Murray v. Williamsville Central School District
DECISION AND ORDER -- IT HEREBY IS ORDERED, that Defendant's Motion to Dismiss (Docket No. 11) is GRANTED. FURTHER, the Clerk of Court is DIRECTED to close this case. SO ORDERED. Signed by William M. Skretny, United States District Judge on 4/26/2021. (JCM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICK F. MURRAY,
DECISION AND ORDER
WILLIAMSVILLE CENTRAL SCHOOL
This is a civil rights action under 42 U.S.C. § 1983 and New York State Human
Rights Law, N.Y. Exec. Law §§ 296-301, from the suspension of a middle school teacher
for allegedly showing pornographic film to his students. Plaintiff, teacher Patrick Murray,
alleges Defendant, his employer, the Williamsville Central School District, deprived him
of his liberty interest in his reputation and free speech rights as well as claims for sex and
age discrimination under the New York State Human Rights Law (Docket No. 1, Compl.).
Before this Court is Defendant’s Motion to Dismiss (Docket No. 11). For reasons
stated herein, that Motion is granted.
In September 1990, Defendant hired Plaintiff as a middle school teacher (Docket
No. 1, Compl. ¶ 5). Plaintiff was over 40 years old and worked for Defendant for 28 years
(id. ¶¶ 1, 6-7, 40, 41, 12, 29). The Complaint does not allege where this incident occurred,
but Defendant Williamsville Central School District produced the principal of the Casey
Middle School in support of its Motion to Dismiss (Docket No. 11, Def. Atty. Decl. Ex. C,
Aff. of Peter Dobmeier ¶ 2).
Plaintiff alleges three causes of action from Defendant’s management of
accusations against Plaintiff that he showed pornography to his middle school students
(id. ¶¶ 10-24, 27-37, 40-43, 44-49). Plaintiff claims he was falsely accused of showing
his students 20 minutes of pornography during class (id. ¶ 43; see id. ¶ 14). Several
students allegedly grossly defamed Plaintiff by publicizing the allegation on social media
(id. ¶ 42). Defendant suspended Plaintiff based on this accusation (id. ¶¶ 13, 30, 45).
These allegations impugned Plaintiff’s reputation and implied that he was a sex offender
(id. ¶¶ 15-16, 44), grossly impugning his good name and reputation (id. ¶ 17). Defendant
instructed Plaintiff not to speak of the allegations (id. ¶¶ 18, 31, 46 (ordered to maintain
confidentiality)). Defendant then made an official statement to the parents and the public
that Plaintiff believes accepted the accusers’ version of events (id. ¶¶ 19, 32, 47), praising
the students who brought the allegations (id. ¶¶ 20, 33). Defendant also took no action
to stop the students’ social media usage regarding these allegations (id. ¶¶ 21, 34).
For each cause of action, Plaintiff claims a loss of income, fear, anxiety, severe
humiliation, shame, embarrassment, emotional pain and suffering, loss of savings, and
loss of enjoyment of life (id. ¶¶ 24, 37, 54). He seeks to recover compensatory damages
for these lost wages and benefits, pain, suffering, unreimbursed medical costs, punitive
damages, and attorneys’ fees and costs (id. WHEREFORE Clause, at 7).
The First Cause of Action alleges violation of 42 U.S.C. § 1983 by unlawful
deprivation of Plaintiff’s liberty interest (id. ¶¶ 9-24), specifically in his good name and
reputation (id. ¶ 10 & n.1, citing Jenkins v. McKeithen, 395 U.S. 411, 423-24, 89 S.Ct.
1843, 23 L.Ed.2d 404 (1969)). This Court notes that in his Third Cause of Action, Plaintiff
also stated he had 28 positive annual reviews by Defendant (id. ¶¶ 50-51). Plaintiff
contends Defendant was a public employer (id. ¶ 11; see also id. ¶ 28 (Second Cause of
Action)). He alleges that Defendant’s actions were under color of law (id. ¶¶ 22, 23; see
also id. ¶¶ 35-36 (Second Cause of Action)).
The Second Cause of Action alleges violation of § 1983 by unlawful deprivation of
Plaintiff’s free speech rights (id. ¶¶ 26-37), in Defendant’s order that Plaintiff not comment
about the allegations (id. ¶ 31).
The Third Cause of Action alleges violation of the New York State Human Rights
Law for discrimination based on sex and age (id. ¶¶ 39-54). Here, Plaintiff repeats that
he is over 40-year-old male, alleging that he is in two protected classes (id. ¶¶ 40-41, 39).
He claims the false accusation and Defendant’s reactions to it as an adverse action under
the Human Rights Law (id. ¶¶ 42-49, 39). Plaintiff claims that the handling of the
allegations created a hostile work environment (id. ¶ 48). Plaintiff claims age bias,
asserting that a younger teacher showed R-rated movies to his class without any
punishment (id. ¶ 53). Although Plaintiff alleges sex discrimination, he has not alleged
any discrimination based on sex.
