Palmer v. Penfield Central School District et al
ORDER granting 9 defendant's Motion to Dismiss; granting in part 12 plaintiff's Motion to Amend or Correct. The first amended complaint 8 is dismissed, without prejudice to plaintiff's filing of a second amended complaint, asserting only a claim under Title VI, against the Penfield Central School District only. Plaintiff shall file her second amended complaint within 20 days after the entry of this Decision and Order. Signed by Hon. David G. Larimer on 1/22/13. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
PENFIELD CENTRAL SCHOOL DISTRICT,
DISTRICT SUPERINTENDENT JOHN CARLEVATTI,
Plaintiff Karen Palmer brings this action pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983, alleging that she was retaliated against by
defendants, the Penfield (New York) Central School District (“District”) and Penfield superintendent
John Carlevatti. Plaintiff alleges that in 2009, she was denied tenure and was compelled to resign
from her teaching position within the District, because of her advocacy on behalf of an AfricanAmerican student whom plaintiff had recommended for admittance to the District’s Kindergarten
Extending Education Program (“KEEP”).
Defendants have filed a motion to dismiss the complaint for failure to state a claim upon
which relief can be granted, under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. #9).
Plaintiff, who has amended the complaint once as of right (Dkt. #8), has cross-moved for leave to
“amend/correct her [amended] complaint” pursuant to Federal Rule 15 (Dkt. #12). The proposed
second amended complaint would add a claim for retaliation under Title VI, 42 U.S.C. § 2000d et
The first amended complaint (“FAC”) (Dkt. #8) alleges, and it is assumed to be true, that
Palmer was hired by the district as a kindergarten teacher in September 2006. During the 2008-09
school year, the District implemented KEEP, which provided an extended day program to the lowestperforming students in literacy development.
In the fall of 2008, some disagreement arose between plaintiff and school officials over
plaintiff’s recommendation that a particular student, “JK,” be admitted to KEEP. Plaintiff believed
that JK would be a good candidate for the program, but he was denied admission, purportedly due
to concerns over his “resistant behaviors” and his “strong knowledge of alphabetic principal [sic]
(knowledge of letter names and associated sounds).” FAC ¶¶ 19, 22.
Plaintiff first recommended JK for KEEP in October 2008, FAC ¶ 18, and apparently this
continued to be a source of friction between her and school officials throughout that academic year.
At a meeting on April 1, 2009, plaintiff allegedly voiced her concerns over the perceived “disparate
treatment of an African American student [JK] in a predominantly Caucasian school district.” FAC
¶ 46. The very next day, plaintiff was informed by school principal Terri Connell that plaintiff, who
was in the third year of her “probationary” period, would not be recommended for tenure. FAC ¶¶
15, 43. Connell allegedly told plaintiff that her decision was based on Connell’s belief that plaintiff
was “not providing developmentally appropriate activities for [her] students.” FAC ¶ 45.
In a letter to superintendent Carlevatti, plaintiff expressed her belief that the timing of
Connell’s announcement of her decision concerning plaintiff’s tenure, coming just one day after
plaintiff had spoken up about the alleged disparate treatment of an African-American student, was
suspect, and that it appeared that she was being retaliated against for her remarks at the April 1
meeting. FAC ¶ 46. Carlevatti apparently upheld Connell’s decision, however, and plaintiff “was
compelled to resign effective June 30, 2009 ... .” FAC ¶ 47.
The amended complaint alleges that plaintiff’s forced resignation was “in retaliation for
objecting to the disparate treatment of an African American student in a predominantly Caucasian
school district,” and that the District, “by and through the deliberate indifference of its final policy
maker, John Carlevatti, both created and maintained” a policy or practice of unconstitutional
retaliation. FAC ¶¶ 47, 48 (italics in original). Plaintiff also alleges that the District failed to
properly train and supervise its employees with respect to such retaliation. FAC ¶ 49.
