In May 1999, plaintiff began co-hosting a radio program with
Mel Cohen, also known as "Uncle Mel." The program was broadcast
live each weekday on a local radio station situated within the
School District. Before starting to co-host the program,
plaintiff told her direct supervisor, Tom Gustainis, of the
opportunity, and promised not to reveal any District
According to plaintiff, defendant Natale asked his staff to
listen to the program for anything adverse which plaintiff or
Cohen might say about him or the District. Plaintiff contends
that Cohen broadcast opinions critical of the District, which
In November 1999, plaintiff informed her supervisor that she
was going to be out of work for a number of weeks for breast
surgery. The next day, Gustainis told plaintiff that defendants
were terminating her employment (along with that of Susskraut)
effective December 24, 1999. Gustainis told plaintiff that she
and Susskraut were fired because they failed the Civil Service
Examination for switchboard operator.
The District hired a telephone receptionist from the list of
people who passed the Civil Service Exam. The School District
also created a position of telephone receptionist/typist
requiring less than 20 hours per week, thus making the part-time
position outside the scope of civil service rules. The District
hired Susskraut for this position.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
for dismissal of a complaint that fails to state a claim upon
which relief can be granted. The standard of review on a motion
to dismiss is heavily weighted in favor of the plaintiff. The
Court is required to read a complaint generously, drawing all
reasonable inferences from the complaint's allegations.
California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508, 515, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). "In ruling on a
motion to dismiss for failure to state a claim upon which relief
may be granted, the court is required to accept the material
facts alleged in the complaint as true." Frasier v. General
Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991). The Court
must deny the motion "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." Stewart v. Jackson & Nash,
976 F.2d 86, 87 (2d Cir. 1992) (quoting Conley v. Gibson,
355 U.S. 41, 4546, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
The Supreme Court has held that "a public employee does not
relinquish First Amendment rights to comment on matters of
public interest by virtue of government employment." Pickering
v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d
811 (1968); Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct.
1684, 75 L.Ed.2d 708 (1983); Morris v. Lindau, 196 F.3d 102,
109 (2d Cir. 1999). In order to state a First Amendment
retaliation claim under § 1983, plaintiff must demonstrate that
(1) the speech was constitutionally protected; (2) she suffered
an adverse employment decision; and (3) there was a causal
connection between the speech and the adverse employment
determination against her, so that it can be said that her
speech was a motivating factor in the determination. Morris,
196 F.3d at 110; Mount Healthy City Sch. Dist. Bd. Of Educ. v.
Doyle, 429 U.S. 274, 283-287, 97 S.Ct. 568, 50 L.Ed.2d 471
1. Protected Speech
Plaintiff engaged in protected speech when she began
co-hosting the "Uncle Mel" radio program.
The question of whether certain speech enjoys a protected
status under the First Amendment is one of law, not fact. See
Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684. Central to this
inquiry is whether the speech may "be fairly characterized as
constituting speech on a matter of public concern." Id. at
146, 103 S.Ct. 1684. As a general rule, speech on "any matter of
political, social, or other concern to the community" is
protected by the First Amendment. Id. Expressive association
claims, such as the plaintiffs claim that she was retaliated
against for her association with a group, are considered to be
the equivalent of free speech claims, since the expressive
conduct alleged is inextricably linked to protected speech.
Birmingham v. Ogden, 70 F. Supp.2d 353, 368-69 (S.D.N.Y. 1999);
see also Abood v. Detroit Bd. Of Educ., 431 U.S. 209, 233, 97
S.Ct. 1782, 52 L.Ed.2d 261 (1977) ("[T]he freedom of an
individual to associate for the purposes of advancing beliefs
and ideas is protected by the First and Fourteenth Amendments").
Plaintiff alleges in her Complaint that the speech acts engaged
in by co-host Cohen "concerned matters of public importance,
specifically the appropriate running and operation of the school
district." (Compl. ¶ 20.) By virtue of her association with
Cohen and participation in the "Uncle Mel" program, she has
engaged in speech that is protected by the First Amendment.
Neither party disputes this.
2. Adverse Employment Action
Defendants' failure to hire plaintiff for the newly-created
part-time position, constituted an adverse employment action.
Adverse employment actions include discharge, refusal to hire,
refusal to promote, demotion, reduction in pay, and reprimand.
Morris, 196 F.3d at 110; Kaluczky v. City of White Plains,
57 F.3d 202, 208 (2d Cir. 1995) (citing Rutan v. Republican
Party, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990));
see also Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir. 1996)
(noting that adverse employment actions may include negative
evaluation letters, express accusations of lying, assignment of
lunchroom duty, reduction of class preparation periods, failure
to process teacher's employment forms, transfer from library to
classroom teaching as an alleged demotion, and assignment to
classroom on fifth floor which aggravated a teacher's physical
Plaintiff alleges an "adverse employment action" from each of
two actions taken by the defendant: (a) the decision to fill her
former job with a candidate who passed the Civil Service Exam
(Compl. ¶ 18); and (b) the decision to create a part-time
position, and to fill it with her co-worker Susskraut, who also
had failed the Exam. (Compl. ¶ 17.) I will address each in turn.
a. Plaintiffs Former Job
The parties do not dispute that plaintiff was a provisional
employee, whose continued employment was contingent on her
passing the Civil Service Exam.
The New York Civil Service Law provides that:
No provisional appointment shall continue for a
period in excess of nine months. . . . A
provisional appointment to any position shall be
terminated within two months following the
establishment of an appropriate eligible list for
filling vacancies in such positions;
N.Y. Civ. Serv. Law § 65(2)-(3).