Defendant moved to dismiss (Docket No. 11) 1. In support thereof, Defendant
submits the Affidavit of Defendant’s Assistant Superintendent for Human Resources John
McKenna (Docket No. 11, Def. Atty. Decl. Ex. B ¶ 1). McKenna reports that Plaintiff
support of Defendant’s Motion to Dismiss, Docket No. 11, Defendant submitted its attorney’s
Declaration with exhibits (including the Affidavits of Assistant Superintendent John McKenna, Ex. B; Peter
Dobmeier, Ex. C) and Memorandum of Law, id.; and its Reply Memorandum, Docket No. 18. In opposition,
Plaintiff submits his Memorandum of Law, Docket No. 17. He then sought leave to supplement his
opposition with the Second Circuit’s decision, Menaker v. Hofstra Univ., 935 F.3d 20 (2d Cir. 2019), Docket
No. 19. This Court granted leave to supplement and ordered any response to be submitted by December 2,
2019, Docket No. 20. Defendant submitted its timely opposition to the supplement, Docket No. 22.
inadvertently played a film clip that depicted nudity that led to Defendant’s sanction (id.,
Ex. B ¶¶ 3-4). McKenna and Principal Peter Dobmeier dispute Plaintiff’s conclusion that
he was treated differently in his discipline than other teachers (id., Ex. B ¶ 5, Ex. C,
Dobmeier Aff. ¶ 3-7).
Dobmeier, the Principal at Casey Middle School (id., Ex. C ¶ 2), explained the
procedure used by the other teacher who showed R-rated movies to his class (id., Ex. C).
That teacher first obtained signed permission slips from parents before showing the Rrated film as part of the curriculum and pursuant to Defendant’s policies (id. ¶¶ 3-5).
Dobmeier mentions one instance in which that teacher failed to submit permission slips
and the result of the film being edited to avoid potentially offensive material; that teacher
was reprimanded for not following procedure in seeking parental permission (id. ¶ 6).
Dobmeier concludes that if any teacher failed to obtain signed permission slips and then
showed an unedited R-rated movie to students that teacher would face discipline (id. ¶ 7).
Defendant alleges that Plaintiff entered into a Disciplinary Agreement with
Defendant and the Williamsville Teachers’ Association for this incident and served a fiveday suspension without pay (Docket No. 11, Def. Memo. at 2).
employed by Defendant (id.; see also Docket No. 1, Compl. ¶ 52).
Originally, responses to Defendant’s Motion to Dismiss (Docket No. 11) were due
by August 30, 2019, and any reply by September 6, 2019 (Docket No. 12). The parties
stipulated to extend these deadlines (Docket No. 13) and this Court ordered responses
to be due by September 13, 2019, and reply by September 20, 2019 (Docket No. 16).
The Motion to Dismiss then was deemed submitted without oral argument.
A. Applicable Standards
1. Motion to Dismiss
Defendant moves to dismiss on the grounds that the Complaint fails to state a
claim for which relief cannot be granted (Docket No. 11). Under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, this Court cannot dismiss a Complaint unless it appears
“beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957). As the Supreme Court later held in Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a Complaint must be dismissed pursuant
to Rule 12(b)(6) if it does not plead “enough facts to state a claim to relief that is plausible
on its face,” id. at 570 (rejecting longstanding precedent of Conley, supra, 355 U.S. at 4546).
To survive a motion to dismiss, the factual allegations in the Complaint “must be
enough to raise a right to relief above the speculative level,” Twombly, supra, 550 U.S. at
555. As reaffirmed by the Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009),
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ [Twombly, supra, 550 U.S.] at 570 . . . . 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.
Id., at 556 . . . . The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’ Id., at 557 . . . (brackets
Iqbal, supra, 556 U.S. at 678 (citations omitted).
A Rule 12(b)(6) motion addresses the face of the pleading. The pleading is
deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any
document incorporated in it by reference. Goldman v. Belden, 754 F.2d 1059 (2d Cir.
In considering such a motion, the Court must accept as true all the well pleaded
facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass,
754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general
legal conclusions necessary to prevail on the merits and are unsupported by factual
averments will not be accepted as true. New York State Teamsters Council Health and
Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123 (N.D.N.Y. 2002).
2. Fourteenth Amendment and Stigma-Plus
The Second Circuit in Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004),
“Section 1983 of Title 42 provides that ‘every person who, under color of
[state law] subjects . . . any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the [United States]
Constitution and laws, shall be liable to the party injured.’ 42 U.S.C. § 1983.
The Due Process Clause of the Fourteenth Amendment requires that,
generally, a person must be afforded the opportunity for a hearing prior to
being deprived of a constitutionally protected liberty or property interest.
U.S. Const. amend XIV, § 1; Board of Regents v. Roth, 408 U.S. 564, 569–
70 & n. 7, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).”
Patterson, supra, 370 F.3d at 329.
For an employee’s claim of violation of his or her due process rights,
“A two-step inquiry is required to determine whether a plaintiff has suffered
a violation of his due process rights in the employment context. See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84
L.Ed.2d 494 (1985). First, the court must determine whether a protected
property or liberty interest exists. Id. Second, the court must consider
whether the government deprived plaintiff of that protected interest without
due process. Id.; see also Narumanchi v. Bd. of Tr. of Connecticut State
Univ., 850 F.2d 70, 72 (2d Cir.1988).”
