Miller v. New York City Department of Education et al

Filing 22

MEMORANDUM AND ORDER. For the reasons stated above, the Court grants defendants' motion to dismiss. This Memorandum and Order resolves Docket No. 9, and the Clerk of the Court is respectfully directed to close this case. Granting 9 Motion to Dismiss. (Signed by Judge Naomi Reice Buchwald on 12/2/2014) Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
ADAM MILLER,
Plaintiff,
MEMORANDUM AND ORDER

-againstNEW YORK CITY DEPARTMENT OF EDUCATION,
OLGA LIVANIS, TINA YU, JULIA CUNNINGHAM,
KARED ROSOFF, AND BRENDAN ALFIERI,

13 Civ. 8114 (NRB)

Defendants.
-------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

Plaintiff Adam Miller (“Miller”) brings this action against
the New York City Department of Education (“DOE”), Olga Livanis,
Tina Yu, Julia Cunningham, Kared Rosoff, and Brendan Alfieri
(collectively the “defendants”).

Plaintiff alleges violations of

42 U.S.C. § 1983 and 42 U.S.C. § 1985(3).
to

dismiss

the

complaint

as

barred

by

Defendants have moved
Miller’s

waiver

in

a

Stipulation Agreement and for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).
herein, we grant the motion.

For the reasons stated

BACKGROUND
I.

Factual Background
Miller is a tenured New York City teacher, who began teaching

at the New Explorations into Science, Technology & Math (NEST+m)
school in August 2003.

Cmplt. ¶ 18.

Shortly before the start of

the 2006-2007 school year, defendant Olga Livanis was appointed as
principal of NEST+m.

Id. ¶ 20.

From the time of her arrival,

Livanis and Miller formed a contentious and hostile relationship,1
resulting

in

plaintiff

receiving

an

allegedly

unwarranted

“unsatisfactory” rating for the 2007-2008 school year.

Id. ¶ 28.

Upon receipt of the rating, Miller was told that he would
likely receive another “unsatisfactory” rating at the end of the
next school year if he chose to stay at NEST+m.
receipt

of

another

“unsatisfactory”

rating

Id. ¶ 30.
had

the

The

likely

consequence of sullying his teaching reputation and freezing his
annual salary.

Id. ¶ 29.

To avoid this outcome, Livanis offered

to remove the rating in exchange for Miller’s tender of a postdated resignation letter and agreement to transfer to another
school.

Id. ¶ 31.

Miller consented to this arrangement and

tendered a resignation letter, id. ¶ 32, but Livanis failed to
remove the negative rating from his record.

1

Id. ¶ 35.

When Miller

Livanis allegedly removed plaintiff from his position as Chair of the English
Department, reassigned him from teaching Advanced Placement English, refused
payment for additional classes and school activities she had him supervise, and
suspended the student newspaper that Miller founded and advised. Cmplt. ¶ 22.

2

subsequently attempted to rescind his resignation, Livanis denied
Miller’s attempts to return to NEST+m and threatened to have him
removed if he sought to resume his duties.

Id. ¶¶ 36—39.

These events gave rise to two state court lawsuits.

In

December 2008, Miller sued pursuant to an Article 78 special
proceeding in New York Supreme Court to rescind the resignation.
Id. ¶ 45.

He also commenced a separate state court action against

Livanis for tortious interference with his contractual rights in
August 2009.

Id. ¶ 52.

In May 2010, New York Supreme Court

Justice Jane Solomon, presiding over the Article 78 action, held
that Miller’s resignation was the result of coercion and dishonesty
and ordered Miller reinstated to his teaching position at NEST+m.
Id. ¶ 46.
However, the DOE disregarded the order and assigned plaintiff
instead to a non-permanent position in the absent teacher reserve
at the Art & Design High School, an allegedly inferior high school.
Id. ¶ 48.

As a result, Miller returned to state court and filed

an Order to Show Cause to compel his reinstatement at NEST+m.
¶ 49.

Id.

On September 3, 2010, Justice Solomon again ordered the DOE

to return Miller to his previous post.

Id. ¶ 50.

Nevertheless,

when Miller attempted to return to NEST+m on September 6, 2010, he
was denied entry by several security guards and police officers
allegedly acting under Livanis’s directive.
3

Id. ¶¶ 53—56.

Consequently, on October 15, 2010, plaintiff moved to hold
defendants in contempt of the state court ruling, at which point
Justice Solomon directed the DOE to place plaintiff in a school
with a similar academic profile to that of NEST+m.

