Defendants’ decision to switch
Plaintiff to the chorus and Wallace (who is male) to instrumental teaching.8 The proffered
reason - that Plaintiff was an accomplished, professional vocalist and Wallace was an
accomplished instrumentalist - is a legitimate, non-discriminatory decision. Plaintiff points to
nothing showing that gender had anything to do with this decision. Moreover, the evidence
demonstrates that, although Wolf approved the change, this decision originated not with
Wolf, but Morton. Nothing about this incident is suggestive of gender-based discrimination.
In June 2008, Defendants issued a counseling memorandum to Plaintiff arising out
of her conversation with music teacher Mark Bossert.9 Plaintiff was issued a counseling
3781961, at *2 (E.D.N.Y. 2010); Urmey v. AT&T Corp., 2006 WL 2819627, at *2 (S.D.N.Y. 2006).
This is another discrete, time-barred incident that is being considered only as evidence in
support of a hostile work environment claim. See n.1 supra.
This is another discrete, time-barred incident that is being considered only as evidence in
support of a hostile work environment claim. See n.1 supra.
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memorandum, but Bossert was not. This is not evidence of gender-based discrimination.
The matter was investigated by Speach (not Wolf), who made the decision to credit Bossert’s
version of the events and issue the counseling memorandum to Plaintiff. Nowhere is it
claimed that Speach acted on account of Plaintiff’s gender or that Wolf was otherwise
involved and there is insufficient evidence in the record to substantiate such a claim.10
Defendants were free to credit Bossert’s version of the events in light of the facts surrounding
the incident. See Speach Aff. at ¶ 19.
Plaintiff lists the events concerning the 6th and 7th grade chorus as evidence in
support of her hostile work environment claim. Nothing about the facts of the chorus suggest
gender-based motivation. The decision to split the chorus into 6th and 7th grade affected two
female teachers. It is unclear how Defendants’ actions concerning the select chorus
(including the decision not to allow the select chorus and/or to counsel Plaintiff concerning
her flyers) relate to Plaintiff’s gender. Plaintiff does not identify any similarly situated males
sufficient to reasonably give rise to an inference of gender-based discrimination. Further,
Plaintiff concedes that she was disciplined concerning the flyers but that Robyn Launt (a
female teacher who co-authored the flyer) was not. While this may evidence animus towards
Plaintiff personally, it does not support a claim of gender-based discrimination.
With respect to the drama club incident, by Plaintiff’s own admission, there were
other female teachers present that were not disciplined. Thus, nothing about this incident
suggests gender-based discrimination.
Plaintiff claims that, during the conversation, Bossert stated “should I bring a gun” and was not
reprimanded for making this comment. This claim is not relevant because Speach handled this matter
and there is insufficient evidence suggesting that any of Speach’s actions towards Plaintiff were on
account of her gender and Plaintiff does not argue otherwise..
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Plaintiff relates an incident concerning inappropriate sexual conduct between
students occurring on the school hallways and on the bus and the bus driver not being
disciplined. As Defendants point out, there is no record evidence, admissible in form,
substantiating the alleged bus incident. With respect to the hallways, there is no evidence
concerning whether the persons responsible for monitoring the hallways were male, female,
Plaintiff alleges that Wallace received favoritism in teaching assignments because
his schedule was modified to accommodate an administrative internship. This is not
indicative of gender-based motive because the record evidence demonstrates that female
teachers, too, received changes in their teaching schedules to accommodate administrative
Plaintiff also claims that she was treated differently from Bossert because he
“received blatant leniency with regards to the [counseling memorandum] - not suspension or
§ 3020-a charges - he received concerning his failure to supervise two of his students who
were found having sexual intercourse in his band room.” Pl. Mem. of Law at 11. Of course,
Plaintiff was the subject of § 3020-a charges. This incident does not evidence similarly
situated persons because the § 3020-a charges issued to Plaintiff were not limited to the
drama club incident, but also included Plaintiff’s having left the building during the drama club
rehearsal, failing to enter grades for the third quarter of the 2008-2009 school year, and
violating the staff code of conduct. There is no evidence that Bossert similarly left the
building, failed to enter grades and/or otherwise violated the staff code of conduct.
Plaintiff also claims that Gary Lipp brought his children to school in violation of
school policy, but did not receive any discipline. Plaintiff then asserts that if she had brought
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her children to school, she would have been disciplined. This is speculative and not
evidence of gender-based discrimination.
Although the Court has not specifically listed each of Plaintiff’s claims, it has
reviewed them all and finds that, for reasons similar to those discussed above, they are
insufficient to reasonably permit the conclusion that Defendants’ actions were taken on
account of Plaintiff’s gender. Plaintiff offers insufficient evidence, admissible in form, from
which a fair minded trier of fact could reasonably conclude that Defendants’ actions were
taken on account of her gender.
Moreover, as stated in the Court’s prior decision and order in this matter, Title VII is
intended to eliminate unlawful employment practices; not impose a general civility code.
See Tepperwien v. Entergy Nuclear Operations, Inc., 63 F.3d 556, 568 (2d Cir. 2011). The
conduct must be sufficiently severe and/or pervasive to create an objectively hostile or
abusive work environment. Courts review the totality of the circumstances, including the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance. McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 79 (2d Cir.
