and canceled hearing dates, stem from the same retaliatory animus
that motivated Defendants' other improper actions. (Compl. ¶¶ 40,
41(a) & (b)).
Defendants argue that Ms. Falinski's claims are time-barred
because she had notice of any retaliatory motive once she became
aware of the alleged dilatory tactics; i.e., prior to
commencement of the hearings on May 19, 1994. However,
Plaintiff's delay-based claims reach beyond the delayed
commencement and encompass the allegedly dilatory manner in which
Defendants have taken over three years to present their case
against Ms. Falinski. Construing all reasonable inferences in
Plaintiff's favor, this Court finds that Ms. Falinski may not
reasonably have appreciated that a six-month delay in commencing
the hearings would necessarily result in a three-year hearing.
Ms. Falinski may be able to prove that she could not reasonably
appreciate the injuries she suffered until Defendants had
improperly prolonged her hearing for many months, let alone the
one month necessary to bring her claim within the statute of
limitations. Accordingly, I deny Defendants' motion for summary
judgment and dismissal of Plaintiff's third and fourth claims on
the grounds that they are time-barred.
(2) Fifth and Sixth Claims (The Lottery System)
The Board allocated seats for the public at the first pro
forma session of Ms. Falinski's Disciplinary Proceedings, on May
19, 1994, and at two subsequent sessions that summer. If
Defendants devised the Lottery System out of animus for
Plaintiff's free speech and due process rights, as Ms. Falinski
alleges, then the resultant injury became apparent on May 19,
1994, when the Lottery System first took effect. Any claim
concerning the Defendants' motive for instituting the Lottery
System accrued on that date. Ms. Falinski does not dispute
Defendants' contention that she never challenged the Lottery
System prior to this suit. Plaintiff's fifth and sixth claims are
Furthermore, even if Ms. Falinski's fifth and sixth claims were
timely, they are also dismissed on the merits because the facts
as pleaded do not reflect a violation of Plaintiff's
constitutional rights. It is hard to imagine how open hearings,
with provision for press attendance and random distribution of
seats to the public, infringed her rights to due process under
the Fourteenth Amendment. Plaintiff had no right to ensure the
attendance of particular members of the public at her hearing. It
trivializes the Due Process Clause to suggest that the failure to
select a room that could accommodate everyone who might want to
attend rises to the level of a constitutional violation.
Similarly, Ms. Falinski has not shown how her free speech
rights were affected by the composition of the audience. She
makes no allegation that Defendants (or anyone) prevented her
from speaking during the Disciplinary Proceedings, nor that she
was barred from speaking outside the hearings with any of her
supporters who may been denied access through the Lottery System.
Thus, even if timely, Plaintiff's fifth and sixth claims are
dismissed with prejudice as frivolous.
(3) Second Claim (State Injunctive Action)
As discussed above, Ms. Falinski contends in her second claim
that Defendants improperly sought injunctive relief in state
court for retaliatory purposes and that their actions violated
her First Amendment rights.*fn6 Ms. Falinski asserts
that she never intended to reveal information about the students
named within the charges, but instead sought only to dispel
rumors about the undisclosed charges and counter any damage to
her reputation. (Compl. ¶ 35).
Once again, Defendants correctly counter that Plaintiff's claim
is time-barred. Defendants commenced the state injunctive action
with an order to show cause, signed on October 27, 1993,
containing the temporary restraining order that Ms. Falinski
alleges infringed her speech. Thus, Ms. Falinski's injury, if it
existed, became apparent in October 1993, and any claim stemming
from this injury accrued at the same time. Because Plaintiff did
not seek relief for her alleged injury until June 1997, her
second claim is time-barred.
B. Continuing Violation Exception to the Statute of Limitations
Ms. Falinski contends that the statute of limitations governing
her claims should have been tolled because she suffered injuries
that were part of a "continuing violation." "The
continuing-violation exception `extends the limitations period
for all claims of discriminatory acts committed under [an ongoing
policy of discrimination] even if those acts, standing alone,
would have been barred by the statute of limitations.'" Annis v.
