Cohen v. Walcott et al

Filing 100

MEMORANDUM OPINION AND ORDER: re: 73 MOTION for Summary Judgment filed by Corinne Rello-Anselmi, Douglas Knecht, Dennis Walcott, New York City Department of Education, City of New York. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the defendants' motion for summary judgment is granted. The Clerk is directed to enter judgment dismissing this action . However, the plaintiff's state law claim for defamation by implication is dismissed without prejudice for lack of subject matter jurisdiction. The Clerk is directed to close this case. The Clerk is also directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 6/23/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------COHEN,
Plaintiff,

13-cv-9181 (JGK)

- v.-

MEMORANDUM OPINION
AND ORDER

WALCOTT ET AL,
Defendants.
-----------------------------------JOHN G. KOELTL, District Judge:
The plaintiff, Robert Cohen (“Cohen”), brings this action
against the defendants, the New York City Department of
Education (the “DOE”); the former Chancellor of the DOE, Dennis
Walcott (“Walcott”); the plaintiff’s former supervisors at the
DOE, Douglas Knecht (“Knecht”), and Corinne Rello-Anselmi
(“Rello-Anselmi”). Cohen asserts claims for (1) due process
violations under the Fourteenth Amendment pursuant to 42 U.S.C.
§ 1983; (2) violations of the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”), 42 U.S.C. § 300bb, and (3)
defamation by implication under New York law. The defendants
move for summary judgment dismissing the claims.
For the following reasons, the defendants’ motion for
summary judgment is granted.
I.
Pursuant to Federal Rule of Civil Procedure 56(a), “The
court shall grant summary judgment 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.” See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Darnell v.
Pineiro, 849 F.3d 17, 22 (2d Cir. 2017). “[T]he trial court’s
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them. Its
duty, in short, is confined at this point to issue-finding; it
does not extend to issue-resolution.” Gallo v. Prudential
Residential Servs., Ltd. P’Ship, 22 F.3d 1219, 1224 (2d Cir.
1994). The moving party bears the initial burden of “informing
the district court of the basis for its motion” and identifying
the matter that “it believes demonstrate[s] the absence of a
genuine issue of material fact.” Celotex, 477 U.S. at 323. The
substantive law governing the case will identify those facts
that are material and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see
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also Gallo, 22 F.3d at 1223. Summary judgment is improper if
there is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving
party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
Cir. 1994). If the moving party meets its burden, the nonmoving
party must produce evidence in the record and “may not rely
simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible . . .” Ying
Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
II.
The evidence submitted to the Court, construed in the light
most favorable to the plaintiff, demonstrates that there is no
dispute as to the following facts, except as otherwise noted.
From 1971 through February 2013, Cohen was employed at-will
in a variety of positions by the DOE. Cohen began his career
with the DOE as a teacher. Defs.’ R. 56.1 Stmt. ¶¶ 2-3, 130;
Pl.’s R. 56.1 Counterst. in Opp. to Defs.’ R. 56.1 Stmt. (“Pl.’s
R. 56.1 Counterst.”) ¶¶ 2-3, 130. In 2008, Cohen became the
network leader for Children’s First Network 104 (“CFN 104”), a
DOE school support organization that provides administrative
support to approximately 33 schools. Defs.’ R. 56.1 Stmt. ¶¶ 36; Pl.’s R. 56.1 Counterst. ¶¶ 3-6. While Cohen was the network
leader of CFN 104, he was supervised by Rello-Anselmi and then
by Knecht. Cohen Dep. 16-17.
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As an alternative to DOE networks like CFN 104, DOE school
principals can choose to receive administrative support from
Partnership Support Organizations (“PSOs”), which are private