Id. ¶ 60.

However, before Miller could be placed in a suitable alternative
school, defendants agreed to allow Miller to return to his original
post at NEST+m.

Id.

Following a stipulation dated November 8,

2010, and a resolution of his monetary claims, Miller finally
returned to NEST+m on November 15, 2010.

Id. ¶ 61.

Upon returning to the school, however, Miller alleges that
he faced “a continuous, pervasive and relentless campaign of
retaliation and harassment” as a result of his earlier litigation,
protests, and complaints.

Id. ¶ 62.

Specifically, Miller was

allegedly subjected to a litany of formal reviews and observations
(unlike any other teacher at the school), allowed to teach only as
a “team-teacher” and for a limited amount of time per class period,
unfairly rated as “unsatisfactory” and thereby precluded from
receiving

any

disciplinary

raises,
hearings

and

required

concerning

his

to

attend

a

interactions

string
with

of
the

administration, all in an attempt to build a false record in order
to remove him from NEST+m.

Id. ¶¶ 63—161.

Miller responded

negatively to these developments, alleging that the disciplinary
actions were conducted in bad faith and for retaliatory and
4

harassment purposes.

See, e.g., id. ¶¶ 74, 78, 81, 100—03, 150—

51. This in turn prompted further disciplinary hearings to address
Miller’s allegedly inappropriate complaints and “insubordination,”
resulting in a cycle of antagonism.
As a result of this antagonism, Justice Solomon again asked
the parties to arrange for plaintiff’s transfer from NEST+m to an
equivalent school.

Defendants allegedly delayed such action and

ultimately offered to transfer Miller on a trial-basis to another
allegedly inferior school.

Id. ¶ 148. Miller therefore rejected

the offer and the cycle of disciplinary actions and opposition
continued.
These disputes culminated in Miller’s receipt of charges for
a § 3020-a disciplinary hearing in May 2012.
thirty-eight

specifications

in

which

The charges included

Miller

was

accused

of

“unprofessional conduct” and advised that there existed just cause
for his termination.
In

response

Id. ¶ 162.
to

these

charges,

Miller

entered

into

a

Stipulation Agreement (“the Stipulation”) in February 2013, id. ¶
163, under which the DOE agreed to discontinue the disciplinary
hearing in exchange for plaintiff’s admission of guilt, payment of
a fine, and waiver of his rights to “make any legal or equitable
claims” “arising from or related to this matter.”
A.

Clark Decl. Ex.

The Stipulation further noted that the parties entered the
5

agreement

“freely,

knowingly

and

openly,

without

coercion

or

duress,” id., and Miller was represented by counsel throughout the
§ 3020-a process culminating in his signing of the Stipulation.
Cmplt. ¶ 164.

As a result of this stipulation, Miller remained

employed by the DOE, but was reassigned from NEST+m to the Absent
Teacher Reserve.

II.

Id. ¶ 163.

Procedural Posture
Miller filed an initial complaint on November 14, 2013 and,

after a pre-motion conference on March 4, 2014, filed an amended
complaint

on

April

10,

2014.

This

complaint

alleges

that

defendants’ actions towards Miller upon his return to NEST+m
exhibited an unlawful pattern of retaliation and harassment in
violation of Miller’s constitutional rights, as secured to him
under the First Amendment, the Equal Protection Clause, and the
Due Process Clause.

Defendants moved to dismiss the amended

complaint under Federal Rule of Civil Procedure 12(b)(6) on May 2,
2014 and the motion was fully briefed on July 22, 2014.

DISCUSSION
I.

Legal Standard
When deciding a motion to dismiss for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6), the Court must
6

accept all factual allegations in the complaint as true and draw
all reasonable inferences in favor of the plaintiff.

Harris v.

Mills, 572 F. 3d 66, 71 (2d Cir. 2009); Kassner v. 2nd Ave.
Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). Nevertheless,
a plaintiff's factual allegations “must be enough to raise a right
of relief above the speculative level.”

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted).

If

he has not “nudged [his] claims across the line from conceivable
to plausible, [the plaintiff's] complaint must be dismissed.”

Id.

at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(finding that a plaintiff’s allegations must demonstrate “more
than a sheer possibility that a defendant has acted unlawfully” to
survive a motion to dismiss).

This standard applies to “all civil

actions,” including retaliation suits.

