Richardson v. Farina et al

Filing 29

OPINION AND ORDER. For the reasons in this Opinion and Order, the motion to dismiss is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 14 and to close the case. So ordered. re: 14 FIRST MOTION to Dismiss Complaint.FIRST MOTION to Dismiss for Lack of Jurisdiction filed by The New York City Department of Education, The New York City Board of Education. (Signed by Judge J. Paul Oetken on 2/23/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROSEMARIE RICHARDSON,
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Plaintiff,
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-v:
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CARMEN FARINA, et al.,
Defendants. :
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J. PAUL OETKEN, District Judge:

16-CV-1364 (JPO)
OPINION AND ORDER

Plaintiff Rosemarie Richardson filed the complaint in this action on February 22, 2016,
against Defendants Carmen Farina, Katherine G. Rodi, Candace R. McLaren, Miriam M.
Berardino, Anna Steel, the New York City Department of Education (“DOE”), the New York
City Board of Education (“BOE”) and the City of New York. (Dkt. No. 1 (“Compl.”).)
Richardson alleges that Defendants, her former employers, subjected her to disciplinary
proceedings that violated the Due Process Clause of the Fourteenth Amendment of the United
States Constitution and New York law. Defendants DOE, BOE, and the City of New York (the
“City Defendants”) move to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). For the reasons that follow, the motion is granted.
I.

Background
The following facts are taken from the complaint and the documents attached thereto and

are presumed true for the purposes of this motion.
Richardson was employed by the DOE as a tenured administrator in the DOE’s
Committee on Preschool Education (“CPSE”), until her retirement in 2012. (Compl. ¶¶ 2, 31; id.
Ex. 3.) Richardson’s responsibilities as a CPSE administrator included consulting with the

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parents of students with special needs to make recommendations for special education and an
individualized education program (“IEP”), and annually reviewing existing IEPs. (Id. Ex. 3 at 2
n.3.)
In 2011, the mother of one of Richardson’s special needs students made a complaint
against Richardson, claiming that Richardson repeatedly failed to respond to her requests to
change her son’s IEP, in violation of timelines imposed by New York law. (Id. at 4.) Several
months later, the mother received a new IEP, which stated that Richardson and the mother had
participated in a telephone conference regarding the new IEP; however, the mother claims that
no such conference ever occurred. (Id. at 2.)
The DOE’s Office of Special Investigations (“OSI”) opened an investigation into
Richardson’s alleged misconduct—including the failure to follow mandated timelines, the failure
to respond to the mother’s requests, and the allegedly false documentation of the mother’s
participation in the IEP review. (Compl. ¶ 19; id. Ex. 1 at 1.) On December 16, 2011,
Richardson was interviewed by an OSI investigator; the investigator informed Richardson of the
charges against her, which Richardson denied. (Compl. ¶¶ 22-27.)
Richardson retired from the DOE in July of 2012. (Id. ¶ 31.)
In August of 2012, Defendant Berardino, an OSI investigator, recommended that the
allegations against Richardson be “substantiated” and that she be placed on the “Ineligible List”
and not considered for future employment with the DOE. (Id. ¶¶ 6, 34-35.) Defendant McLaren,
Director of the OSI, approved Berardino’s recommendation. (Id. ¶¶ 5, 36.)
In April of 2015, Richardson applied for an educational position with Manual Therapy
Center, Inc. (Id. ¶ 40.) As part of the application process, her name was submitted for security
clearance with the DOE, and her security clearance was denied, as she had been placed on the

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Ineligible List. (Id. ¶¶ 41-42.) Richardson claims that she had never received any notice of her
placement on the Ineligible List. (Id. ¶¶ 38, 44.)
Richardson brings this action claiming that her placement on the Ineligible List amounts
to a deprivation of due process of law. (Id. ¶ 53.) She also alleges violations of Section 3020-a
of the New York Education Law, which she claims requires notice and a hearing, and Section
7803(3) of New York’s Civil Practice Law and Rules. (Id. ¶¶ 57-65.)
II.

Legal Standard
In order for a plaintiff to survive a Rule 12(b)(6) motion to dismiss, she must allege

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In considering this motion,
the Court must accept as true all “factual allegations contained in the complaint,” Twombly, 550
U.S. at 572, and draw “all inferences in the light most favorable to the non-moving party,” In re
NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (Sotomayor, J.).
III.

