The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS' MOTION TO
Plaintiff Amy Wheeler brings this civil rights action against
Joseph Natale, Superintendent of the Warwick Valley Central
School District, in his individual capacity, and against the
Warwick Valley Central School District ("the School District")
for violation of her First Amendment rights to speech and
association under 42 U.S.C. § 1983 and 1988. Defendants move to
dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim
on which relief can be granted.
For the reasons stated below, defendants' motion to dismiss is
Plaintiff began working for the defendant School District in
1995-1996 as a substitute support staff member and clerical
worker. On July 1, 1998, plaintiff was appointed on a
provisional basis as a part-time switchboard operator.
In early 1999, plaintiff failed the second part of a two-part,
County-administered civil service examination for the position
of switchboard operator. Plaintiffs colleague, Nanette
Susskraut, also failed the examination.
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 ...