Iqbal, 556 U.S. at 684.

When determining the plausibility of a complaint, the Court
may also consider documents attached as exhibits and documents
incorporated by reference in the complaint.

Halebian v. Berv, 644

F.3d 122, 131 n.7 (2d Cir. 2011); Chapman v. N.Y. State Div. for
Youth, 546 F.3d 230, 234 (2d Cir. 2008).

II.

Plaintiff Has Waived His Right to Bring the Present Claims
A release that is clear and unambiguous on its face and which

is

knowingly

and

voluntarily

entered
7

into

will

be

enforced.

Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 463 (2d Cir. 2011).
This standard applies to waivers of constitutional rights.

See

Bormann v. AT & T Communications, Inc., 875 F.2d 399, 402 (2d Cir.
1989), cert. denied 493 U.S. 924 (1989) (dismissing Title VII
claims); Mandavia v. Columbia Univ., 12 CIV. 2188 JPO, 2013 WL
2391695 (S.D.N.Y. June 3, 2013) aff'd, 556 F. App'x 56 (2d Cir.
2014).

However, the waiver of “any fundamental right can neither

‘be presumed nor may it be lightly inferred.’”

Doe v. Marsh, 105

F.3d 106, 111 (2d Cir. 1997) (quoting United States v. Mapp, 476
F.2d 67, 77 (2d Cir. 1973).
We find that the present action is barred by the Stipulation
Miller signed to resolve his § 3020-a proceeding, in which Miller
waived all “rights to make any legal or equitable claims or to
initiate legal proceedings or administrative hearings of any kind
against each or any employee thereof, relating to or arising out
of this matter, except to enforce this Stipulation of Settlement
now or in the future.”
A. The Stipulation Unambiguously Bars Miller’s Present Claims
First, we find that the scope of the waiver encompasses the
constitutional claims brought here.
addressed
conduct,”

in

the

3020-a

including

action
his

was

Specifically, the “matter”
Miller’s

complaints,

“unprofessional
protests,

and

“insubordination,” which arose as a response to, and prompted more
8

of, the administration’s allegedly retaliatory and discriminatory
tactics.

The

very

same

conduct--Miller’s

remonstration

and

litigiousness and defendants’ alleged retaliation and harassment-forms the basis for Miller’s constitutional claims here.

In

essence, Miller seeks to relitigate the question of the propriety
of his conduct vis-à-vis the defendants’ disciplinary hearings
that was resolved in the 3020-a action.

As such, the present

action clearly “relat[es] to or aris[es] out of” the subject of
the 3020-a proceeding and is barred by the stipulation.
Miller seeks to avoid enforcement of the waiver here by
arguing

that

the

phrase

“this

matter”

refers

not

to

the

interactions that underlie the § 3020-a charges, but rather to the
§ 3020-a proceeding itself. Under this reading, the Stipulation is
a limited release that bars only claims related to the actual
conduct of the § 3020-a action.
However, such a reading is belied by the nature and language
of the release.

First, although the Stipulation releases Miller’s

claims arising out of “this matter” rather than “any claims known
or unknown,” the waiver is nevertheless a general form release,
which other courts have held to bar related claims.

See Lewis v.

NYC Dep't of Educ., 12 Civ. 675 NRB, 2013 WL 5405534 (S.D.N.Y.
Sept. 25, 2013) (upholding same waiver as general release barring
discrimination

claims

brought

after
9

disciplinary

hearing

for

unprofessional conduct); cf. Tromp v. City of New York, 465 F.
App'x 50 (2d Cir. 2012) (finding that clause releasing only “claims
which were or could have been alleged by me in the aforementioned
action” “did not limit the scope of the [waiver as a] General
Release [but] simply evidenced the parties' intent to resolve the
litigation at hand,” because “[i]f the parties had desired to enter
into a limited release, barring only claims arising out of the
specific events [preceding the release], they could have expressly
done so, but they did not”).
More importantly, such a reading ignores the Stipulation’s
explicit caveat that the release would not bar plaintiff’s ongoing
state court action for tortious interference.

We find such a

reading implausible, as the parties negotiated to specifically
exempt plaintiff’s ongoing state law claims against defendant
Livanis for tortious interference with contract.

If the waiver in

fact encompassed only issues arising from the limited conduct of
the § 3020-a action, such an exemption would be redundant or
extraneous.