County of Westchester, 136 F.3d 239, 245-46 (2d Cir. 1998)
(alteration in original) (quoting Lightfoot v. Union Carbide
Corp., 110 F.3d 898, 907 (2d Cir. 1997)). The courts of this
Circuit have generally been loath to invoke the continuing
violation doctrine and will apply it only upon a showing of
"compelling circumstances." Davis v. City Univ., 94 Civ.
7277(SHS), 1996 WL 243256, at *10, 1996 U.S. Dist. LEXIS 6345, at
*29 (S.D.N.Y. May 8, 1996) (citing cases).
In the Second Circuit, "a continuing violation may be found
where there is proof of specific ongoing discriminatory policies
or practices, or where specific and related instances of
discrimination are permitted by the employer to continue
unremedied for so long as to amount to a discriminatory policy or
practice" but may not be premised upon "discrete incidents of
discrimination that are not related to discriminatory policies or
mechanisms." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.
1994); see also Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d
Cir. 1993); Davis, 1996 WL 243256, at *10, 1996 U.S. Dist.
LEXIS 6345, at *28. A plaintiff cannot establish a continuing
violation "merely because she continues to feel the effects of a
discriminatory act on the part of the employer. To hold otherwise
would render meaningless the time limitations imposed on
discrimination actions." Lightfoot, 110 F.3d at 907-08.
Ms. Falinski's unsubstantiated assertion that Defendants'
actions constituted an ongoing conspiracy to delay the
Disciplinary Proceedings does not come close to establishing the
specific policies or mechanisms necessary to invoke the exception
in this Circuit. See, e.g., Cornwell, 23 F.3d at 704 (finding
continuing violation where plaintiff presented proof of
consistent pattern of specific discriminatory hiring practices);
see also Lambert, 10 F.3d at 53. Plaintiff does not allege any
specific discriminatory policy, but broadly proclaims that all of
Defendants' acts constituted a "continuous, orchestrated course
of retaliation." Pl.'s Memorandum of Law in Opposition to Summary
Judgment at 26. Ms. Falinski cannot claim shelter from the
statute of limitations merely by uttering the phrase "continuing
violation" without alleging the existence of a specific policy or
mechanism. See, e.g., Davis, 1996 WL 243256, at *10, 1996 U.S.
Dist. LEXIS 6345, at *29; see also Acosta v. Yale Club, 94 Civ.
0888(KTD), 1995 WL 600873, at *6,
1995 U.S. Dist. LEXIS 14811, at *16 (S.D.N.Y. Oct. 5, 1995).
Furthermore, Ms. Falinski cannot tie together separate and
discrete acts of alleged retaliation that occurred over a period
of several years into one timely continuing violation. This
Circuit requires "specific and related instances of
discrimination . . . permitted by the employer to continue
unremedied." Cornwell, 23 F.3d at 704 (emphasis added). In
Cornwell, the plaintiff had presented evidence that she
experienced several similar instances of race- and gender-based
harassment over two distinct time periods divided by an
illness-based absence: from 1981 to 1983, and again in 1986 until
she left the defendant's employ. Id. Consequently, the panel
affirmed the district court's ruling that the plaintiff's earlier
claims were timely because the defendant employer had committed a
continuing violation culminating in Cornwell's 1986 departure.
By contrast, Ms. Falinski bases her retaliation argument on two
timely claims and a number of patently unrelated acts that
occurred outside of the statutory period: (1) the 1993
investigation by Rederer and Kuntz of the basis for the
complaints lodged against the Plaintiff; (2) the Board's finding
of probable cause in October 1993; (3) the commencement of the
state injunctive action in November 1993; and (4) the institution
of the Lottery System in May 1994. These actions are wholly
separate from, and unrelated to, Ms. Falinski's timely claims
stemming from Defendants' alleged dilatory prosecution of the
Disciplinary Proceedings, except in that Plaintiff claims
generally that they resulted from the same improper retaliatory
motive. As this Court has previously found that Ms. Falinski had
sufficient notice of any alleged improper motive early enough to
render time-barred four of her claims, Plaintiff cannot now
resurrect these stale claims by stating that dissimilar acts are
related. To hold otherwise would turn the continuing violation
doctrine into a "boundless exception" to the statute of
limitations. See Johnson v. Nyack Hosp., 891 F. Supp. 155, 165
Accordingly, Ms. Falinski's first, second, fifth, and sixth
claims are dismissed as barred by the statute of limitations.
