Eyshinskiy v. Kendall et al
Filing
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OPINION AND ORDER.....Defendants' April 18, 2016 motion to dismiss the amended complaint is granted. The Clerk of Court is directed to enter judgment for the defendants and close the case. (Signed by Judge Denise L. Cote on 12/1/2016) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GENNADIY EYSHINSKIY,
:
:
Plaintiff,
:
:
-v:
:
NEW YORK CITY DEPARTMENT OF EDUCATION; :
TYEE CHIN, PRINCIPAL OF FLUSHING HIGH :
SCHOOL; ENRIC KENDALL, FORMER
:
PRINCIPAL OF FLUSHING HIGH SCHOOL;
:
AIMEE HOROWITZ, EXECUTIVE
:
SUPERINTENDENT OF RENEWAL SCHOOLS,
:
:
Defendants.
:
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15 Civ. 10027 (DLC)
OPINION AND ORDER
APPEARANCES:
For the plaintiff Gennadiy Eyshinskiy:
Bryan David Glass
Glass Krakower, LLP
20 Broadway, Ste. 1
Valhalla, NY 10595
For the defendants:
Gabriel Stoll Gladstone
New York City Law Department
New York, NY 10007
DENISE COTE, District Judge:
Plaintiff Gennadiy Eyshinskiy brings this action pursuant
to 42 U.S.C. § 1983 and New York Civil Service Law § 75-b,
alleging retaliation against him in violation of the First
Amendment and state law by the New York City Department of
Education (“DOE”), Tyee Chin (“Chin”), Enric Kendall
(“Kendall”), and Aimee Horowitz (“Horowitz”).
The defendants
have moved to dismiss the amended complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
For the following reasons,
defendants’ motion is granted.
Background
These facts are taken from the amended complaint.
From
1992 until 2016, Eyshinskiy was employed by the DOE, first as a
mathematics teacher, then as a mathematics coordinator, and,
beginning in 2006, as an assistant principal of mathematics at
Flushing High School (“Flushing”).
In the 2013-2014 academic
year, the plaintiff assigned an “effective” rating to all of
Flushing’s mathematics teachers.
Kendall, who became
Flushing’s principal in 2014, repeatedly questioned whether
plaintiff’s ratings were appropriate, but plaintiff maintained
that they were consistent with state and local assessments.
Teachers at Flushing expressed their view that Kendall’s
criticism of the ratings was unfair.
For the 2014-2015 year, the plaintiff again assigned
“effective” ratings to all of the mathematics teachers.
At a
disciplinary meeting in May 2015, Kendall accused Eyshinskiy of
“overrating” teachers, among other things.
In June, Kendall
gave Eyshinskiy an “unsatisfactory” annual evaluation, which
Eyshinskiy appealed.
The Chancellor’s designee upheld the
“unsatisfactory” evaluation in October 2015.
The plaintiff
took a medical leave of absence from October 2015 until January
2016.
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Upon plaintiff’s return in January of 2016, the new
principal of Flushing, defendant Chin, informed Eyshinskiy that
going forward Eyshinskiy would be required to submit his
observational reports of teachers to Chin for approval before
they were shown to teachers.
The plaintiff objected and then
retired that same month.
Plaintiff filed his complaint on December 23, 2015, and an
amended complaint on January 31, 2016.
Plaintiff brings a
claim for retaliation under 42 U.S.C. § 1983 and under New York
Civil Service Law § 75-b.
dismiss on April 18.1
9.
Defendants filed their motion to
The motion became fully submitted on May
This action was reassigned to this Court on November 22,
2016.
Discussion
When deciding a motion to dismiss under Rule 12(b), Fed.
R. Civ. P., a court “must accept all allegations in the
complaint as true and draw all inferences in the non-moving
party's favor.”
LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570
F.3d 471, 475 (2d Cir. 2009).
“To survive a motion to dismiss
under Rule 12(b)(6), a complaint must allege sufficient facts
The motion to dismiss was originally filed only on behalf of
defendants the DOE, Chin, and Horowitz. By letter dated
November 22, 2016, Kendall requested that the motion be deemed
filed on his behalf nunc pro tunc. Kendall’s request is
granted.
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which, taken as true, state a plausible claim for relief.”
Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir.