Munno v. Town of Orangetown, 391 F. Supp.2d 263, 269 (S.D.N.Y. 2005). An example
of additional deprivation for a stigma plus claim is the deprivation of a plaintiff’s property,
such as termination of government employment, Sadallah v. City of Utica, 383 F.3d 34,
38 (2d Cir. 2004).
3. Free Speech
The Second Cause of Action alleges infringement of a public employee’s free
speech rights. “A State cannot condition public employment on a basis that infringes the
employee's constitutionally protected interest in freedom of expression.” Connick v.
Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). As later noted by the
“‘the unchallenged dogma was that a public employee had no right to object
to conditions placed upon the terms of employment—including those which
restricted the exercise of constitutional rights.’ Connick, 461 U.S., at 143,
103 S.Ct. 1684. That dogma has been qualified in important respects. See
id., at 144–145, 103 S.Ct. 1684. The Court has made clear that public
employees do not surrender all their First Amendment rights by reason of
their employment. Rather, the First Amendment protects a public
employee's right, in certain circumstances, to speak as a citizen addressing
matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (cited
cases omitted). The Court recognized that “when a citizen enters government service,
the citizen by necessity must accept certain limitations on his or her freedom,” id. at 418
Infringement of speech within the public employment context, however, requires
an allegation that the infringed speech involved matters of public interest, Garcetti, supra,
547 U.S. at 417-18; Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731,
20 L.Ed.2d 811 (1969). One test to determine whether the employee’s First Amendment
rights were violated by a public employer suppressing speech is “whether the employee
spoke as a citizen on a matter of public concern,” Pickering, supra, 391 U.S. at 568. Even
matters of public concern may be restricted by the public employer if that speech involves
the public entity’s operations, Garcetti, supra, 547 U.S. at 419. “A government entity has
broader discretion to restrict speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that has some potential to affect the
entity's operations,” Garcetti, supra, 547 U.S. at 418.
Personal grievances that do not also touch upon issues of importance to the public
are not actionable as violations of the public employee’s First Amendment rights in a
§ 1983 action, Ruotolo, supra, 514 F.3d at 189.
4. New York State Human Rights Law
New York State Human Rights Law has the same burden of proof and burden
shifting from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), for Title VII claims, Cruz v. Coach Stores, Inc., 202 F.3d 560, 565
n.1 (2d Cir. 2000); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 n.3,
786 N.Y.S.2d 382, 391 n.3 (2004). Under the McDonnell Douglas and Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981), analysis applied under the Human Rights Law, Plaintiff bears the burden of
demonstrating that age or sex was a motivating factor in her adverse employment action,
McDonnell Douglas, supra, 411 U.S. at 802-04; Burdine, supra, 450 U.S. at 252-56; e.g.,
Ferrante v. American Lung Ass’n, 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 28-29 (1997)
(age discrimination) (see Docket No. 11, Def. Memo. at 7); Malinowski v. New York State
Div. of Human Rights on Complaint of Malinowski, 58 Misc.3d 926, 929-30, 67 N.Y.S.3d
382, 385 (Sup. Ct. Albany County 2016) (sex discrimination). He then must prove that
an inference of discrimination where direct evidence is lacking leading to an application
of the burden of proof shifting standard of McDonnell Douglas. Under that standard,
Plaintiff bears the burden of establishing a prima facie case of discrimination, Burdine,
supra, 450 U.S. at 252-54; McDonnell Douglas, supra, 411 U.S. at 802. He must prove
the prima facie case by a preponderance of the evidence, Burdine, supra, 450 U.S. at
252-53. Minimally, Plaintiff needs to present factual allegations of his claims, Nicolo v.
Citibank N.Y.S., N.A., 147 Misc.2d 111, 115-16, 554 N.Y.S.2d 795, 799 (Sup. Ct. Monroe
If Plaintiff meets this initial burden, the burden shifts to Defendant to articulate
some legitimate, nondiscriminatory reason for its action, id. at 254-56. If that has been
met, the burden shifts back to Plaintiff to show, beyond the prima facie case, that
Defendant’s determination was the result of discrimination, id. at 256; see McDonnell
Douglas, supra, 411 U.S. at 804-05. “The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff,” Burdine, supra, 450 U.S. at 253. As noted by the Burdine Court, the
McDonnell Douglas evidentiary burden shifting “serves to bring the litigants and the court
expeditiously and fairly to this ultimate question,” id., or as later held in the TWA case,
“that the ‘plaintiff [has] his [or her] day in court despite the unavailability of direct
evidence,’” TWA, supra, 469 U.S. at 121 (quoting Loeb v. Textron, Inc., 600 F.2d 1003,
1014 (1st Cir. 1979)) (alterations added).
To support a prima facie case of age discrimination under the Human Rights Law,
“plaintiff must demonstrate (1) that he is a member of the class protected
by the statute; (2) that he was actively or constructively discharged; (3) that
he was qualified to hold the position from which he was terminated; and (4)
that the discharge occurred under circumstances giving rise to an inference
of age discrimination (see, e.g., McDonnell Douglas Corp. v. Green,
411 U.S., at 802, 93 S.Ct., at 1824; Woroski v. Nashua Corp., 31 F.3d 105,
108 [2d Cir.1994] ).”
