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November 12, 1997


William C. Conner, Senior United States District Judge.

The opinion of the court was delivered by: CONNER

Conner, Senior D.J.:

 The District now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, the District's motion is granted and the complaint is dismissed in its entirety.


 In the fall of 1991, after the school year had begun, a part-time teaching position opened up in the English Department of the Newburgh Free Academy ("NFA"). Upon learning of this vacancy, the District's Superintendent of Schools, Dr. Phillip Leahy, recommended Richardson for the position. At Leahy's urging, Richardson interviewed with Michael Mattausch, the District's Director of Language Arts, and Ronald Shapiro, NFA's principal at the time. Both Mattausch and Shapiro recommended her hiring to Leahy, who in turn recommended Richardson to the District's Board of Education. On October 30, 1991, the Board approved Richardson's appointment, effective September 30, 1991.

 At the conclusion of the 1991-1992 school year, Richardson's part-time position was eliminated. However, Leahy, Mattausch and Shapiro determined that an additional, full-time position for an Advanced Placement English teacher needed to be created at NFA. Impressed with Richardson's employment background -- in particular, her twenty years of experience as an AP English teacher in the Albany school system, her background in curriculum development, and her experience as an AP English examination developer -- Leahy and Shapiro decided that Richardson was ideally suited for the new position. *fn1"

 Accordingly, even before the job opening was posted, Shapiro wrote a letter to the Board recommending Richardson for the position. When the job description was posted on July 29, 1992 (the day after Shapiro's written recommendation), the desired qualifications -- previous experience in AP English and curriculum development -- squarely matched those of Richardson. On July 30, Richardson applied for the position and was promptly hired as a probationary, full-time English teacher, effective September 1, 1992.

 Richardson's hiring was in spite of the District's collective bargaining agreement with the Newburgh Teachers Association (the "NTA"), which provided that "seniority in the District shall be a significant factor in filling open positions." (Collective Bargaining Agreement, Art. VIII § B.3, attached as Exh. A to Mattausch Aff.) As a result of this provision, Richardson was the first person in over twenty years to be hired into the NFA English Department without prior full-time teaching experience in the District.

 In her first year at NFA, Richardson was given coveted assignments despite her probationary status. She taught two high-level courses, AP English and Multicultural Literature. She was appointed to serve on curriculum-revision committees and on the District's Minority Recruitment Committee, and was approved to attend several conferences. Richardson received favorable annual reviews from Director Mattausch.

 On May 7, 1993, three days before the AP English examination, Richardson distributed to her AP English students several unreleased examination questions. Richardson obtained these "live" questions while employed as a test developer by Educational Testing Service ("ETS"), a company that prepares the AP English examination for administration by the College Board. At some point during her employment at ETS, Richardson photocopied portions of the draft examinations. Although Richardson contends that she was permitted to copy these materials in order to work at home, her retention of "live" materials after her employment with ETS ended was a clear violation of her ETS Employee Agreement.

 As it turned out, the ETS materials that Richardson distributed to her students appeared on the May 10, 1993 AP English examination. Shortly after the May 10 exam, NFA's other AP English teacher, Katherine Denman, was informed by some of her students that Richardson's AP English students had received an advantage on the exam because Richardson had given them materials that appeared on the exam. One of Richardson's students, Richard Sanders, Jr., showed Denman the ETS materials that Richardson had given him. Denman did not recognize the materials as those released by the College Board for public use, and notified Director Mattausch.

 Mattausch confirmed with ETS that only three AP English exams had been released and that other exams were not released because their passages or questions could reappear on later exams. Mattausch, Principal Shapiro, and Vice-Principal Thomas Fogarty decided to randomly select three students from Denman's class (without her knowledge) and have them review the materials obtained from Sanders. Each student individually identified the same passages and questions from these materials as having appeared on the May 10 exam. At that point, the District Administration Offices were notified of the problem.

 On June 14, Richardson was summoned to meet with several school officials -- Superintendent Leahy, Assistant Superintendent William Swart, then-Assistant (now Associate) Superintendent Vincent Hamlin, Deputy Superintendent Pizzo, Vice-Principal Fogarty,and Director Mattausch. The president of the NTA, Frank Colone, attended the meeting with Richardson. Richardson acknowledged that she had distributed the materials at issue to her students twice, once in the fall and once three days before the May 10 exam. Although Richardson was unable to explain clearly how she could have handed out "live" examination material -- she apparently did not even mention her access to such materials as an ETS employee -- she steadfastly denied that this security breach was intentional. *fn2"

 Following this meeting, the District notified ETS of the incident. Eventually, the three students from Richardson's AP English class who had taken the May 10 exam, including Richard Sanders, Jr., were given the choice of either retaking the compromised portion of the exam, receiving a pro rata score excluding that portion, or canceling the exam altogether.

 By mid-July, after several communications with ETS, Mattausch and Fogarty recommended to Superintendent Leahy that Richardson be terminated from her probationary position. Leahy took up the issue with District administrators Swart, Hamlin, and Pizzo. They unanimously agreed that whether or not Richardson actually knew that the materials she distributed to her class might be on the May 10 exam, she exhibited poor judgment in retaining the materials and in distributing them without checking to see whether the passages and questions appeared on released exams.

 Leahy then notified Richardson in a September 2 letter that the District's Board of Education would be meeting on October 5 to consider his recommendation that she be terminated. By letter dated September 10, Richardson requested the reasons for Leahy's recommendation. In a response dated September 29, Leahy wrote:

My reasons are based upon consideration of extremely poor judgment exhibited by you when you revealed questions to Advanced Placement English students at the Newburgh Free Academy which comprised part of the Educational Testing Service's 1993 AP English examination.

 (Leahy Aff. Exh. U.) Leahy invited Richardson to submit a written response to his September 29 letter and assured Richardson that the Board would consider her response. Richardson did not respond to Leahy's letter.

 Even before receiving Leahy's explanatory letter, Richardson submitted a resignation letter to Leahy dated September 28 in which she complained of a "lack of understanding, competence, and humanism." (Leahy Aff. Exh. Y.) The terms of the resignation were negotiated by attorneys for the District and the NTA and are reflected in a September 30 letter countersigned by Richardson. (See Leahy Aff. Exh. X.)

 On October 5, 1993, the Board of Education met to consider Richardson's resignation. Two of the eight Board members at the meeting were African-American. One of those two, Elaine Magwood, suggested that the Board should consider less harsh alternatives, such as extending Richardson's probationary period or prohibiting future AP assignments. Magwood also expressed her opinion that the Board's actions may have been influenced by the fact that one of the three affected students (Richard Sanders, Jr.) was the son of a Board member. The Board voted, 6-2, to accept Richardson's resignation. The dissenting votes were cast by the two African-American members of the Board. (See Minutes of the Board's Oct. 5, 1993 Meeting, Leahy Aff. Exh. AA.)

 On the following day, Mattausch called a meeting of the NFA faculty and advised them that Richardson had provided her students with questions from an unreleased AP English exam, that the unreleased materials had been obtained by Richardson when she worked at ETS, that three students were penalized as a result of the improper disclosure, that Richardson had been given the option of resigning, that she had chosen that option, and that the Board of Education had accepted her resignation the prior evening. (Mattausch Aff. P 37 & Exh. G.) Mattausch states that he called this meeting in response to several rumors that were circulating around NFA concerning Richardson's absence, (id. ; Def. 3(g) Statement P 87), which Richardson generally denies (Pl. 3(g) Statement P 87).


 I. Summary Judgment Standard

 Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(d). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and ...

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