2010). Although Plaintiff disagrees with the basis for many of the actions taken against her
and feels she was wronged, the vast majority of incidents listed by Plaintiff (even when take
in conjunction with all other events) are mere workplace annoyances, petty slights, general
disagreements, lack of good manners, and problems that constitute minor incidents and
trivial harms that are insufficient to withstand summary judgment. They are insufficient, from
an objective standpoint, to demonstrate sufficiently severe conduct on account of gender.
Accordingly, the Title VII, Human Rights Law, and § 1983 claims are DISMISSED.
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Defendants’ move to dismiss Plaintiff’s due process claim and Plaintiff moves for
summary judgment in her favor on that claim. The relevant facts pertinent to this claim are
as follows. On June 16, 2009, Plaintiff was served with the § 3020-a charges. Plaintiff was
suspended without pay for thirty days commencing on September 8, 2009. At the
commencement of the § 3020-a hearing, the parties entered into a settlement agreement.
The Settlement Agreement provided, in pertinent part, as follows:
In Full settlement of the pending 3020-a matter of the North Syracuse School
District against Danielle Rausa. . . the undersigned agree to the following:
- Ms. Rausa admits to the conduct as contained in charge TWO, and denies all
- The amount of the suspension shall be reduced from 30 days to five days and the
money to be refunded to Ms. Rausa shall be issued within 30 days of the day of the
- Ms. Rausa will have 10 days from the date of this Settlement Agreement to issue
a concise response to the memos in her file related to the charges. . . .
- No General Release is required by the School District. . . .
This Agreement is not a waiver of either party’s right to commence an action for
any relief not specifically addressed herein. . . .
Am. Compl. at Ex C.
Plaintiff claims that being suspended without pay for thirty days without any prior hearing or
opportunity to be heard violated her right to due process of law. Defendants respond that:
Plaintiff (1) waived her due process rights through the collective bargaining agreement; (2)
waived her due process rights through the settlement agreement; and (3) received all
process that is due.
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As the Court previously held, because Plaintiff was a tenured teacher, she had
rights guaranteed by New York State Education Law § 3020-a. That section “provides the
exclusive method of disciplining a tenured teacher in New York State.” Tebordo v. Cold
Spring Harbor Cent. Sch. Dist., 126 A.D.2d 542, 510 N.Y.S.2d 665 (2d Dept. 1987). “Under
the statute, a tenured teacher is entitled to a due process hearing prior to the imposition of a .
. . suspension for a fixed time without pay. . . .” Id. (quoting Educ. Law § 3020-a(4)). Indeed,
given the significance of receiving salary, a tenured teacher may be entitled to a predeprivation hearing before having her pay suspended. McCreery v. Babylon Union Free Sch.
Dist., 827 F. Supp. 136, 139 (E.D.N.Y. 1993).
Assuming principles of due process entitled Plaintiff to a pre-deprivation hearing,11
Plaintiff waived these rights. Important constitutional protections, including those under the
due process clause, may be waived. Collins v. Foreman, 729 F.2d 108, 120 (2d Cir. 1984)
(“to the extent that litigants may have a due process right to appear before an Article III judge
in a civil case, they may freely waive that right.”); see Ciambriello v. County of Nassau, 292
F.3d 307, 322-23 (2d Cir. 2002); United States v. Local 1804-1, Intern. Longshoreman’s
For the reasons to be discussed infra, the Court need not definitively decide whether the
Fourteenth Amendment guarantees Plaintiff the right to continue pay during a suspension. Whether this
is a matter of constitutional protection is subject to debate. The New York Court of Appeals has held that
while “section 3020-a as now worded does not authorize withholding of pay during a period of
suspension,” “suspension of a tenured teacher without pay pending the final determination of section
3020-a disciplinary proceedings, provided such determination is not unreasonably delayed, would involve
no infringement of the teacher’s constitutional rights.” Matter of Jerry v. Bd. of Educ. of City School Dist.
of City of Syracuse, 35 N.Y.2d 534, 541 (1974). At least one court in this District has noted that “even if
there has been a violation of New York Education Law § 3020-a, there has been no violation of the
Fourteenth Amendment’s Due Process Clause if sufficient post-deprivation process is given within a
reasonable time.” Myers v. Camden Cen. Sch. Dist., 2012 WL 2921574, at *11 (N.D.N.Y. 2012)
(Suddaby, J.). The Myers court stated that “the violation of a state statute (including its procedural
requirement) does not, in and of itself, mean that there has been a violation of the Constitution (including
denial of what process was due under the Fourteenth Amendment).” Id. at * 6; see also id. at n.4. It,
therefore, is questionable whether the right to continued pay during § 3020-a proceedings gives rise to a
protected property interest.
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Ass’n, AFL-CIO, 44 F.3d 1091, 1098 n.4 (2d Cir. 1995); Chaney v. Suburban Bus Div. of
Regional Transp. Auth., 52 F.3d 623, 630 (7th Cir. 1995) (“A union might bargain away its
members' pre-deprivation rights for something else or waive them for some reason. . . .”).