Rather, the inclusion of this specific exemption

suggests the parties understood that the Stipulation would bar any
and all claims related to the plaintiff’s employment disputes, and
that they chose to negotiate and except only the pre-existing state
court action.

As such, plaintiff’s current claims clearly relate

10

to

the

3020-a

“matter”

and

fall

within

the

scope

of

the

Stipulation’s waiver.
B. Plaintiff’s Waiver was Knowing and Voluntary
Having

found

that

the

Stipulation

covers

the

instant

litigation, we next address whether the Stipulation was signed
knowingly

and

voluntarily

plaintiff’s claims.

and

can

thus

be

enforced

to

bar

“[A] a release that is clear and unambiguous

on its face and which is knowingly and voluntarily entered into
will be enforced.”

Pampillonia v. RJR Nabisco, Inc., 138 F.3d

459, 463 (2d Cir. 1998).

In the employment context, whether an

employee signed a waiver knowingly and voluntarily is assessed in
light of the totality of the circumstances, looking especially at
the following factors: (1) the plaintiff's education and business
experience;

(2)

the

amount

of

time

that

the

plaintiff

had

possession of or access to the agreement before signing it; (3)
the plaintiff's role in deciding the terms of the waiver agreement;
(4) the clarity of the agreement; (5) whether the plaintiff was
represented by or consulted with an attorney prior to signing the
agreement; (6) whether the consideration given to the plaintiff in
exchange for the waiver exceeds the employee benefits to which the
plaintiff was already entitled by contract or law; (7) whether the
employer encouraged or discouraged the plaintiff to consult with
an attorney; and (8) whether the plaintiff had a fair opportunity
11

to consult with an attorney prior to signing the agreement.
Bormann v. AT & T Communications, Inc., 875 F.2d 399, 403 (2d Cir.
1989); see also Livingston v. Adirondack Beverage Co., 141 F.3d
434, 438 (2d Cir. 1998); Mandavia v. Columbia Univ., 12 CIV. 2188
JPO, 2013 WL 2391695 (S.D.N.Y. June 3, 2013) aff'd, 556 F. App'x
56 (2d Cir. 2014).
Miller contends that the second and fourth factors weigh in
favor of nonenforcement.

First, he argues that the fact that he

and his attorney were given only one day to review the Stipulation
is sufficient to establish a question of involuntariness. However,
“the day afforded to [Miller] was more than sufficient[, as c]ourts
often have held that even a few hours is ample time within which
to review a release.”

Boudinot v. Shrader, 09 Civ. 10163 LAK,

2013 WL 1481226 (S.D.N.Y. Apr. 10, 2013); see also Shain v. Ctr.
for Jewish History, Inc., 04 Civ. 1762 (NRB), 2006 WL 3549318, at
*4 (S.D.N.Y. Dec. 7, 2006) (finding several hours “more than
adequate to fully read and understand the brief and straightforward
language of the release”).

Additionally, plaintiff does not

suggest in his pleadings that he raised concerns about the time
allotted for consideration before agreeing to the waiver, nor does
he allege that he asked for additional time to review and was
denied.

12

Second, Miller asserts that the language of the release was
ambiguous, reasonably leading him to believe that it was limited
in scope.

As a result of this ambiguity, underscored by his

attorney’s assurances that future constitutional claims would not
be barred, Miller argues that he did not knowingly waive his
constitutional claims, which he thought were outside the scope of
the waiver.
release

However, as discussed above, the waiver is a general

that

claims.
sufficient

clearly

and

unambiguously

bars

Miller’s

related

We also note that, despite engaging in negotiations
to

exempt

plaintiff’s

state

court

action,

neither

plaintiff nor his attorney voiced concern as to ambiguity in the
waiver or made an attempt to get on-the-record clarification for
the terms now challenged as ambiguous.

Clark Decl., Ex. B.

Moreover, the other six Bormann factors clearly support the
conclusion

that

the

waiver

was

entered

into

knowingly

and

voluntarily. Miller is an educated person with years of experience
as an English teacher who therefore possesses the requisite skill
set to read and comprehend the waiver provision.

Miller played an

adequate role in deciding the terms of the waiver, as evidenced by
his ability to specifically exempt his state-law claim from an
otherwise standard-form waiver agreement.

See, e.g., Russomanno

v. Murphy, 09 Civ. 8804(RJH), 2011 WL 609878, at *4 (S.D.N.Y. Feb.
16, 2011) (finding plaintiff had significant role where he was
13

able to negotiate for higher severance pay).