Ferrante, supra, 90 N.Y.2d at 629, 665 N.Y.S.2d at 28-29 (see Docket No. 1, Compl.
Plaintiff claims he endured a hostile work environment (Docket No. 1, Compl. ¶ 48).
To allege a prima facie claim of a hostile work environment under the Human Rights Law,
Plaintiff needs to allege “‘the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment’” (Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295  [citations and internal
quotation marks omitted] ),” Forrest, supra, 3 N.Y.3d at 310, 786 N.Y.S.2d at 394. As
noted by the New York State Court of Appeals in Forrest,
“Whether an environment is hostile or abusive can be determined only by
looking at all the circumstances, including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; *311 and whether it
unreasonably interferes with an employee's work performance. The effect
on the employee's psychological well-being is, of course, relevant to
determining whether the plaintiff actually found the environment abusive”
([Harris, supra, 510 U.S.] at 23, 114 S.Ct. 367).”
Forrest, supra, 3 N.Y.3d at 310, 786 N.Y.S.2d at 394.
5. Supplemental Jurisdiction
Subject matter jurisdiction over the state law claims (such as the Third Cause of
Action) may be raised by the parties or by this Court sua sponte, Lyndonville Sav. Bank
& Trust v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000); LaChapelle v. Torres, 37 F. Supp.
3d 672, 680 (S.D.N.Y. 2014). This Court must examine its jurisdiction at any point in the
proceeding, Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614,
98 L.Ed.2d 720 (1988) (the district court has “to consider throughout the litigation whether
to exercise its jurisdiction over the case”); see 14C Charles A. Wright, Arthur R. Miller,
Edward H. Cooper, Joan E. Steinman, and Mary Kay Kane, Federal Practice and
Procedure § 3722, at 115 (Jurisd. rev. 4th ed. 2018). This Court, in its discretion under
28 U.S.C. § 1367(c), may decline to hear supplemental state law claims, United Mine
Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (“pendent
jurisdiction is a doctrine of discretion, not of plaintiff’s right”); 13 Charles A. Wright, Arthur
R. Miller, Edward H. Cooper, and Richard Freer, Federal Practice and Procedure
§ 3523.1, at 195 (Jurisd. 2008); 13D Charles A. Wright, Arthur R. Miller, Edward H.
Cooper, and Richard Freer, Federal Practice and Procedure § 3567.3, at 397, 399-400
(Jurisd. 2008); see also 14C Federal Practice and Procedure, supra, § 3722, at 122
(removal). This Court thus has to consider “judicial economy, convenience and fairness
to litigants” in deciding whether to exercise supplemental jurisdiction, Gibbs, supra, 383
U.S. at 726, and this Court should avoid “needless decisions of state law, 13 Federal
Practice and Procedure, supra, § 3523.1, at 196.
Original federal jurisdiction here arises from Plaintiff’s First and Second Causes of
Action under 42 U.S.C. § 1983. The Third Cause of Action under the New York State
Human Rights Law share the same nucleus of operative facts as his federal civil rights
claims. Under 28 U.S.C. § 1367, this Court may exercise supplemental jurisdiction over
Plaintiff’s state law claims, see Klein v. London Star Ltd., 26 F. Supp. 2d 689, 692
(S.D.N.Y. 1998). Under § 1367(c), this Court may still decline to exercise supplemental
jurisdiction if the state law claims predominate over the original jurisdiction claims, if all of
the original jurisdiction claims are dismissed, or, “in exceptional circumstances, there are
other compelling reasons for declining jurisdiction,” 28 U.S.C. § 1367(c)(2), (3), (4); see
Klein, supra, 26 F. Supp. 2d at 692. District Courts in the Second Circuit should retain
supplemental cases when none of the § 1367(c) factors apply, Treglia v. Town of Manlius,
383 F.3d 713, 723 (2d Cir. 2002); see 13D Federal Practice and Procedure, supra,
§ 3567.3, at 402.
B. Parties’ Contentions
Defendant first argues that Plaintiff fails to allege any tangible interest for the First
Cause of Action (id., Def. Memo. at 4-5). Defendant cites the Second Circuit’s decision
in Patterson v. City of Utica, 370 F.3d 322, 329-30 (2d Cir. 2004) (id. at 4), that interest in
one’s reputation alone “apart from a more tangible interest, is not a liberty or property
interest sufficient to create . . . a cause of action under Section 1983.”
There, Patterson alleged stigmatizing statements by the Mayor of Utica as well as
Patterson’s termination from employment with the City, id. at 327.
repeatedly appointed and then fired as Commissioner of Public Works by the Mayor, first
by Mayor Edward Hanna and then (after Hanna resigned) by Mayor Timothy Julian, who
later made the allegedly defamatory statement. Under the Utica City Charter, the Mayor
exclusively has the authority to hire and fire (with or without cause) Commissioners, with
Commissioners expected to serve two-year terms coterminous with the Mayor. Id. at 328.
The jury found defendants made stigmatizing statements against Patterson, id. at 329.
The Second Circuit found that “when dealing with loss of reputation alone, a state
law defamation action for damages is the appropriate means of vindicating that loss.