The New York Court of Appeals expressly held that rights under § 3020-a may be waived.
See Feinerman v. Board of Co-op. Educ. Servs. of Nassau County, 48 N.Y.2d 491, 497
(1979);12 Abramavich v. Bd. of Ed. of Central Sch. Dist. No. 1 of Towns of Brookhaven and
Smithtown, 46 N.Y.2d 450 (1979). Section 3020 (which references the procedures set forth
in § 3020-a) expressly recognizes the possibility of waiver with respect to contracts
negotiated between "the city school district of the city of New York and any employee
organization representing employees or titles that are or were covered by any memorandum
of agreement executed by such city school district and the united federation of teachers. . . ."
§ 3020(4). While it may be argued that the statutory availability of waiver to the New York
City school district precludes a waiver for other school districts, the statute does not so
provide. See Abramovich, 46 N.Y.2d at 455 (“we first observe that the statute contains no
express provision preventing a teacher from waiving its benefits.”). Prior to the 2004
amendment of the statute, the New York Court of Appeals held that § 3020-a’s protections
could be waived through collective bargaining agreements. Had the legislature intended to
end the availability of that practice, it would have expressly done so. Indeed, as the parties’
settlement agreement in satisfaction of the § 3020-a charges demonstrates, Plaintiff chose to
(“In Abramovich, we held that a tenured teacher could waive the protections afforded by section
3020-a of the Education Law if such waiver was freely, knowingly and openly made. Although
recognizing that this section is grounded in strong public policy considerations in that it safeguards
tenured teachers from official or bureaucratic caprice by delineating a method whereby tenured teachers
are to be removed, this court nevertheless concluded ‘that section 3020-a is not so sacrosanct as to be
impervious to waiver.’”).
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waive her right to a hearing under § 3020-a and she does not argue that such a waiver is
invalid. See Pollock v. Kiryas Joel Union Free Sch. Dist., 52 A.D.3d 722, 724 (a tenured
teacher may forfeit the protections pursuant to Education Law § 3020-a “only if that
settlement is shown to be have been voluntary and noncoerced.”).
As noted, the waiver of these rights may be accomplished through a collective
bargaining agreement. “Whatever [Plaintiff’s] procedural rights under state law, state courts
clearly hold that any such rights may be properly bargained away by a labor representative.”
Grandi v. New York City Transit Auth., 175 F.3d 1007 (2d Cir. 1999) (quoting Romano v.
Canuteson, 11 F.3d 1140, 1141 (2d Cir. 1993)); see Board of Ed. of City of Rochester v.
Nyquist, 48 N.Y.2d 97 (1979) (holding that “a provision for a payless suspension may
properly be a term of a negotiated agreement.”). In Matter of Winter v. Bd. of Educ. for
Rhinebeck Cent. Sch. Dist., 79 N.Y.2d 1, 5 (1992), the New York Court of Appeals noted that
although compensation is a matter of substantive right, it can be taken away pursuant to
explicit statutory or collective bargaining authority. More recently, in Matter of Elmore v. Mills,
296 A.D.2d 704 (3d Dept. 2002), the Appellate Division, Third Department stated that
“[n]otwithstanding the provisions of Education Law § 3020-a(2)(b), a CBA may allow a school
district to suspend its teachers without pay as long as the agreement’s terms clearly
manifested the parties’ intent to do so.”13
Here, the collective bargaining agreement provides that:
In the event that any teacher is suspended pending a hearing on charges, such
suspension shall be without pay until the findings and recommendations on the
charges are determined.
§ 3020-a(2)(b) provides that, with certain exceptions, “[t]he suspension shall be with pay. . . .”
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This is a clear waiver of Plaintiff’s rights under § 3020-a.14 Accordingly, the due process
claim must be dismissed.
For the foregoing reasons, Defendants’ motion for summary judgment is
GRANTED, Plaintiff’s cross-motion for summary judgment is DENIED, and the Complaint is
DISMISSED. The Clerk of the Court shall close the file in this matter.
IT IS SO ORDERED.
Dated: May 8, 2013
Plaintiff argues that the Court’s ruling in connection with the motion to dismiss effectively
decided the due process claim in her favor. The Court disagrees. The Court made no ruling on the
merits of the due process claim. The prior decision simply held that Plaintiff alleged sufficient facts to
state a due process claim. Dkt. No. 23 at 18. While the Court’s dicta at footnote 7 may be read to
suggest that a collective bargaining agreement may not effectuate a waiver of a tenured teacher’s due
process rights, the Court did not so hold. The Court merely noted that: (i) Defendants argued that
Plaintiff’s rights were waived by the CBA; (ii) § 3020(4) expressly permits the procedures set forth in §
3020-a to be modified by a negotiated agreement involving the city school district of the city of New York
and an employee organization representing its employees; and (iii) after the New York Court of Appeals’s
decision in Nyquist, § 3020-a was amended to require suspensions with pay (subject to certain
exceptions not applicable here). The Court did not hold that the CBA cannot effectuate a waiver of
Plaintiff’s § 3020-a rights.
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