organizations outside the auspices of the DOE. Defs.’ R. 56.1
Stmt. ¶ 73; Pl.’s R. 56.1 Counterst. ¶ 73. In 2012, Cohen was
offered a position at one such PSO, the Center for Education
Innovation - Public Education Association (“CEI-PEA”). Defs.’ R.
56.1 Stmt. ¶ 75; Pl.’s R. 56.1 Counterst. ¶ 75.
At a meeting in March 2012 with the principals for the
schools within CFN 104, Cohen announced that he had received the
CEI-PEA employment offer, which he was considering accepting.
Defs.’ R. 56.1 Stmt. ¶ 80; Pl.’s R. 56.1 Counterst. ¶ 80. After
the meeting, all of the principals within CFN 104 applied to
join CEI-PEA; however, the DOE permitted only some of the CFN
104 principals to switch. Defs.’ R. 56.1 Stmt. ¶¶ 81, 100; Pl.’s
R. 56.1 Counterst. ¶¶ 81, 100. While Cohen initially indicated
that he would retire from the DOE and accept the position with
CEI-PEA, he ultimately decided to reject the offer. Defs.’ R.
56.1 Stmt. ¶¶ 83, 102-103; Pl.’s R. 56.1 Counterst. ¶¶ 83, 102103.
In the summer of 2012, the New York City Conflicts of
Interest Board (the “COIB”) commenced an enforcement action
against Cohen pursuant to the New York City Charter (the
“Charter”). The COIB alleged that it was a conflict of interest
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for the plaintiff, while still employed by the DOE, to inform
the CFN 104 principals that he was considering retirement and
taking a position with CEI-PEA, and to request that the
principals switch from CFN 104 to CEI-PEA. Defs.’ R. 56.1 Stmt.
¶¶ 104-105; Pl.’s R. 56.1 Counterst. ¶¶ 104-105. The COIB
conducted a hearing, which the plaintiff did not attend because
he was being treated for Stage IV melanoma. Pl.’s R. 56.1
Counterst. ¶ 107. Cohen signed a disposition with the COIB and
paid a fine of $7,500 to resolve the charges. Under the
disposition, the plaintiff admitted that he had ignored the
“subtext” of his remarks to the principals, which constituted a
violation of the Charter because it was an attempt to obtain an
advantage for CEI-PEA. Defs.’ R. 56.1 Stmt. ¶¶ 106-107; Pl.’s R.
56.1 Counterst. ¶¶ 106-107; Cohen Dep. 60-61.
On February 7, 2013, Cohen received an e-mail from Knecht
requesting that the plaintiff attend a meeting at the DOE
headquarters. The plaintiff, Knecht, Justin Tyack (a director
from the Office of School Support) and Rochelle Kiam (Tyack’s
special assistant) attended the meeting. Cohen received an
ultimatum: resign from his position at the DOE or be terminated.
Defs.’ R. 56.1 Stmt. ¶¶ 110-113; Pl.’s R. 56.1 Counterst. ¶¶
110-113.
Knecht and Tyack claim that they told the plaintiff that he
could not continue working for the DOE because of the COIB
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disposition and because of his poor job performance. Knecht and
Tyack claim that the plaintiff did not ask any questions in
response to the ultimatum. Defs.’ R. 56.1 Stmt. ¶¶ 113-124.
Cohen claims that they only discussed the COIB disposition,
but not any matters related to his job performance. Cohen also
claims that his requests for more time to consider his options
and to consult with others were denied. Pl.’s R. 56.1 Counterst.
¶¶ 113-124.
Cohen agreed to resign on the condition that he be allowed
to “shape the narrative of his separation” from the DOE by
making it known that it was his decision to retire. The
resignation was effective immediately. The terms of the
resignation precluded the plaintiff from seeking employment with
the DOE or any vendor or company under contract with the DOE.
Defs.’ R. 56.1 Stmt. ¶¶ 123, 126, 128; Pl.’s R. 56.1 Counterst.
¶¶ 123, 126, 128. In addition, Cohen was forbidden from entering
a DOE building. Cohen Dep. 79.
The defendants claim that it was normal protocol for a
network leader, such as the plaintiff, to resign immediately.
Defs.’ R. 56.1 Stmt. ¶¶ 128-129. Cohen responds that, based on
his experience with the DOE, he does not believe that any other
network leader has resigned during the school year or been
forced to accept the same sort of draconian terms of