Discussion
Defendants 1 first argue that all claims against the City of New York should be dismissed,

as the City is not properly a party to this action. They next argue that Richardson fails to state a
due process claim because she has failed to allege the deprivation of a protected interest and
because her retirement foreclosed her from seeking protections due to employees. Defendants

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Only the City Defendants have moved to dismiss; the Individual Defendants
(Farina, Rodi, McLaren, Berardino, and Steel) have not. (Dkt. No. 16 at 3 n.1.)
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also argue that Richardson’s Article 78 claim should be dismissed, as federal courts do not have
jurisdiction over such claims, and because it is untimely.
A.

City of New York

As a threshold matter, all claims against Defendant City of New York must be dismissed.
Defendants argue that the City of New York is not properly a party to this case. (Dkt. No. 16 at
19-20.) Richardson “agrees and therefore consents to the dismissal of the City as a defendant in
this matter.” (Dkt. No. 21 at 1 n.1.)
B.

Due Process

“A procedural due process claim is composed of two elements: (1) the existence of a
property or liberty interest that was deprived and (2) deprivation of that interest without due
process.” Guttilla v. City of N.Y., No. 14 Civ. 156, 2015 WL 437405, at *7 (S.D.N.Y. Feb. 3,
2015) (quoting Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir. 2012)).
Defendants argue that Richardson fails to state a due process claim because she fails to
allege a protected liberty or property interest and because she retired during the pendency of the
investigation against her, thereby diminishing the procedural protections due to her.
1.

Protected Interest

Defendants argue that Richardson lacks a property interest in a DOE security clearance
and also that she has not been deprived of a constitutionally protected liberty interest.
As regards Richardson’s alleged property interest, “there is no constitutionally protected
property interest in prospective government employment.” See Abramson v. Pataki, 278 F.3d
93, 100 (2d Cir. 2002). Richardson thus cannot allege a deprivation of property resulting from
her placement on the Ineligible List. And indeed Richardson does not appear to contest
Defendants’ argument that she lacks a property interest in her security clearance. The cases cited

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by Richardson in which a property interest was found arose only in the context of termination of
existing employment, not the denial of future employment. See, e.g., Locurto v. Safir, 264 F.3d
154 (2d Cir. 2001); Otero v. Bridgeport Housing Auth., 297 F.3d 142, 151 (2d Cir. 2002).
As regards the deprivation of a liberty interest, Richardson does not adequately allege a
“stigma plus” due process violation. See, e.g., Behrend v. Klein, No. 04 Civ. 5413, 2006 WL
2729257, at *7 (E.D.N.Y. Sept. 25, 2006). A stigma-plus claim requires a plaintiff to show (1) a
stigmatizing statement that “effectively put[s] a significant roadblock in that employee’s
continued ability to practice his or her profession,” Donato v. Plainview-Old Bethpage Cent. Sch.
Dist., 96 F.3d 623, 631 (2d Cir. 1996); (2) public dissemination of that statement; and (3) that
any stigmatizing statements were made in close temporal proximity to the plaintiff’s dismissal
from government employment. See Segal v. City of N.Y., 459 F.3d 207, 212 (2d Cir. 2006).
Here, Richardson has failed to carry her burden at this stage, as she has not adequately
alleged that any potentially stigmatizing description of her conduct was disseminated publicly.
She only claims that her security clearance was denied, not that her prospective employer was
ever informed of the nature of the charges against her. (Compl. ¶¶ 40-43.) She nowhere alleges
that the report of the investigation was made public, or that the DOE’s denial of her security
clearance entailed the disclosure of the reasons for the denial. See McPherson v. N.Y. City Dep’t
of Educ., 457 F.3d 211, 216-17 (2d Cir. 2006) (affirming dismissal of a stigma-plus claim where
“the reasons for placement on the ‘Ineligible/Inquiry List’ remain confidential, and Plaintiff has
provided no evidence suggesting otherwise”).
Accordingly, Richardson’s due process claim must be dismissed.

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2.