He was represented

by an attorney throughout the process and was able to consult with
his counsel about the terms and scope of the waiver prior to
signing.

Cmplt. ¶¶ 165—167.

consideration,

as

his

Finally, he received valuable

agreement

to

the

waiver

avoided

the

continuation of the § 3020-a proceeding, which could have resulted
in his termination. Id. ¶ 162.
Accordingly, on the totality of the circumstances, we find
that Miller executed the waiver knowingly and voluntarily and that
the Stipulation therefore bars his present claims.

III. Plaintiff Fails to State a Claim on Which Relief Can be
Granted
Even if plaintiff had not waived his constitutional claims
in the Stipulation, they would nevertheless be dismissed for
failure to state a claim.
A. 42 U.S.C. § 1983
1. First Amendment Retaliation
We first address Miller’s claim that defendants’ disciplinary
actions served as retaliation for his protests, litigations, and
comments in violation of his First Amendment rights.

We find that

Miller has not pled facts sufficient to show that his speech
addressed a matter of public concern and that such speech therefore
does not warrant constitutional protection under Section 1983.
14

To state a claim of First Amendment retaliation under Section
1983, a plaintiff must show 1) that his speech was constitutionally
protected; 2) that he suffered an adverse employment action; and
3) that a causal relationship existed between the speech and the
adverse employment action.

Burkybile v. Bd. of Educ. of Hastings-

On-Hudson Union Free Sch. Dist., 411 F.3d 306, 313 (2d Cir. 2005).
For a public employee’s speech made in the course of employment to
warrant constitutional protection, the employee must show that he
“spoke as a citizen on a matter of public concern.”

Garcetti v.

Ceballos, 547 U.S. 410, 417 (2006).
Whether an employee's speech addresses a matter of public
concern and is thus protected is a question of law for the court
to decide, taking into account the content, form, and context of
a given statement as revealed by the whole record. Lewis v. Cowen,
165 F.3d 154, 163 (2d Cir. 1999) (citing Connick v. Myers, 461
U.S. 138, 147—48 & n.7 (1983)).
the

employee's

speech

was

The central question is whether

“calculated

to

redress

grievances or whether it had a broader public purpose.”
v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008).

personal
Ruotolo
“[S]peech

on a purely private matter, such as an employee's dissatisfaction
with the conditions of his employment, does not pertain to a matter
of public concern.”

Lewis, 165 F.3d at 164. However, it does not

follow that a person motivated by a personal grievance cannot be
15

speaking on a matter of public concern; the speaker’s motive alone
is not dispositive of the public concern issue.

Sousa v. Roque,

578 F.3d 164, 173—74 (2d Cir. 2009).
Here, the “litigation, protests, complaints, [and] comments”
for which Miller alleges retaliation do not address a matter of
public concern but are rather focused entirely on defendants’
treatment towards him alone. Both of Miller’s state court lawsuits
concerned problems with and sought redress limited to his own
personal employment circumstances. Likewise, plaintiff’s in-school
comments

and

protests

disputed

the

propriety

of

the

administration’s actions with respect to him alone, such as his
being

singled

out

for

numerous

formal

observations

and

disciplinary meetings, and did not allege any system-wide policy
affecting the school as a whole. Even in this lawsuit, Miller
complains solely of personal damage and seeks only personal relief.
Plaintiff insists that his complaints amount to a matter of
public concern insofar as they may reveal public wrongdoing or
corruption, issues held to be of public concern.

See Johnson v.

Ganim, 342 F.3d 105, 112—113 (2d Cir 2003); Harmon v. City of New
York, 140 F.3d 111, 118 (2d Cir. 1998).

However, unlike public

corruption cases that allege a broad impact on other citizens,
here, the only stated victim impacted by the administration’s
actions was the plaintiff himself.
16

Indeed, elsewhere in the

complaint, Miller expressly argues he is treated differently from
other “similarly situated” individuals, further suggesting these
harmful actions applied only to him.

While Miller suggests that

there may exist some implied negative effect to others because of
the administration’s actions towards him, he cannot rely on such
a tenuous effect to the public to transform a personal complaint
into a public concern.