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resignation. Pl.’s R. 56.1 Counterst. ¶¶ 128-129; Cohen Aff. at
¶¶ 26-28.
The gravamen of the plaintiff’s § 1983 and defamation
claims relate to two e-mails sent on February 7, 2013 by Seth
Lemerman, a DOE employee, informing CFN 104’s principals that
the plaintiff had retired that afternoon (without further
elaboration) and that there would be a meeting on February 8,
2013 to discuss the transition. Defs.’ R. 56.1 Stmt. ¶ 151;
Pl.’s R. 56.1 Counterst. ¶ 151; Exs. Z, AA. At the transition
meeting, Knecht said that the plaintiff’s retirement was the
plaintiff’s own decision without further explanation. Defs.’ R.
56.1 Stmt. ¶¶ 139-140; Pl.’s R. 56.1 Counterst. ¶¶ 139-140.
Knecht also told the principals not to contact Cohen. The
defendants claim that the contact restriction was limited to
school hours, while the plaintiff claims that Knecht
communicated no such limitation. Defs.’ R. 56.1 Stmt. ¶ 138;
Pl.’s R. 56.1 Counterst. ¶ 138.
On May 2, 2013, Cohen filed a Notice of Claim with the
Office of the Comptroller of the City of New York pursuant to
Education Law § 3813 and General Municipal Law § 50-e. On
December 30, 2013, Cohen filed his complaint against the
defendants.