Based on those allegations, plaintiff asserts two claims. The first, which is asserted only
against the District, alleges unlawful retaliation based on plaintiff’s opposition to unlawful
discrimination, in violation of Title VII. The second alleges that plaintiff was retaliated against for
having spoken out about an issue of public concern, in violation of the First Amendment to the
United States Constitution.1
The proposed second amended complaint is identical to the first, but adds a third cause of
action under Title VI. This proposed claim, which is also directed against the District only, is
essentially identical to the Title VII claim, but adds the allegation that the District was receiving
federal financial assistance at the time of the acts complained of. Dkt. #12-2 at 13, ¶ 61.
In their motion to dismiss, defendants contend that plaintiff’s Title VII claim fails because
she does not allege that she engaged in any activity protected by Title VII. Defendants argue that
plaintiff’s complaints concerning JK did not relate to an unlawful “employment practice,” which is
a prerequisite for a retaliation claim under Title VII.
Defendants next assert that plaintiff’s First Amendment claim fails because plaintiff’s
complaints about JK not being admitted to KEEP did not constitute speech about a matter of “public
concern,” but rather were uttered pursuant to plaintiff’s professional duties as a teacher. Defendants
also contend that the claims against Carlevatti should be dismissed because he is entitled to qualified
immunity. As to plaintiff’s proposed new claim under Title VI, defendants simply argue that the
The second cause of action refers to “defendant,” but it is not clear from the complaint
whether it is asserted against the District, Carlevatti, or both.
Court should not address the motion to amend until after it has decided defendants’ motion to
dismiss the Title VII and First Amendment claims.
I. Title VII Claim
“Title VII’s antiretaliation provision prohibits an employer from discriminating against an
employee for opposing any practice made unlawful by Title VII.” Rivera v. Rochester Genesee
Regional Transp. Auth., ___ F.3d ___, 2012 WL 6633938, at *9 (2d Cir. 2012) (citing Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59-60 (2006)). To establish a prima facie case
of unlawful retaliation under Title VII, “an employee must show that (1) she was engaged in
protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially
adverse action; and (4) there was a causal connection between the protected activity and that adverse
action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012).
“Protected activity” includes opposition to a discriminatory employment practice or
participation in any investigation, proceeding, or hearing under Title VII. See 42 U.S.C. §
2000e-3(a). Courts have repeatedly held, however, that a teacher’s complaints about alleged
discrimination directed against a student do not constitute opposition to an unlawful
employment practice. See, e.g., Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d
1178, 1183 (8th Cir. 1998) (teacher’s complaints that school principal had treated black student less
favorably than white student were not protected by Title VII); Trevino v. Austin Peay State Univ.,
No. 11-cv-1139, 2012 WL 951488, at *5 (M.D.Tenn. Mar. 19, 2012) (teacher’s complaints about
perceived discrimination in school’s financial aid practices related to school’s students, not to the
terms or conditions of employment of plaintiff or any other school employees, and therefore those
complaints did not support a Title VII retaliation claim); Comans v. Scott County School Dist.,
306CV505, 2010 WL 1780205, at *6 (S.D.Miss. Apr. 30, 2010) (“Comans cannot base a Title VII
retaliation claim on that purported complaint because the underlying conduct–discrimination against
a student–is not actionable under Title VII”); Kassera v. Independent School Dist. No. 11, No.
07-CV-2292, 2008 WL 4613747, at *4 (D.Minn. Oct. 15, 2008) (“Even if Kassera could establish
that she opposed discrimination against minority students, she would be unable to recover under
Title VII because such discrimination by a school is not ‘an unlawful employment practice’”); Holt
v. Lewis, 955 F.Supp. 1385, 1387-88 (N.D.Ala. 1995) (complaint about university’s discrimination
against a student did not involve an employment practice and thus any retaliation plaintiff suffered
for advocating that student’s rights was not prohibited by Title VII), aff’d, 109 F.3d 771 (11th Cir.