[Paul v. Davis, 424 U.S. 693, 701–02, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)]; [Morris v.
Lindau, 196 F.3d 102, 114 (2d Cir. 1999)],” Patterson, supra, 370 F.3d at 330. Further,
“loss of one’s reputation can, however, invoke the protections of the Due
Process Clause if that loss is coupled with the deprivation of a more tangible
interest, such as government employment. [Board of Regents v. Roth,
408 U.S. 564, 572–73, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1976)]; Valmonte v.
Bane, 18 F.3d 992, 999 (2d Cir.1994). For a government employee, a
cause of action under § 1983 for deprivation of a liberty interest without due
process of law may arise when an alleged government defamation occurs
in the course of dismissal from government employment. Roth, 408 U.S. at
573, 92 S.Ct. 2701; Morris, 196 F.3d at 114. This type of claim is commonly
referred to as a ‘‘stigma-plus’’ claim. Id.”
Patterson, supra, 370 F.3d at 330. In order to fill the requirements for stigma-plus claim
is to allege a public stigmatizing statement made with the employee’s termination, id.
(quoting Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 446 (2d Cir.
1980)). Due process then requires the successful stigma-plus claimant get the remedy
of a post-deprivation opportunity to clear his name, id.
Defendant now argues that suspension of employment without termination is not
the “plus” to assert a “stigma-plus” claim (Docket No. 11, Def. Memo. at 4), Munno v.
Town of Orangetown, 391 F. Supp.2d 263 (S.D.N.Y. 2005).
Defendant next contends that Plaintiff has not alleged that he was prohibited from
speaking about a matter of public concern, thus failing to allege the free speech claim in
the Second Cause of Action (id. at 5-6).
As for the Third Cause of Action, Defendant argues that Plaintiff did not allege
sufficient facts to support an inference of discrimination, thus failing to state a New York
State Human Rights Law claim (id. at 6-9). Defendant points out that Plaintiff failed to
allege facts to rise an inference of sex discrimination (id. at 7). Defendant contends that
Plaintiff alleged only “one threadbare, conclusory allegation” of age discrimination based
upon his treatment as compared with a younger teacher who showed an R-rated film (id.
at 8). Defendant denies that the allegation regarding the younger teacher was correct
(id.; id., Dobmeier Aff. ¶¶ 4-5). Defendant argues that Plaintiff has not alleged any
adverse action (id., Def. Memo. at 8).
2. Plaintiff’s Response
Plaintiff included citations in his Complaint. There, he alleged in the First Cause
of Action violation of 42 U.S.C. § 1983 by unlawful deprivation of Plaintiff’s liberty interest
(Docket No. 1, Compl. ¶¶ 9-24), specifically in his good name and reputation (id. ¶ 10 &
n.1, citing Jenkins v. McKeithen, 395 U.S. 411, 423-24, 89 S.Ct. 1843, 23 L.Ed.2d 404
Plaintiff responds to the Motion to Dismiss that Iqbal and Twombly do not have a
heightened pleading requirement (Docket No. 17, Pl. Memo. at 1), Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“we do not
apply any ‘heightened’ pleading standard”).
Plaintiff argues the false allegation of a criminal matter is a matter of public
concern, contrary to defense argument (id. at 5). The allegations were defamatory (id.).
Plaintiff asserts he alleged tangible liberty and property interest in his reputation and in
his employment (id. at 6-8), contending that even a temporary deprivation is actionable
(id. at 6). Plaintiff distinguished Patterson on its procedural footing, that it was an appeal
following trial (id. at 7).
He argues that he was not given an opportunity to explain how the inappropriate
video was displayed, that he was playing an old VHS tapes that had been erased and
recorded over (id.). Plaintiff claims he had not seen the tape before he played it (id.).
Defendant then made an official statement praising the students who made the
allegations and ordered Plaintiff not to speak of the allegations to anyone upon pain of
further discipline (id. at 8). He cites Wisconsin v. Constantineau, 400 U.S. 433, 437,
91 S.Ct. 507, 27 L.Ed.2d 515 (1971), for upholding the due process requirement of notice
and an opportunity to be heard when a person’s good name, reputation, honor, or integrity
is at stake (id. at 8 n.26).
Plaintiff argues that Defendant has not applied the appropriate legal standard for
civil rights claim under McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973) (id. at 8-11). That case set forth the standard for Title VII rather
than 42 U.S.C. § 1983 or civil rights generally.
3. Defense Reply
In reply, Defendant did not argue that he was claiming a heightened pleading
standard (Docket No. 18, Def. Reply Memo. at 2, 3). Plaintiff, however, alleged bald
assertions of discrimination that are legally insufficient (id. at 2-5). Defendant denies that
the matter Plaintiff wished to speak about, his version of the allegations, was not a matter
of public concern and Plaintiff failed to plead that the matter was one of public concern
(id. at 5). Speech seeing personal grievance “must have a ‘broader public purpose’” to
be an actionable matter of public concern (id., quoting Ruotolo v. City of N.Y., 514 F.3d
184, 189 (2d Cir. 2008)). The Second Circuit in Lewis v. Cowen, 165 F.3d 154, 163-64
(2d Cir. 1999), and in Ruotolo, supra, 514 F.3d at 189, distinguished “whether the
employee’s speech was ‘calculated to redress personal grievances or whether it had a
broader public purpose,’” Ruotolo, supra, 514 F.3d at 189, quoting Lewis, supra, 165 F.3d
Defendant reiterates that Plaintiff failed to allege a stigma-plus claim for a liberty
interest (id. at 6-7). Defendant concludes that only the prima facie case of McDonnell
Douglas is applicable for this motion to dismiss (id. at 7-8). Defendant argues that Plaintiff
has not alleged facts to make a prima facie case (id.). Defendant also concludes that the
Complaint does not plausibly allege the contentions (id. at 5; see id. at 7-8).