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III.
A.
In his first cause of action, the plaintiff alleges that
the defendants deprived him of his liberty interest without due
process of law in violation of the Fourteenth Amendment to the
United States Constitution. He asserts this claim pursuant to 42
U.S.C. § 1983. The gist of this cause of action is a “stigma
plus” claim. Cohen alleges that the e-mails informing the CFN
104 principals that he had retired harmed his reputation.
The loss of one’s reputation can violate the Due Process
Clause, if the loss of reputation is associated with the
deprivation of a federally protected liberty interest, such as
government employment. Bd. of Regents v. Roth, 408 U.S. 564, 573
(1972); Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994); see
also Patterson v. City of Utica, 370 F.3d 322, 329-330 (2d Cir.
2004). The loss of reputation without due process of law, in
combination with the loss of a more tangible interest, is
referred to as a claim for “stigma plus.” The “stigma” within a
stigma plus claim is the loss of reputation and the “plus” is
the loss of a more tangible interest, such as employment. See
Velez v. Levy 401 F.3d 75, 87-88 (2d Cir. 2005); Spang v.
Katonah-Lewisboro Union Free Sch. Dist., 626 F. Supp. 2d 389,
394-395 (S.D.N.Y. May 18, 2009). “Because stigma plus is a
species within the phylum of procedural due process claims,” the
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plaintiff must demonstrate that his liberty interest was
deprived without due process of law in addition to proving the
deprivation of a liberty interest. Segal v. City of New York,
459 F.3d 207, 213 (2d Cir. 2006). “[T]he availability of
adequate process defeats a stigma plus claim.” Id. “[T]he
hearing required where a nontenured employee has been
stigmatized in the course of a decision to terminate his
employment is solely to provide the person an opportunity to
clear his name.” Codd v. Velger, 429 U.S. 624, 627 (1997)
(internal quotation marks omitted).
In Segal, the Court of Appeals for the Second Circuit held
that, in a case involving “an at-will government employee, the
availability of an adequate, reasonably prompt, post-termination
name-clearing hearing is sufficient to defeat a stigma-plus
claim.” Segal, 459 F.3d at 214. In this case, the defendants
correctly argue that there was an adequate post-termination
name-clearing hearing available to the plaintiff, namely, an
Article 78 proceeding under the CPLR. The availability of an
Article 78 proceeding defeats a stigma-plus claim where, as
here, the plaintiff, an at-will employee, fails to avail himself
of the opportunity to be heard at such a hearing. Anemone v.
Metro. Transp. Auth., 629 F.3d 97, 121 (2d Cir. 2011); see also,
e.g., Giscombe v. N.Y. City Dep’t of Educ., No. 12 CIV 464
(LTS), 2013 WL 829127, at *8 (S.D.N.Y. Feb. 28, 2013). The
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plaintiff does not dispute the fact that an Article 78 nameclearing hearing was available to him, nor does he make any
effort to distinguish the relevant case law.
Similarly, to the extent that the plaintiff contends that
his “forced resignation” constitutes a constitutional violation,
the failure to use the Article 78 proceeding defeats that theory
as well because, in New York, “a plaintiff can challenge a
forced resignation through an Article 78 petition.” Donelli v.
Cty. of Sullivan, No. 07-cv-2157 (JGK), 2009 WL 2365551, at *7
(S.D.N.Y. July 31, 2009) (collecting cases).
Because the plaintiff has failed to establish a triable
issue of fact regarding a constitutional violation, it follows
that Walcott, Knecht and Rello-Anselmi are also entitled to
qualified immunity. Defendants are entitled to qualified
immunity from civil suits arising from performance of their
discretionary functions so long as their conduct “does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Whether an official may
invoke qualified immunity “generally turns on the ‘objective
legal reasonableness' of the action . . . assessed in light of
the legal rules that were ‘clearly established’ ” when the
action was taken. Anderson v. Creighton, 483 U.S. 635, 639
(1987) (citing Harlow, 457 U.S. at 818–19). The pertinent
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inquiry is how a reasonable official in the defendant’s position
would respond. See Cartier v. Lussier, 955 F.2d 841, 843 (2d
Cir. 1992); Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.
1991); Joyner v. Greiner, 195 F. Supp. 2d 500, 507–08 (S.D.N.Y.
Mar. 28, 2002); see also Roldan v. Kang, No. 13-CV-6889 (JGK),
2016 WL 4625688, at *4 (S.D.N.Y. Sept. 6, 2016).
The plaintiff has failed to argue, let alone establish,
that an official simply informing co-workers that another coworker has retired, without further explanation, violates a
clearly established right.
Moreover, the claims against the DOE must be dismissed
because the plaintiff has failed to present any evidence that
could establish municipal liability under Monell v. Dep’t of
Soc. Servs. of the City of New York, 436 U.S. 658 (1978). Monell
provides that “municipalities may be sued directly under § 1983
for constitutional deprivations inflicted upon private
individuals pursuant to a governmental custom, policy,
ordinance, regulation, or decision.” Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir. 1983) (citing Monell, 436 U.S. at 690691). Municipalities are not subject to liability under theories
of respondent superior, but rather on the basis that their
policies or customs “inflict[ed] the injury upon the plaintiff.”
Id. “[T]o hold a city liable under § 1983 for the
unconstitutional actions of its employees, a plaintiff is
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required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.” Id.; see also
Seymore v. Dep’t of Corr. Servs., No. 11 CIV 2554 (JGK), 2014 WL
641428, at *8 (S.D.N.Y. Feb. 18, 2014). 1
Monell only “extends liability to a municipal organization
where the organization’s failure to train, or the policies or
customs that it has sanctioned, led to an independent
constitutional violation.” Segal, 459 F.3d at 219. Where, as
here, a plaintiff fails to establish an underlying
constitutional violation there can be no liability under Monell.
Id.; see also Seymore, 2014 WL 641428, at *8. In any event, the
plaintiff’s claims against the DOE fail because the plaintiff
has failed to present any evidence to connect his asserted
injuries to any training, policy, or custom on the part of the
DOE. See Seymore, 2014 WL 641428, at *8; Benavides v. Grier, No.
09 CIV 8600 (JGK), 2011 WL 43521, at *3 (S.D.N.Y. Jan. 6, 2011);
see also Estevez v. City of New York, No. 16-cv-00073 (JGK),
2017 WL 1167379, at *7 (S.D.N.Y. Mar. 28, 2017).
The first cause of action for a violation of § 1983 is
therefore dismissed.