In the case at bar, plaintiff alleges only that she complained about what she perceived to be
disparate treatment of an African-American student. She does not allege that she complained about
unlawful discrimination directed against her, or any other District employee. This claim therefore
II. First Amendment Claim
In order to establish a First Amendment retaliation claim, plaintiff must prove that: (1) she
engaged in constitutionally protected speech because she spoke as a citizen on a matter of public
concern; (2) she suffered an adverse employment action; and (3) her speech was a “motivating
factor” in the adverse employment decision. Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d
Cir. 2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir. 2008) (per
The Supreme Court has sought “to arrive at a balance between the interests of the teacher,
as a citizen, in commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its employees.”
Pickering v. Board of Educ. of Township High School Dist. 205, 391 U.S. 563, 568 (1968). In
Garcetti v. Ceballos, 547 U.S. 410 (2006), however, the Court “narrowed [its] jurisprudence in the
area of employee speech by further restricting the speech activity that is protected.” Weintraub v.
Board of Educ. of City School Dist. of City of New York, 593 F.3d 196, 201 (2d Cir.) (quoting Reilly
v. City of Atl. City, 532 F.3d 216, 228 (3d Cir. 2008), cert. denied, 555 U.S. 1170 (2009)) (additional
internal quotation marks omitted), cert. denied, 131 S.Ct. 444 (2010). Specifically, Garcetti “h[e]ld
that when 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.” 547 U.S. at 421.
To state a facially valid First Amendment claim, then, a public employee must allege facts
which, if true, would show both that she spoke on a matter of public concern, and that she was
speaking as a “citizen,” rather than “pursuant to [her] official duties ... .” Ross v. Breslin, 693 F.3d,
300, 305 (2d Cir. 2012) (quoting Garcetti, 547 U.S. 421). See also Weintraub, 593 F.3d at 201
(holding that, by filing a grievance with his union to complain about his supervisor’s failure to
discipline a child in his classroom, teacher was speaking pursuant to his official duties and thus not
as a citizen, and stating that “[a]ccordingly, Weintraub’s speech was not protected by the First
Amendment, and there is no cause for us to address whether it related to a ‘matter of public
concern’”); Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009) (“If the court determines that the
plaintiff either did not speak as a citizen or did not speak on a matter of public concern, ‘the
employee has no First Amendment cause of action based on his or her employer’s reaction to the
speech’”) (quoting Garcetti, 547 U.S. at 418) (emphasis added); Nichik v. New York City Transit
Auth., No. 10-CV-5260, 2013 WL 142372, at *7 (E.D.N.Y. Jan. 11, 2013) (“If either of these
requirements is not met, then a First Amendment retaliation fails as a matter of law”).
“To determine whether speech was made ‘pursuant to’ one’s official job duties, it is
necessary to ascertain whether the speech at issue ‘owed its existence to [the plaintiff’s] job duties
and was made in furtherance of those duties.’” Looney v. Black, ___ F.3d ___, 2012 WL 6633949,
at *15 (2d Cir. 2012) (quoting Ross, 693 F.3d at 308). Applying that principle, the Second Circuit
has “held that a teacher’s complaints to a school board about the inadequate discipline of a disorderly
student were ‘part-and-parcel’ of his duties because they dealt with his ability ‘to maintain classroom
discipline, which is an indispensable prerequisite to effective teaching and classroom learning.’”
Looney, 2012 WL 6633949, at *15 (quoting Weintraub, 593 F.3d at 203) (citation and internal
quotation marks omitted in original).
In this case, plaintiff’s speech occurred during a “mandatory grade level meeting” attended
by “the entire District Kindergarten teachers,” along with “school Administrators Gene Mancuso and
Dr. Mark Miele.” FAC ¶ 39. During that meeting, plaintiff “voiced concern that she had referred
an African American student who was denied enrollment, and that this appeared to be disparate
treatment.” FAC ¶ 42.
Even drawing all reasonable inferences in plaintiff’s favor, that speech clearly was uttered
because of plaintiff’s job as a teacher, and in furtherance of her duties as a teacher. She was
speaking about a student whom she had recommended for KEEP, pursuant to her job duties, at a
meeting attended only by school and school district employees and officials.