4. Menaker, Plaintiff’s Supplemental Briefing, and Defendant’s
This Court granted Plaintiff leave to argue Menaker v, Hofstra University, 935 F.3d
20 (2d Cir. 2019) (Docket No. 20). In his motion for leave to supplement, Plaintiff argues
that Defendant framed his case that Defendant “fearing to seem unresponsive, took
student(s)’ allegation at face value, and accepted them as true without following
necessary due process procedures to protect Plaintiff’s reputation” (Docket No. 19, Pl.
Notice of Motion and Motion at 1). He claims that Menaker addressed that same issue,
“holding that they raised a plausible claim of discrimination” (id. at 1-2).
Defendant responded to this supplementation that Menaker is factually
distinguishable from the present case (Docket No. 22, Def. Memo. at 1-4). Plaintiff here
has not alleged the procedural irregularities asserted in Menaker (id. at 4).
These arguments merit a brief discussion of Menaker to distinguish that case from
the one at bar. In that case, plaintiff Jeffrey Menaker was the tennis coach at Hofstra
University. He was confronted by one of the women players claiming that his predecessor
promised her a full scholarship. Menaker investigated that claim, could not find the
representation, and denied the player’s claim. Months later, her family wrote to Hofstra
alleging that Menaker sexually harassed that player. Menaker, supra, 935 F.3d at 27.
Menaker denied this. Hofstra conducted a series of meetings with Menaker first accusing
him of sexual harassment and stating that the university would investigate; Menaker
supplied documents to Hofstra in his defense. Id. at 27-29. Weeks later, there was a
final meeting where Menaker was fired for unprofessional conduct, id. at 29. After filing
an EEOC charge, Menaker sued under Title VII. Hofstra moved to dismiss, and that
motion was granted, id., Menaker appealed. The Second Circuit vacated and remanded,
holding that Menaker sufficiently pled facts to allege a prima facie case of Title VII sex
discrimination, 935 F.3d at 26. This holding was based upon the district court in that case
misconstruing a Circuit precedent. The Second Circuit remanded for the district court to
consider whether Menaker alleged a “cat’s paw” theory, id.
The Second Circuit found the issue was whether Menaker alleged “circumstances
that provide at least minimal support for an inference of discriminatory intent,” 935 F.3d
at 31. The court then refer to its decision in Doe v. Columbia University, 831 F.3d 46 (2d
Cir. 2016), and concluding that the district court misapplied that precedent, Menaker,
supra, 935 F.3d at 31. The Second Circuit in Menaker rejected the district court’s “attempt
to limit Doe v. Columbia to cases where the public pressure on a university is particularly
acute,” 935 F.3d at 33. Doe v. Columbia, in turn, was also a Title VII action where the
Second Circuit held that plaintiff John Doe alleged a claim of sex discrimination for his
accusation that he was suspended as a student due to a sexual assault allegation
motivated by improper consideration of his sex, Doe v. Columbia Univ., supra, 831 F.3d
at 48; Menaker, supra, 935 F.3d at 31. As for the degree of public pressure on the
university, the Menaker court held that “when combined with clear procedural
irregularities in a university’s response to allegations of sexual misconduct, even minimal
evidence of pressure on the university to act based on invidious stereotypes will permit a
plausible inference of sex discrimination,” Menaker, supra, 935 F.3d at 33 (emphasis in
original) (see Docket No. 19, Pl. Notice of Motion and Motion at 2). The Second Circuit
“Doe v. Columbia stands for the general principle that where a university
(1) takes an adverse action against a student or employee, (2) in response
to allegations of sexual misconduct, (3) following a clearly irregular
investigative or adjudicative process, (4) amid criticism for reacting
inadequately to allegations of sexual misconduct by members of one sex,
these circumstances provide the requisite support for a prima facie case of
Plaintiff in this case cited to Menaker (and its discussion of Doe v. Columbia) as
an example of the “atmosphere of public pressure that informed [Hofstra’s] decisions”
(Docket No. 19, Pl. Notice of Motion and Motion at 2, citing Menaker, supra, 935 F.3d at
31-32, 33 (slip opinion, 18-3089-cv, at 15-17, 20).
Menaker and Doe v. Columbia, however, are not applicable here and is
distinguishable. Menaker was a Title VII action while Doe v. Columbia was a Title IX and
Title VII case. Murray here claims violations of other civil rights (property or liberty interest
in personal reputation and free speech), alleging state law claim for sex and age
discrimination under the New York State Human Rights Law. Plaintiff here only alleges
suspension (for an unknown duration or extent) and not a termination to allege a stigmaplus claim.