1

The DOE is a municipal organization and is only subject to
liability under § 1983 if the Monell requirements are satisfied.
See Fierro v. New York City Dep’t of Educ., 994 F. Supp. 2d 581,
588 (S.D.N.Y. Feb. 4, 2014).
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B.
The plaintiff’s second cause of action alleges a violation
of COBRA, 42 U.S.C. § 300bb. In his complaint, the plaintiff
argued that the defendants caused him to lose his COBRA
benefits. The defendants moved to dismiss this claim on various
bases. The plaintiff failed to respond to any of these
arguments. This claim is therefore deemed abandoned and is
dismissed. See e.g., Gym Door Repairs, Inc. v. Young Equip.
Sales, Inc., 206 F. Supp. 3d 869, 905 (S.D.N.Y. Sept. 12, 2016);
Intellivision v. Microsoft Corp., No. 07-cv-4079 (JGK), 2008 WL
3884382, at *7 (S.D.N.Y. Aug. 20, 2008).
C.
The third cause of action is a state law claim for
defamation by implication. The gist of the plaintiff’s claim is
that the e-mails informing the CFN 104 principals that he had
retired, while not explicitly defamatory, implied a nefarious
reason for the plaintiff’s separation from the DOE. The only
basis for jurisdiction over this state law claim is supplemental
jurisdiction pursuant to 28 U.S.C. § 1367.
Whether to exercise supplemental jurisdiction “is within
the sound discretion of the district court.” Lundy v. Catholic
Health Sys. of Long Island Inc., 711 F.3d 106, 117 (2d Cir.
2013) (citing Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343,
349–50 (1988)).
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When, as here, all federal claims are eliminated before
trial, the balance of factors to be considered --- including
judicial economy, convenience, fairness, and comity --typically points towards declining to exercise supplemental
jurisdiction over any remaining state-law claims. Lawtone-Bowles
v. City of New York, Dep't of Sanitation, 22 F. Supp. 3d 341,
352 (S.D.N.Y. May 30, 2014) (citing Kolari v. N.Y.-Presbyterian
Hosp., 455 F.3d 118, 122–24 (2d Cir. 2006)).
Here, comity factors in particular weigh against the
exercise of supplemental jurisdiction because the law on
defamation by implication is still developing in New York. The
Supreme Court of the State of New York, Appellate Division,
First Department in Stepanov v. Dow Jones & Co., 987 N.Y.S.2d
37, 44 (App. Div. 2014), only recently addressed the proper
standard for such claims as a matter of first impression.
Neither the New York Court of Appeals nor the Court of Appeals
for the Second Circuit has addressed the proper standard for
defamation by implication, let alone its finer contours. See id.
at 43; Biro v. Conde Nast, 883 F. Supp. 2d 441, 464-466
(S.D.N.Y. Aug. 9, 2012).
In this case, “there is no substantial federal policy that
would be advanced by retaining jurisdiction” and “[t]he
extensive discovery taken by the parties is readily available
for use in the state courts.” Nat'l Westminster Bank, PLC v.
14

Grant Prideco, Inc., 343 F. Supp. 2d 256, 258 (S.D.N.Y. Nov. 19,
2004). The plaintiff asks that, in the event of dismissal, the
case be remanded to state court pursuant to 28 U.S.C. § 1447.
However, this case was never removed from state court, and a
court cannot remand a case that was never removed. Accordingly,
the plaintiff’s defamation claim is dismissed without prejudice.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
defendants’ motion for summary judgment is granted. The Clerk is
directed to enter judgment dismissing this action. However, the
plaintiff’s state law claim for defamation by implication is
dismissed without prejudice for lack of subject matter
jurisdiction. The Clerk is directed to close this case. The
Clerk is also directed to close all pending motions.
SO ORDERED.
Dated:

New York, New York
June 23, 2017

_____________/s/_______________
John G. Koeltl
United States District Judge

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