C. Qualified Immunity
The Court now turns to Defendants' contention that the doctrine
of qualified immunity requires dismissal of the remaining claims
against all of the individual defendants. The qualified immunity
doctrine "balance[s] the need to protect the rights of citizens
through damage remedies, with the opposing need `to protect
officials who are required to exercise their discretion and the
related public interest in encouraging the vigorous exercise of
official authority.'" Danahy v. Buscaglia, 134 F.3d 1185, 1189
(2d Cir. 1998) (quoting Butz v. Economou, 438 U.S. 478, 506, 98
S.Ct. 2894, 57 L.Ed.2d 895 (1978)). The Second Circuit observed,
in Danahy, that "qualified immunity protects government
officials from liability for civil damages if the challenged
action `does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Id. at 1190 (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "A right is
clearly established when the contours of the right are
sufficiently clear that a reasonable official would understand
that what he is doing violates that right. The unlawfulness must
be apparent." McEvoy v. Spencer, 124 F.3d 92, 96 (2d Cir. 1997)
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 97 L.Ed.2d 523 (1987)).
The Court assesses three factors in determining whether a
particular right was clearly established at the time of the
(1) whether the right in question was defined with
"reasonable specificity"; (2) whether the decisional
law of the Supreme Court and the applicable circuit
court support the existence of the right
in question; and (3) whether under preexisting law a
reasonable defendant official would have understood
that his or her acts were unlawful.
McEvoy, 124 F.3d at 97 (citing Jermosen v. Smith,
945 F.2d 547, 550 (2d Cir. 1991)).
The Court must determine as a matter of law with respect to the
third factor — the only one in dispute here — whether "`it was
objectively reasonable for [the defendant officials] to believe
that their acts did not violate those rights.'" Danahy, 134
F.3d at 1190 (quoting Robinson v. Via, 821 F.2d 913, 921 (2d
Cir. 1987)). "[A] government official's actions will be
considered objectively reasonable if `officers of reasonable
competence could disagree' on the legality of defendant's
actions.'" Id. (quoting Lennon v. Miller, 66 F.3d 416, 420
(2d Cir. 1995)).
This issue turns on an understanding of the Second Circuit's
holding in McEvoy v. Spencer, in which the panel addressed the
intersection of two lines of decisions from the Supreme Court —
the so-called Pickering line of cases and the Elrod line of
cases. See McEvoy, 124 F.3d at 97-98. In Pickering v. Board of
Educ. of Township High School, the Supreme Court adopted a
balancing test to determine whether a public employer violates
the First Amendment when it dismisses an employee for speaking
out on matters of public concern. Pickering, 391 U.S. 563, 568,
88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The Court recognized the
conflict between citizen employees' "right to speak on matters of
public concern" and the public employer's "strong interest `in
promoting the efficiency of the public services it performs
through its employees.'" McEvoy, 124 F.3d at 98 (quoting
Pickering, 391 U.S. at 568, 88 S.Ct. 1731).
Later, in Elrod v. Burns, the Supreme Court recognized a
public employer's "vital" interest in ensuring the "political
loyalty of employees" and, thus, upheld the dismissal of certain
public employees as a result of free speech activities. Elrod,
427 U.S. 347, 363, 367, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The
Elrod Court adopted a categorical approach seemingly at odds
with the Pickering balancing test, in that it generally
prohibited dismissals of low-level employees but upheld the
public employer's right to dismiss "policymaker" employees on the
basis of political affiliation without violating the First
Amendment. Elrod, 427 U.S. at 367, 96 S.Ct. 2673.
Examining the potential conflict of these two decisions, the
Second Circuit subsequently held, in McEvoy, that an employee's
status as policymaker is but one of several factors to be
considered as part of the Pickering balancing test. McEvoy,
124 F.3d at 103. Of particular interest here, the McEvoy panel
noted that because "the issue of a policymaker exception to
Pickering was not definitively settled against employers" prior
to the McEvoy ruling, the individual defendants in that case
were entitled to qualified immunity on the First Amendment
retaliation claim. McEvoy, 124 F.3d at 105.