When plaintiff failed the Civil Service Exam, the District was
required under N.Y. Civ. Serv. Law § 65(3) to terminate her
employment within two months of the establishment of an
appropriate list of passing candidates. The District had no
choice but to hire a candidate for the
position who had, in fact, passed the test. This is what the
Plaintiff contends that the District changed the number of
hours of the job to make it competitive-and thus subject to the
Civil Service rules. Defendants argue that before failing the
Exam, plaintiff had a provisional employment in a position that
was subject to civil service qualifications. It was a
competitive position which required the ultimate passing of the
Civil Service Examination. Both parties recognized the
provisional nature of plaintiffs employment, and the necessity
for plaintiff to pass the Civil Service Exam to continue
Since plaintiff concedes that she did not pass the test and
was therefore not listed upon the appropriate Civil Service
list, plaintiffs employment, as a matter of law, had to come to
an end. Plaintiff did not qualify for the Civil Service job, so
she cannot allege a failure to hire, or "adverse employment
action" against the defendants as a result of this decision.
b. The New Part-Time Job Created by the District
Plaintiffs allegation of failure to hire based on defendants'
creating a part-time position, then filling it with plaintiffs
former co-worker, is a different matter. After plaintiff and
Susskraut failed the Civil Service Exam, the District created an
additional position outside the scope of the civil service
rules. The District hired Susskraut for that position.
There could have been a number of conceivable reasons for the
District's hiring Susskraut, not the least of which was the fact
that she had served the District for eighteen years, as compared
to plaintiffs three. Defendants were faced with a situation
where two employees failed a Civil Service Exam. They created a
non-civil service job, but only one of the two persons could
occupy it. Defendants then hired Susskraut, but not plaintiff.
Whether this was in fact done with discriminatory animus is
irrelevant at this stage. Plaintiff has alleged an adverse
employment action from defendants' failure to hire her in the
part-time position. Plaintiff survives the second prong of the
3. Causal Connection Between Speech and Adverse Employment
The final prong of the Morris test is whether plaintiff has
alleged a causal connection between the speech and the adverse
employment action. I conclude that she has.
The causal connection must be sufficient to warrant the
inference that the protected speech was a substantial motivating
factor in the adverse employment action. That is to say, the
adverse employment action would not have been taken absent the
employee's protected speech. Mount Healthy, 429 U.S. at 287,
97 S.Ct. 568. Causation can be established either indirectly by
means of circumstantial evidence — for example, by showing that
the protected activity was followed by discriminatory treatment
— or through evidence of disparate treatment of employees who
engaged in similar conduct or directly through evidence of
retaliatory animus. Morris, 196 F.3d at 110; Sumner v. United
States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990).
Circumstantial facts in a retaliation claim can suggest an
improper motive sufficient to withstand a motion to dismiss.
See, e.g., Gadson v. Goord, 96-CV-7544, 1997 WL 714878, *8
(S.D.N.Y. Nov. 17, 1997) (citing Gagliardi v. Village of
Pawling, 18 F.3d 188 (2d Cir. 1994)) (denying motion to dismiss
where retaliation claim alleged a chronology of events from
retaliatory intent could be inferred); see also Murphy v.
Lane, 833 F.2d 106, 108-09 (7th Cir. 1987) ("Chronology of
events from which retaliatory animus on part of the defendants
could be inferred" sufficient to overcome motion to dismiss).
Courts have noted that without inquiring into the defendants'
motives, "those intent on punishing the exercise of
constitutional rights could easily mask their behavior behind a
complex web of post hoc rationalizations." Piesco v. City of
New York, 933 F.2d 1149 (2d Cir. 1991) (citing Peacock v.
Duval, 694 F.2d 644, 646 (9th Cir. 1982)) (internal quotation
Plaintiff contends that defendants fired her because of
"Natale's hostility toward Mel Cohen and to plaintiffs
association with him, of which he was aware," (Compl. ¶ 19), and
because of "Natale's hostility to the speech acts engaged in by
Cohen, which concerned matters of public importance,
specifically the appropriate running and operation of the
defendant School District." (Compl. ¶ 20.) Plaintiff further
argues that Natale "requested staff to surveil this radio show
for anything adverse which Cohen or plaintiff might say about
him or the school district. Natale also told his department
heads that if they reported to him such adverse comments, they
would be rewarded." (Compl. ¶ 13.) While defendant is correct
that asking others to listen to the radio does not constitute an
abridgement of rights, if true, it certainly supports an
inference that he was ready to punish plaintiff for any comments
critical of the District.
Plaintiff has stated a claim for violation of her First
Amendment rights under § 1983. While she does not allege any
fact which would create a superior right on the plaintiffs part
to the newly created position or any reason for selecting
plaintiff over her co-worker, Susskraut, her allegations that
Natale first asked subordinates to monitor her show for
"adverse" statements, and then subsequently decided not to
rehire her, could establish a causal connection between her
affiliation with "Uncle Mel" and defendants' decision not to
Because this is a motion to dismiss and not a motion for
summary judgment, the Court finds that plaintiff alleges a
sequence of events which may be read as providing some support
for an inference of retaliation sufficient to withstand a motion
to dismiss. Whether they will survive a motion for summary
judgment is another question — one that cannot be answered
Defendants' motion to dismiss is therefore denied.
This constitutes the decision and order of this Court.
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