The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.
Probationary school teacher Anna Rivera filed this action, pursuant to
28 U.S.C. § 1983, against her former school district and other
defendants after being terminated for allegedly committing misconduct in
an effort to raise her pupils' standardized test scores. Rivera accuses
defendants of violating her due process rights by terminating her without
a meaningful hearing and violating her First Amendment rights by
terminating her in retaliation for filing a notice of claim against other
New York employees. The Board of Education moves to dismiss all claims
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted.
For the reasons set forth below, the Court finds that: (1) Rivera has
no property interest in her job which would entitle her to due process
rights; (2) Rivera does have a liberty interest in clearing her name from
the stigma of accusations of dishonesty which entitles her to due
process; (3) New York State's article 78 proceeding provides an adequate
mechanism for protecting Rivera's liberty interest; (4) Rivera has not
alleged sufficient facts to establish a causal connection between her
filing of a notice of claim and her dismissal from her probationary
teaching position. Accordingly, defendants' motion is granted with
prejudice with respect to Rivera's due process claims and is granted
without prejudice with respect to her First Amendment claim.
Anna Rivera had been teaching in New York elementary schools since 1989
as a probationary employee.*fn1 In December of 1999, the New York City
Special Commissioner of Investigation issued a report entitled "Cheating
the Children: Educator Misconduct on Standardized Tests." (hereinafter,
"the Report"). The Report alleged that educators in the New York City
public school system used a variety of inappropriate means to raise their
students' scores on standardized tests. Specifically, it alleged that
Rivera was present while a "cheat sheet" was prepared the day before the
citywide reading and math tests were given to all third graders in 1995.
Although Rivera denies cheating, the Report claims that interviews with
Rivera's students establish that Rivera did in fact cheat on that test.
(Ex. 4 to Order to Show Cause ("OTSC").) Shortly after the Report was
issued and published in the media, Rivera was reassigned to non-teaching
duties in another school and summoned to a Community School District Nine
At the hearing, Rivera was not permitted to be represented by her
attorney; however, she was represented by the teacher's union. Rivera
denied all of the allegations against her. On December 20, 1999, the
school district found that Rivera had violated Board of Education
policies by: (1) cheating during the 1995 citywide standardized tests and
(2) failing to report to her supervisors that "cheat sheets," which were
to be used by cooperating staff to assist students during the
standardized tests, were prepared in her presence. (Compl. ¶ 27, Ex.
6 to OTSC at 2.) As a result of this finding, "a strong letter of
reprimand" was placed in Rivera's file and her principal was instructed
to rate Rivera's annual performance for the period covering September
1999 to June 2000 as "unsatisfactory."
In February of 2000, Rivera filed a notice of claim against the City of
New York, the Special Commissioner of Investigation, and two of the
Special Commissioner's investigators for defamation and violation of her
civil rights. In August of 2000, the Special Commissioner of
Investigation issued a Supplementary Report accusing Rivera of assisting
students during the 1999 citywide standardized reading test, pressuring
other teachers to do the same, and attempting to strike another teacher.
(Compl. 31, Ex. 8 to OTSC.) Rivera was subsequently notified to attend
another disciplinary meeting.
In response, her attorney wrote to the Director of Operations for the
school district objecting to the hearing and stating that, "this new
allegation by [the Special Commissioner] is viewed as retaliatory conduct
in violation of Ms. Rivera's Civil Rights, for her lodging a complaint
against him and others with the New York City Comptroller's Office."
(Compl. ¶ 34, Ex. 9 to OTSC.)
At the hearing, Rivera again had union representation but not her own
attorney. The school district again credited the charges in the
Supplemental Report over Rivera's denials. A few days later, the
superintendent of Community School District Nine informed her that her
"Certification of Probation" had been denied, meaning she no longer was
able to teach in District Nine. (Compl. ¶ 37, Ex. 10 to OTSC.) Rivera
subsequently filed this action.
In reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12
(b)(6), a court merely assesses the legal feasibility of the complaint,
and does not weigh the evidence that may be offered at trial. Cooper v.
Parsky, 140 F.3d 433, 440 (2d Cir. 1998); Geisler v. Petrocelli,
616 F.2d 636, 639 (2d Cir. 1980). All factual allegations in the
complaint must be accepted as true, and the complaint must be viewed in
the light most favorable to the plaintiff. LaBounty v. Adler, 933 F.2d 121,
123 (2d Cir. 1991); Bayer Corp. v. Smithkline Beecham PLC, 1996 WL 34164
(S.D.N.Y. Jan. 29, 1996). Although a court is limited to the facts stated
in the complaint, for purposes of a Rule 12(b)(6) motion the complaint
includes any documents attached as exhibits and any documents
incorporated by reference. See Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d
Cir. 1994); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47
(2d Cir. 1991), cert. denied, 503 U.S. 960 (1992). A motion to dismiss
should not be granted 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." Walker v. City of N.Y., 974 F.2d 293, 298 (2d Cir. 1992)
(quoting Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir.
In order to allege a violation of due process rights pursuant to
42 U.S.C. § 1983 a plaintiff must first establish that she has
suffered a deprivation of a constitutionally protected liberty interest
or property interest. See Board of Regents v. Roth, 408 U.S. 564, 570-71
(1972) (holding limited by Paul v. Davis, 424 U.S. 693, 96 (1976)); Gomez
v. Toledo, 446 U.S. 635, 640 (1980); Finley v. Giacobbe, 79 F.3d 1285,
1296 (2d Cir. 1996); Federico v. Board of Educ., 955 F. Supp. 194, 198-99
(S.D.N.Y. 1997). If a protected interest is identified, the plaintiff
must then show that she was deprived of that interest without due
process. See Narumanchi v. Board of Trustees, 850 ...