C. Reputation Alone as a Liberty Interest
The First Cause of Action alleges violation of 42 U.S.C. § 1983 by unlawful
deprivation of Plaintiff’s liberty interest (Docket No. 1, Compl. ¶¶ 9-24), specifically in his
good name and reputation (id. ¶ 10 & n.1, citing Jenkins v. McKeithen, 395 U.S. 411, 42324, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969)). This First Cause of Action turns upon whether
one’s reputation and good name by themselves is a liberty interest recognized under the
Due Process Clause. The United States Supreme Court has changed its position on this
For a due process violation, Plaintiff needs to allege a property or liberty interest
infringed by Defendant, Ware v. City of Buffalo, 186 F. Supp.2d 324, 331 (W.D.N.Y. 2001)
(Curtin, J.). As noted by the Second Circuit in reviewing the history of reputation as a
liberty interest under the Due Process Clause,
“Prior to Paul, the concept of ‘liberty’ in the Due Process Clause of the
Fourteenth Amendment appears to have been widely understood to
encompass a person's interest in his or her good name and reputation,
without more. See Laurence H. Tribe, American Constitutional Law § 10–9
(2d ed.1988). That principle seemed to be established by the Supreme
Court’s decision in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507,
27 L.Ed.2d 515 (1971).”
Doe v. Department of Public Safety ex rel. Lee, 271 F.3d 38, 51 (2d Cir. 2001). In 1976,
the Supreme Court “reoriented this precedent,” id. at 52.
The Supreme Court, in Paul v. Davis, 424 U.S. 693, 694, 721, 96 S.Ct. 1185,
47 L.Ed.2d 405 (1976), held that reputation or defamation, standing alone, does not raise
a liberty or property interest protected by the Fourteenth Amendment and could be
actionable under § 1983. There, plaintiff sued to challenge a police department practice
of publishing warning posters of persons suspected of shoplifting, id. at 695.
“The [Paul] Court acknowledged that it had ‘in a number of . . . prior cases
pointed out the frequently drastic effect of the ‘stigma’ which may result from
defamation by the government in a variety of contexts.’ Id. at 701, 96 S.Ct.
1155. But in each such case, the Paul Court reasoned, a liberty interest
was implicated only because the state had not only stigmatized the plaintiff,
but had also impaired or altered some other ‘more tangible interest[ ],’ such
as ‘a right or status previously recognized by state law.’ Id. at 701, 711,
96 S.Ct. 1155.”
Doe, supra, 271 F.3d at 53.
Then-Justice William Rehnquist for the majority in Paul rejected plaintiff’s
argument that any tort also is a Due Process Clause violation.
“It is hard to perceive any logical stopping place to such a line of reasoning.
Respondent’s construction would seem almost necessarily to result in every
legally cognizable injury which may have been inflicted by a state official
acting under “color of law” establishing a violation of the Fourteenth
Amendment. We think it would come as a great surprise to those who
drafted and shepherded the adoption of that Amendment to learn that it
worked such a result, and a study of our decisions convinces us they do not
support the construction urged by respondent.”
Paul, supra, 424 U.S. at 698-99.
Justice William Brennan (with Justices Byron White and Jenkins-author Thurgood
Marshall) dissented in part, arguing that this majority opinion in Paul abrogated Jenkins
without expressly overruling it, Paul, supra, 424 U.S. at 714, 724 (Brennan, J., concurring
in part, dissenting in part).
Therefore, with Paul’s rejection of Jenkins and the stand-alone reputation liberty
interest, loss of reputation is actionable as a liberty interest only if combined with another
deprivation. This would allege a stigma-plus claim, where the stigma alleged is the loss
of reputation and the plus is the other deprivation (such as the termination of
Plaintiff’s claims here, however, are for loss of his reputation without a recognized
due process violation, such as unlawful termination. Plaintiff was suspended but he does
not allege how long he was suspended. The Complaint does not state whether Plaintiff
was suspended as of the filing of the Complaint or the consequences arising from that
suspension (for example, whether it was without pay, loss of credit for retirement or tenure
purposes). The Complaint later alleges that Plaintiff remained employed by Defendant
(Docket No. 1, Compl. ¶ 52). It is not clear that this suspension is the equivalent to a
termination that would be the “plus” to allege an actionable stigma-plus claim from the
harm to his reputation. He therefore has not alleged the “plus” for the stigma-plus claim.
Defendant’s Motion to Dismiss (Docket No. 11) the First Cause of Action is
D. Free Speech
The Second Cause of Action alleges deprivation of Plaintiff’s freedom of speech
by his employer, a public entity, by Defendant ordering that he not discuss the accusation
(Docket No. 1, Compl. ¶¶ 27-28, 30-31, 36) while issuing a statement that accepted the
accusing students’ version of events (id. ¶¶ 32-34). Plaintiff also cites Jenkins in the
Complaint (id. ¶ 27, n.2) stating that free speech is a fundamental constitutional right.
While free speech is fundamental, speech by a public employee as controlled by
his employer depends whether the speech is on a matter of public interest or not. The
Complaint, however, does not allege a matter of public interest that Plaintiff was barred
to state by Defendant.