See Ruotolo, 514 F.3d at 190 (“‘[A] public

employee may not transform a personal grievance into a matter of
public concern by invoking a supposed popular interest in the way
public institutions are run.’ A generalized public interest in the
fair or proper treatment of public employees is not enough.”)
(quoting Boyce v. Andrew, 510 F.3d 1333, 1343 (11th Cir. 2007)).
Accordingly, we find that the plaintiff fails to state a valid
claim of First Amendment retaliation under § 1983.
2. Equal Protection
Plaintiff next argues that, in their attempts to harass and
retaliate against him, defendants treated him differently from
“similarly situated individuals” and thereby violated his rights
under the Equal Protection Clause.

In support of this equal

protection claim, Miller has not alleged that he was a member of
a protected group, but relies instead on a “class-of-one” theory.
Claims for violations of the Equal Protection Clause follow
one

of

two

approaches.

Generally,
17

a

plaintiff

will

allege

membership

in

a

protected

class

or

identifiable

discriminatory treatment based on that status.

group

and

See Engquist v.

Oregon Dep't of Agr., 553 U.S. 591, 601 (2008) (noting that Equal
Protection

jurisprudence

has

“typically

been

concerned

with

governmental classifications that affect some groups of citizens
differently than others”).

However, in some circumstances, the

Court has allowed individuals to sustain an equal protection claim
on a “class-of-one” theory when the plaintiff has been irrationally
singled out.

See, e.g., Vill. of Willowbrook v. Olech, 528 U.S.

562, 564—65 (2000).
Here, Miller does not plead that he is a member of a protected
group, relying instead on the “class-of-one” theory.

However, the

“class-of-one” theory does not apply to public employees.
Engquist,

553

U.S.

at

609

(noting

that

“[p]ublic

See

employees

typically have a variety of protections from arbitrary or malicious
personnel

actions”

and

refusing

to

“impermissibly

‘constitutionalize the employee grievance’”) (citing Connick, 461
U.S. at 154); Appel v. Spiridon, 531 F.3d 138, 139—40 (2d. Cir.
2008) (“[T]he Equal Protection Clause does not apply to a public
employee asserting a violation of the Clause based on a ‘class of
one’ theory of liability.”).
Accordingly, because Miller “claims only that he was treated
differently from other similarly situated employees for malicious
18

reasons . . . and not on the basis of his membership in any
particular

class,

his

equal

protection

claim

is

barred

by

Engquist.”

Massi v. Flynn, 353 F. App'x 658, 660 (2d Cir. 2009).

3. Procedural Due Process
Plaintiff next asserts that he has a property interest in the
“various procedures, policies, rules, regulations and contractual
provisions that govern the manner in which teachers, such as
plaintiff, are to be treated” and that, by departing from these
policies in a malicious and biased way, defendants “violated the
property rights he possessed as a tenured teacher”.

Cmplt. ¶¶

191—96.
To state a claim for a procedural due process violation under
Section 1983, a complaint must allege that the defendants deprived
the plaintiff of a right secured by the Constitution or laws of
the United States and that such deprivation was committed by
persons

acting

under

color

of

state

law.

42

U.S.C.

§

1983.

Identifying the relevant property interest is a two-step process.
Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002).
First, a court must determine whether some source of law other
than the Constitution, such as a state or federal statute, confers
a property right on the plaintiff. O'Connor v. Pierson, 426 F.3d
187, 196 (2d Cir. 2005).

To invoke the Due Process Clause, a

plaintiff must seek to “protect something more than an ordinary
19

contractual right,” S & D Maint. Co. v. Goldin, 844 F.2d 962, 966
(2d Cir. 1988), or a “unilateral expectation,” Looney v. Black,
702 F.3d 701, 706 (2d Cir. 2012) (quoting Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564 (1972)). If such a property right
is found, the court must determine whether that property right
“constitutes a property interest for purposes of the Fourteenth
Amendment.” Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).
Here, Miller has not alleged a property interest cognizable
under the Due Process Clause.

Rather, Miller seems to conflate

the standard’s two steps by arguing that he has a property right
in the fair application of the rules and procedures secured to him
as a tenured teacher.
cite

no

case

law,

This novel attempt, for which Miller can

does

not

suffice

to

transform

procedural

expectations to a constitutionally recognized property right.

As

such, Miller’s procedural due process claim is dismissed for
failure to identify a cognizable property interest.
4. Substantive Due Process
Plaintiff further alleges that, by failing to adhere to and
fairly administer the various procedures governing treatment of
teachers, defendants have engaged in arbitrary government action
that is conscience-shocking and oppressive in violation of his
substantive due process rights.