The nonpublic nature of the speech does not necessarily mean that plaintiff did not speak “as
a citizen,” rather than as an employee. See Garcetti, 547 U.S. at 420 (“That Ceballos expressed his
views inside his office, rather than publicly, is not dispositive”). Nevertheless, expression of one’s
opinions to “[a] limited audience weigh[s] against [a] claim of protected speech.” Desrochers v. City
of San Bernardino, 572 F.3d 703, 714 (9th Cir. 2009). See also Hayes v. City of Newnan, No. 05CV-102, 2007 WL 2765555, at *37 (N.D.Ga. Sept. 20, 2007) (“Although the private setting of the
speech is not dispositive, it is one factor along with others that courts use in determining whether
speech involved a matter of public concern”) (citations omitted).
More to the point, however, plaintiff’s speech related to a matter that was directly connected
to, and arose out of, her duties as a teacher. She was not complaining about systemic discrimination,
but about the treatment of one particular student, whom she had suggested as a candidate for KEEP,
and for whom she apparently had continued to advocate throughout the 2008-09 school year.
But even assuming, arguendo, that plaintiff’s speech about JK did relate to a matter of public
concern, Garcetti made it clear that courts should not conflate the public-concern requirement with
the private-citizen requirement. A plaintiff must establish–and therefore must plead–both. If the
factual allegations show that the plaintiff was speaking pursuant to the duties of her job as a public
employee, rather than as a private citizen, the court need not even consider whether the subject of
her speech was a matter of public concern. See Weintraub, 593 F.3d at 201.
I conclude, then, that even accepting the truth of all of plaintiff’s factual allegations, she
spoke not as a private citizen, but pursuant to her duties as a public schoolteacher. Her First
Amendment claim must therefore be dismissed, and there is no need for the Court to determine
whether she spoke about a matter of public concern.
III. Proposed Title VI Claim
In her proposed amended complaint, plaintiff asserts a claim under Title VI, which provides,
inter alia, that “[n]o person in the United States shall, on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000(d).
Title VI does not contain an explicit anti-retaliation provision, but courts have generally
construed the statute as creating an implied private right of action for retaliation. See, e.g., Peters
v. Jenney, 327 F.3d 307, 318 (4th Cir. 2003); Hickey v. Myers, No. 09-CV-1307, 2010 WL 786459,
at *4 (N.D.N.Y. Mar. 2, 2010); Kimmel v. Gallaudet Univ., 639 F.Supp.2d 34, 43 (D.D.C. 2009);
Corrales v. Moreno Valley Unified School Dist., No. EDCV-08-00040, 2008 WL 4382507, at *4
(C.D.Cal. Aug. 29, 2008).
To state a claim for Title VI retaliation, a plaintiff must show: (1) participation in a protected
activity, that was known to the defendants; (2) adverse action by the defendants against the plaintiff;
and (3) a causal connection between the plaintiff’s protected activity and the defendants’ adverse
action. Peters, 327 F.3d at 320; Hickey, 2010 WL 786459, at *4. “As in other civil rights contexts,
to show ‘protected activity,’ the plaintiff in a Title VI retaliation case need ‘only ... prove that he
opposed an unlawful employment practice which he reasonably believed had occurred or was
occurring.’” Peters, 327 F.3d at 320 (quoting Bigge v. Albertsons, Inc., 894 F.2d 1497, 1503 (11th
Cir. 1990)). A substantive violation of Title VI occurs when “(1) ... there is racial or [other
prohibited] discrimination and (2) the entity engaging in discrimination is receiving federal financial
assistance.” Baker v. Board of Regents of State of Kansas, 991 F.2d 628, 631 (10th Cir. 1993).
The proposed amended complaint alleges that plaintiff “continuously complained of disparate
treatment of African American children in the Penfield School District,” and that after she
complained, she was denied tenure and compelled to resign, in retaliation for her complaints. Dkt.