Defendants now contend that, like the individual defendants in
McEvoy, they should benefit from qualified immunity because, at
the time Ms. Falinski alleges her rights were violated, the
Second Circuit had not yet addressed the scope of a policymaking
employee's First and Fourteenth Amendment protection from adverse
employment actions based on speech. Thus, even if the Court
credits all of Ms. Falinski's allegations, Defendants assert that
it was objectively reasonable for them to believe that she was a
policymaker and that their actions did not violate her clearly
established constitutional rights. Consequently, Defendants
conclude that they are immune from individual liability under §
1983. Defendants are correct.
The Court finds as a matter of law that it was objectively
reasonable for Defendants to believe that Ms. Falinski was an
Elrod policymaker throughout the time of her speech and of
Defendants' allegedly retaliatory responses to it. In fact, Ms.
Falinski affirmatively asserted her policymaking activities in
her motion papers. See, e.g. Plaintiff's Affidavit in
Opposition to Summary Judgment, at 5 (". . . I strongly
advocated a transition to a Whole Language program at Furnace
Woods School and we started to implement methods of instruction
which reflected the philosophy."). Further, all of the activities
at issue in Ms. Falinski's June 1997 complaint necessarily
occurred prior to the Second Circuit's McEvoy decision, issued
on August 11, 1997. Thus, this case is no different from several
other recent Second Circuit and Southern District decisions which
have held that, when it is objectively reasonable to view a
public employee as a policymaker, and the employee's speech or
the alleged retaliatory action occurred prior to McEvoy, the
individual defendants are entitled to qualified immunity on §
1983 claims. See, e.g., Danahy, 134 F.3d at 1191; Fry v.
McCall, 95 Civ. 1915(JCK), 1998 WL 770563, at *5 (S.D.N.Y. Nov.
4, 1998); Roniger v. McCall, 22 F. Supp.2d 156, 166-67 (S.D.N Y
1998); Crockett v. Pataki, 97 Civ. 3539(LAP), 1998 WL 614134,
at *8 (S.D.N.Y. Sept. 14, 1998); Stanley v. Cooper, 996 F. Supp. 316,
320-21 (S.D.N.Y. 1998).
Accordingly, the individual defendants are shielded by
qualified immunity from Ms. Falinski's remaining claims as a
matter of law. These claims (third and fourth) are dismissed with
prejudice as against all defendants.
D. Claims Against the School District
In addition to her claims against individual defendants, Ms.
Falinski also named the Hendrick Hudson School District as a
municipal defendant in her complaint, but these claims, too, must
fail because Plaintiff has not presented sufficient allegations
of an unlawful governmental custom or policy to hold the
municipality liable for § 1983 violations of its employees. See
Monell v. Department of Social Services, 436 U.S. 658, 690-91,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also "continuing
violation" doctrine discussion, supra § III(B).
E. Plaintiff's Discovery-Based Objection
Ms. Falinski asserts, to no avail, that the Court should defer
consideration of the pending motion so that Plaintiff might seek
additional discovery pursuant to Federal Rule of Civil Procedure
56(f). The Court is not persuaded that further discovery would
enable Ms. Falinski to rebut more effectively Defendants' motion
for summary judgment on the grounds that four of Ms. Falinski's
claims are time-barred and that all individual defendants are
shielded by qualified immunity from the remaining claims. Ms.
Falinski's failure to seek any such discovery to date,
notwithstanding a written offer from Defendants to discuss "any
discovery you will contend is necessary to oppose the motion"
reinforces the Court's conclusion. See Affidavit of Bettina B.
Plevan, ¶ 2 & Exh. 1.
Having dismissed all of Plaintiff's claims as barred by the
statute of limitations and qualified immunity, the Court need not
reach Defendants' other arguments.
This constitutes the decision and order of the Court. The Clerk
is ordered to dismiss all of Plaintiff's claims with prejudice.