2014); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted) (“[A] complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief
that is plausible on its face.”).
“A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Parkcentral
Glob. Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208
(2d Cir. 2014) (per curiam) (citation omitted).
I.
Section 1983 Claim
Plaintiff seeks damages under 42 U.S.C. § 1983 for the
defendants’ retaliation against him for the exercise of his
free-speech rights under the First Amendment.2
Retaliation
claims brought by public employees under the First Amendment
are subject to a two-part inquiry: (1) “whether the employee
spoke as a citizen on a matter of public concern” and (2)
“whether the relevant government entity had an adequate
Other than identifying Horowitz’s job title as the
Superintendent of Renewal Schools, the complaint contains no
further allegations concerning her. “An individual may be held
liable under [§ 1983] only if that individual is personally
involved in the alleged deprivation.” Littlejohn v. City of New
York, 795 F.3d 297, 314 (2d Cir. 2015) (citation omitted).
Accordingly, Plaintiff’s § 1983 claim against Horowitz is
dismissed.
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justification for treating the employee differently from any
other member of the general public.”
Jackler v. Byrne, 658
F.3d 225, 235 (2d Cir. 2011) (emphasis omitted) (quoting
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
Because
plaintiff’s claim fails under the first part of this inquiry,
it is unnecessary to address whether it also fails under the
second prong.
“[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.”
Garcetti, 547 U.S. at 421.
Observing and evaluating
mathematics teachers were some of Eyshinskiy’s core
professional responsibilities as an assistant principal.
Eyshinskiy’s ratings and his statements in defense of those
ratings were made pursuant to his official duties and cannot
form the basis of a First Amendment retaliation claim.
Plaintiff relies on the district court’s decision in
Fierro v. City of New York, 591 F. Supp. 2d 431 (S.D.N.Y.
2008), rev’d on other grounds, 341 F. App’x 696 (2d Cir. 2009)
(summary order).
In Fierro, the court found that an assistant
principal’s refusal to engage in “campaigns to ruin the careers
of two very good teachers whom [his principal] did not like,”
id. at 441, was not speech made pursuant to his professional
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duties.
Id. at 443.
Among other things, the plaintiff in
Fierro had refused to lie and say that a teacher had told one
student to punch another.
Id. at 441.
It is unnecessary to
resolve whether Fierro was correctly decided, since it is
distinguishable.
Unlike the assistant principal in Fierro,
plaintiff has not alleged that he was ever directed to engage
in blatantly wrongful conduct.
See id. at 442.
Requiring the
plaintiff to submit his reports for review, or to apply a more
demanding standard to teacher ratings, do not constitute
blatantly wrongful conduct.
II.
New York Civil Service Law Claim
New York Civil Service Law provides that public employers
may not “dismiss or take other disciplinary or other adverse
personnel action against a public employee . . . because the
employee discloses to a governmental body information . . .
which the employee reasonably believes to be true and
reasonably believes constitutes an improper governmental
action.”
N.Y. Civ. Serv. Law § 75-b(2)(a).
Plaintiff contends
that defendants took retaliatory action against him in
violation of this provision.
As an initial matter, claims under § 75-b cannot be
maintained against individual public employees.
Moore v.
County of Rockland, 596 N.Y.S.2d 908, 911 (3d Dep’t 1993).
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Therefore, plaintiff has failed to state a § 75-b claim against
defendants Chin, Kendall, and Horowitz.
Eyshinskiy has failed to state a claim against the DOE
because he has not identified any disclosure he made “to a
governmental body” of improper government action, much less any
adverse action taken against him because of such a disclosure.
Disagreeing with the principals at Flushing about their
standards in supervising him does not constitute a complaint to
a governmental body.
See, e.g., Hastie v. State Univ. of N.Y.,
902 N.Y.S.2d 239, 240 (3d Dep’t 2010).
Indeed, the plaintiff
did not identify in opposition to the defendants’ motion any
disclosure he made to a governmental body to support this
§ 75-b claim.
Conclusion
Defendants’ April 18, 2016 motion to dismiss the amended
complaint is granted.
The Clerk of Court is directed to enter
judgment for the defendants and close the case.
Dated:
New York, New York
December 1, 2016
__________________________________
DENISE COTE
United States District Judge
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