Defendant enjoined Plaintiff from discussing the pending
allegation against Plaintiff. His intended statements probably are his personal grievance
(that he was falsely accused, or a reasonable explanation existed for the showing), from
his alleged objection to Defendant released a statement adopting the accusers’ version
of events (cf. id. ¶¶ 32-34), and not on a matter of public interest. But this is speculative
because the Complaint does not allege what Plaintiff would have said.
Plaintiff contends that the false accusation that he was a criminal stated a matter
of public concern (Docket No. 17, Pl. Memo. at 5). He coupled the silencing by Defendant
with its affirmative adoption of his accusers’ version to somehow raise a public concern.
Again, the Complaint does not allege what Plaintiff would have said. It is whatever he
planned to say that asserts a matter of public interest not what Defendant does.
Although Plaintiff quotes Constantineau, supra, 400 U.S. at 437 (id. at 5 & n.20),
which refers to affixing a “badge of infamy” and due process requiring the accused having
the right to be heard to defend, the appellee in that case was not restricted from speaking.
Instead, the appellee in Constantineau lacked a forum to attack the accusation. In
Constantineau, supra, 400 U.S. at 434, pursuant to a state law against serving alcohol to
persons who “‘by excessive drinking’ produces described conditions or exhibits specified
traits, such as exposing himself or family ‘to want’ or becoming ‘dangerous to the peace’
of the community” (quoting Wisc. Stat. § 176.26), posted signs in the town’s liquor stores
identifying the appellee as one not to be served, id. at 435. The Court faulted this
Wisconsin posting law because it did not afford Constantineau the ability to respond to
the accusation of excessive drinking, id. at 437.
The objection to the statute was
procedural, that it lacked any method for redress, id. at 439. As later noted by the Court
in Paul, Constantineau focused on whether there was liberty interest under the Fifth and
Fourteenth Amendment Due Process Clauses against being defamed, Paul, supra,
424 U.S. at 702, 707.
The Second Cause of Action, however, does not allege a due process claim for
depriving Plaintiff of an opportunity to be heard. It merely alleges Plaintiff was placed on
suspension and ordered not to discuss the allegations. Even the First Cause of Action
asserting an infringed liberty interest does not seek a hearing to redress the accusation.
The condition and duration of the suspension, whether Plaintiff grieved or appealed the
suspension (or the silencing) are not alleged. The duration Plaintiff was to be silent also
was not alleged.
The First Amendment protects a public employee’s right to speak only on matters
of public interest and not on private grievances, Ruotolo, supra, 514 F.3d at 189. Plaintiff
has not asserted what he would have said, so it is not clear it would be matters of public
concern. Name clearing merely addresses private grievances. Plaintiff needs to assert
more than clearing his name to establish matters of public interest. Defendant as a public
employer may restrict the speech of its employees on operations of the school, see
Garcetti, supra, 547 U.S. at 418, 419, here restricting Plaintiff from comment on pending
Plaintiff failed to allege infringement on his First Amendment rights by Defendant
restricting his speech about the accusation. As such, Defendant’s Motion to Dismiss
(Docket No. 11) is granted. What remains is Plaintiff’s state law Third Cause of Action.
E. Supplemental New York State Human Rights Law Claims
The Third Cause of Action alleged here does not predominate over the federal
claims alleged in the First and Second Causes of Action. Defendant has not argued
All three causes of action arise from the same operative facts, Plaintiff’s
suspension as a middle school teacher due to showing a film in class. The only additional
allegations made in the Third Cause of Action asserts sex and age discrimination, while
the focus of the federal causes of action was on Plaintiff’s liberty interests and free speech
Upon the dismissal of the First and Second Causes of Action, the only alleging
original jurisdiction in this Court, this Court declines to exercise jurisdiction over Plaintiff’s
state law Third Cause of Action, 28 U.S.C. § 1367(c)(3), and those claims are dismissed
without prejudice, see 13D Federal Practice and Procedure, supra, § 3567.3, at 410 &
n.46 (citing cases); see also 28 U.S.C. § 1367(d) (toll of statute of limitations during
pendency of federal action); see 13 D Federal Practice and Procedure, supra, § 3567.3,
at 410-11, § 3567.4, at 458. This dismissal occurs prior to trial; thus the parties have little
invested in the supplemental claim, 13D Federal Practice and Procedure, supra, §3567.3,
at 429-31 (citing cases).
As a result, Defendant’s Motion to Dismiss this case (Docket No. 11) is granted,
although dismissal of the Third Cause of Action is without prejudice.
Plaintiff fails to allege deprivation of his liberty interest because he did not allege
another deprivation related to his claimed loss of reputation. He also failed to allege
violation of his free speech rights in that Plaintiff failed to allege a matter of public interest
in his personal grievance. This Court declines to exercise supplemental jurisdiction over
Plaintiff’s Third Cause of Action under the New York State Human Rights Law for sex and
age discrimination, dismissing that Cause of Action without prejudice.
IT HEREBY IS ORDERED, that Defendant’s Motion to Dismiss (Docket No. 11) is
FURTHER, the Clerk of Court is DIRECTED to close this case.
April 26, 2021
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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