20

“[A] party asserting a deprivation of substantive due process
must first establish a valid property interest within the meaning
of the Constitution . . . . Second, the party must demonstrate
that the defendant acted in an arbitrary or irrational manner in
depriving him of that property interest.”

Crowley v. Courville,

76 F.3d 47, 52 (2d Cir. 1996).
However, “where a specific constitutional provision prohibits
government action, plaintiffs seeking redress for that prohibited
conduct in a § 1983 suit cannot make reference to the broad notion
of substantive due process.”
Cir. 2005).
would

Velez v. Levy, 401 F.3d 75, 94 (2d

Specifically, when “defendants' purported actions

not--but

for

the

allegations

of

[other

constitutional]

violations--be sufficiently shocking to state substantive due
process claims, . . . plaintiff's substantive due process claim is
either subsumed in h[is] more particularized allegations, or must
fail.”

Id.

Here,

plaintiff

asserts

that

defendants

violated

his

substantive due process rights by harassing him and using sham
disciplinary

charges

“to

create

an

intolerably

abusive

environment in order to drive him from his profession.”
101.

work

Cmplt. ¶

However, “[w]hat is allegedly shocking about what the

defendants did is either their intent to violate plaintiff's
fundamental First Amendment rights, or their motive to deprive
21

h[im] of liberty without procedural due process.

In other words,

what would serve to raise defendant[s’] actions beyond the wrongful
to the unconscionable and shocking are facts which, if proven,
would

constitute,

violations.”
redress

for

in

themselves,

Velez, 401 F.3d at 94.
these

constitutional

specific

constitutional

As plaintiff has sought

violations

elsewhere

in

the

complaint, his substantive due process claim must fail.
B. 42 U.S.C. § 1985(3)
Finally, plaintiff alleges that through their coordinated
pattern

of

harassment

and

retaliatory

conduct,

defendants

conspired to deprive him of his civil rights under Section 1985(3).
To make out a claim under Section 1985(3), a plaintiff must show:
(1) a conspiracy; (2) for the purpose of depriving, either directly
or indirectly, any person or class of persons of equal protection
of the laws, or of equal privileges and immunities under the laws;
(3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any
right of a citizen of the United States. Mian v. Donaldson, Lufkin
& Jenrette Sec. Corp., 7 F.3d 1085, 1087—88 (2d Cir. 1993) (citing
1088 United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825,
828—29 (1983)).
In addition, the conspiracy must be motivated by “some racial
or perhaps otherwise class-based, invidious discriminatory animus
22

behind the conspirators' action.”

1088 United Bhd. of Carpenters,

463 U.S. at 829; see also Britt v. Garcia, 457 F.3d 264, 270 n.4
(2d Cir. 2006); Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999).
The

Supreme

Court

has

animus] requirement.”

“strictly

construed

this

[class-based

Katz v. Klehammer, 902 F.2d 204, 208 (2d

Cir. 1990) (holding that plaintiff's Section 1985(3) claim “was
properly

dismissed

as

frivolous,”

since

the

complaint

was

“completely devoid of any claim of class-based animus, whether
economic,

political,

or

otherwise”);

see

also

Robinson

v.

Allstate, 706 F. Supp. 2d 320, 328 (W.D.N.Y. 2010) aff'd sub nom.
Robinson v. Allstate Ins. Co., 508 F. App'x 7 (2d Cir. 2013)
(dismissing Section 1985(3) claims where “[p]laintiff has not
attempted to show, or even allege, that defendants were motivated
by any class-based animus, relying instead on a ‘class of one’
theory”).
Here, plaintiff has alleged no racial or class-based animus,
relying instead, as in his Equal Protection claim, on a class-ofone theory.

His Section 1985 claim is therefore dismissed.

CONCLUSION
For the reasons stated above, the Court grants defendants'
motion to dismiss.

This Memorandum and Order resolves Docket No.

23

9,

and the Clerk of the Court is respectfully directed to close

this case.

SO ORDERED.

Dated: New York, New York
December 2, 2014

NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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Copies of the foregoing Order have been mailed on this date to
the following:
Attorney for Plaintiff
Alan E. Wolin, Esq.
Wolin & Wolin
420 Jericho Turnpike, Suite 215
Jericho, NY 11753
Attorney for Defendants
Christopher Bouriat, Esq.
Office of the Corporation Counsel
City of New York
100 Church Street
New York, NY 10007

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