Richardson’s Retirement

Defendants additionally argue that Richardson’s claim fails because her retirement
diminished her procedural rights. “[W]here the alleged illegality is the employer’s failure to
afford the employee legally required procedural protections, and the employee voluntarily
resigns before being discharged, the resignation effectively deprives the employer of the
opportunity to comply with the procedural obligations and forecloses the employee from
‘seek[ing] the protections of her previous rights as an employee.’” Finley v. Giacobbe, 79 F.3d
1285, 1296 (2d Cir. 1996) (second alteration in original) (quoting Girard v. Bd. of Educ., 168
A.D.2d 183, 186 (N.Y. App. Div. 4th Dep’t 1991)).
Here, Richardson claims that her placement on the Ineligible List deprived her of due
process and violated Section 3020-a of New York Education Law, which affords procedural
protections to tenured employees subjected to disciplinary proceedings. See N.Y. Educ. L.
§ 3020-a. However, Richardson retired from her position in July of 2012, while the investigation
into her conduct was still pending and after she had been interviewed in connection with the
investigation. (Compl. ¶¶ 22-27, 31.) As in Finley, her leaving the position “makes it
impossible for her to demonstrate that she would not have received” the procedural protections
she seeks. Finley, 79 F.3d at 1296. And as a result of her retirement, she was no longer due any
of the procedural protections that apply to active DOE employees.
Richardson argues that her tenure status persisted beyond her resignation, thereby
entitling her to further procedural protections. (Dkt. No. 21 at 11.) However, the only case
Richardson cites in support of this theory, Vaccaro v. Bd. of Educ. of City Sch. Dist., 39 Misc.3d
1241(A) (N.Y. Sup. Ct. 2013), rev’d, 139 A.D.3d 612 (N.Y. App. Div. 1st Dep’t 2016), does not
support her argument. As an initial matter, Vaccaro stands only for the proposition that a

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formerly tenured teacher who had previously resigned and was then rehired into the same
position functionally withdrew his resignation, thus preserving his tenured status. Id. The case
does not speak to the status of formerly tenured employees who have resigned and were no
longer employed by the DOE. Moreover, Vaccaro was reversed on appeal, with the First
Department finding that the petitioner did not, in fact, regain his tenured status after his rehiring
because of his failure to comply with regulations governing the withdrawal of resignation and the
restoration of tenure. See Vaccaro v. Bd. of Educ. of City Sch. Dist., 139 A.D.3d 612 (N.Y. App.
Div. 1st Dep’t 2016). Vaccaro does not support Richardson’s position here, and instead suggests
that tenure status is not preserved but rather must be re-invoked (and even then, applies only
where an employee is rehired into the same position). Because that is not the case here,
Richardson’s resignation terminated her employment relationship with the DOE, not entitling her
to further procedural protections. See Matter of Cannon v. Ulster Cty. Bd. of Coop. Educ. Servs.,
155 A.D.2d 846, 847 (N.Y. App. Div. 3d Dep’t 1989) (“Petitioner’s voluntary and deliberate act
in allowing his retirement application to become effective constitutes clear and convincing
evidence that he intended to relinquish his position and forfeit his tenure rights.”).
Thus any claim made by Richardson that her due process rights were violated as a result
of the denial of procedural protections in connection with her placement on the Ineligible List
was waived by her voluntary retirement.
C.

Individual Defendants

Only the City Defendants have moved to dismiss. (Dkt. No. 16 at 3 n.1.) The Individual
Defendants, meanwhile, have not appeared in this action and the parties dispute whether they
have been properly served. (Id.; Dkt. No. 23.) However, the Court’s reasoning above as to the
claims against the City Defendants also forecloses the possibility of any viable due process claim

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against the Individual Defendants. As such, the federal claims against the Individual Defendants
are also dismissed.
D.

State Law Claims

Because Richardson fails to state a claim on her due process claim, which was the source
of federal jurisdiction, the Court declines to exercise supplemental jurisdiction over her state-law
claims. See 28 U.S.C. § 1367. (See Compl. ¶ 12.)
IV.

Conclusion
For the foregoing reasons, the motion to dismiss is GRANTED.
The Clerk of Court is directed to close the motion at Docket Number 14 and to close the

case.

SO ORDERED.
Dated: February 23, 2017
New York, New York
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J. PAUL OETKEN
United States District Judge

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