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May 2, 2001


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 disciplinary hearing.

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.


A. Standard of Review

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. 1991)).

B. Due Process

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 ...

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