#12-2 at 13 ¶ 63. Plaintiff also alleges that the District was receiving federal assistance at the time
of the alleged retaliation. Id. ¶ 61.
Although plaintiff’s factual allegations regarding the relevant events do not support her
assertion that she “continuously complained of disparate treatment of African American
children”–they show, rather, that on one occasion, she voiced a concern about the disparate treatment
of one particular student–the fact remains that she does allege that she complained about perceived
race discrimination by the District. Plaintiff further alleges that this protected activity was swiftly
followed by an adverse action: her denial of tenure. And she alleges that at the time, the District
was a recipient of federal funds.
The fact that plaintiff was not the target of the underlying discrimination does not defeat her
claim. The question is simply whether she opposed a practice that she reasonably believed violated
Title VI. Peters, 327 F.3d at 319. See, e.g., Hickey, 2010 WL 786459, at *4 (plaintiff who alleged
that he was removed from his post as dean at state university because of his complaints about racially
discriminatory admission policy sufficiently pleaded a cause of action for retaliation under Title VI);
Kimmel, 639 F.Supp.2d at 43 (“Kimmel’s alleged advocacy on behalf of minority students is a
protected activity sufficient to support a retaliation claim” under Title VI); Corrales, 2008 WL
4382507, at *4 (stating, with respect to plaintiff’s assertion “that she was retaliated against ... for
advocating for the educational rights of her students under Title VI,” that “[t]his is the very conduct
governed by Title VI’s anti-retaliation provisions”).
“In general, leave to amend is to be freely granted.” Amie v. Shinseki, 806 F.Supp.2d 641,
643 (W.D.N.Y. 2011) (citing Fed. R. Civ. P. 15(a)). Typically such a motion will not be denied
unless amendment would be futile, or where the proposed amendment is made in bad faith. Johnson
v. University of Rochester Med. Center, 686 F.Supp.2d 259, 270 (W.D.N.Y. 2010), appeal
dismissed, 642 F.3d 121 (2d Cir. 2011). No such showing has been made here. In fact, defendants’
opposition to plaintiff’s motion to amend does not even address the motion on its merits; defense
counsel simply states that the Court “should first address the pending legal challenges to Plaintiff’s
Title VII and First Amendment claims.” Decl. of Jeremy A. Colby (Dkt. #15) ¶ 6.
I conclude, then, that plaintiff should be permitted to amend her complaint to assert a claim
under Title VI. Plaintiff’s motion for leave to amend is therefore granted, as set forth in the
Conclusion to this Decision and Order.2
Defendants’ motion to dismiss the complaint (Dkt. #9) is granted. Plaintiff’s motion for
leave to file a second amended complaint (Dkt. #12) is granted in part. The first amended complaint
(Dkt. #8) is dismissed, without prejudice to plaintiff’s filing of a second amended complaint,
asserting only a claim under Title VI, against the Penfield Central School District only. Plaintiff
Since the proposed Title VI claim is asserted only against the District, plaintiff’s claims
against Carlevatti are dismissed in their entirety. Though this renders it unnecessary for the
Court to address Carlevatti’s argument that he is entitled to qualified immunity, I note that the
only specific factual allegations concerning Carlevatti are that plaintiff wrote him a letter in
which she “expressed her concerns” that she was being denied tenure for retaliatory reasons,
FAC ¶ 46, and that “it was the action of John Carlevatti himself, who upon notice of Plaintiff’s
complaints of ordered [sic] or condoned the Plaintiff’s termination in retaliation for [her
complaints].” FAC ¶ 49. It is doubtful whether those allegations, and plaintiff’s conclusory
allegation that Carlevatti displayed deliberate indifference to the retaliation against her, see FAC
¶¶ 48, 49, would suffice to state a claim against Carlevatti in any event.
- 10 -
shall file her second amended complaint within twenty (20) days after the entry of this Decision and
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 22, 2013.
- 11 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?