United States District Court, Southern District of New York
May 2, 2001
ANNA RIVERA, PLAINTIFF,
COMMUNITY SCHOOL DISTRICT NINE, MARIA SANTORY GUASP, SUPERINTENDENT OF COMMUNITY SCHOOL DISTRICT NINE, BOARD OF EDUCATION OF THE CITY OF NEW YORK, AND HAROLD O. LEVY, CHANCELLOR OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, DEFENDANTS.
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.
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.
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 F.2d 70, 72 (1988). "The
second step of the analysis thus asks what process was due to the
plaintiff, and inquires whether that constitutional minimum was provided."
1. Rivera Has No Property Interest In Her Probationary Position
To establish a property interest, a plaintiff must have "more than an
abstract need or desire for [the property], she must, instead, have a
legitimate claim of entitlement to it under state or federal law in order
to state a § 1983 claim." Finley, 79 F.3d at 1296 (citing Roth, 408
U.S. at 577). "Where state law defines an employment position as
probationary, the employee lacks a legal claim of entitlement and
therefore lacks a property interest in the expectation of continued
employment." Jannsen v. Condo, 101 F.3d 14, 16 (2d Cir. 1996); see also
Donato v. Plainview-Old Bethpage Central Sch. Dist., 96 F.3d 623, 629-30
(2d Cir. 1996).
Under New York law, "`it is well settled that a probationary-employee,
unlike a permanent employee, has no property rights in [her] position and
may be lawfully discharged without a hearing and without any stated
specific reason.'" Finley, 79 F.3d at 1297 (quoting Meyers v. City of New
York, 208 A.D.2d 258, 262, 622 N.Y.S.2d 529, 532 (2d Dep't 1995)); see
also Venes v. Community School Board of Dist. 26, 43 N.Y.2d 520, 525,
402 N.Y.S.2d 807, 810 (1978). "Where there is no property interest in the
employment, there can be no property interest in the procedures that
follow from the employment." Jannsen, 101 F.3d at 16; Donato, 96 F.3d at
629-30 (finding no property interest in notification requirements of New
York Education Law § 3031 where employment was probationary). Because
Rivera was merely a probationary employee — albeit for ten years
— she has no property interest in her position.
2. Rivera Has a Liberty Interest
"A liberty interest is implicated where defamatory statements, made in
connection with a probationary employee's termination, denigrate the
employee's competence as a professional and impugn the employee's
professional reputation in such a fashion as to effectively put a
significant roadblock in that employee's continued ability to practice .
. . her profession." Jannsen, 101 F.3d at 16; see also Donato, 96 F.3d at
630-31; O'Neill v. City of Auburn, 23 F.3d 685, 692 (2d Cir. 1994). "When
a state fires an employee and publicly charges that she acted dishonestly
or immorally, due process guarantees the employee an opportunity to
defend her good name, reputation, honor, or integrity." Donato, 96 F.3d
In this case, Rivera was terminated because the superintendent of
Community School District Nine concluded that Rivera cheated on
standardized tests, pressured other teachers into cheating, and attempted
to assault another teacher for refusing to cooperate in the cheating
scheme. The allegations were disseminated to the public and repeated in
letters to Rivera. Rivera vehemently denied these accusations at both
disciplinary meetings. Because these accusations impugn Rivera's
honesty, she has a liberty interest that is protected by the Due Process
Clause. See, e.g., O'Neill, 23 F.3d at.693.
3. What Process is Due
Having determined that Rivera has a protected liberty interest, the
next inquiry is whether she was deprived of due process in her effort to
protect that interest. The type of process due depends upon whether the
alleged violation was caused by "established state procedures" or by
"random, unauthorized acts by state employees." Hellenic American
Neighborhood Action Committee v. City of New York (HANAC), 101 F.3d 877,
880 (1996) (citing Hudson v. Palmer, 468 U.S. 517, 532 (1984) and Parratt
v. Taylor, 451 U.S. 527, 541 (1981)). Specifically, when a state employee
intentionally deprives an individual of property or liberty through a
random, unauthorized act, the Due Process Clause of the Fourteenth
Amendment is not violated "so long as the state provides a meaningful
postdeprivation remedy." HANAC, 101 F.3d at 880. However, when the state's
deprivation of an individual's property or liberty "occurs in the more
structured environment of established state procedures," rather than
through random acts of state employees, "the availability of post
deprivation procedures, will not, ipso facto, satisfy due process." Id.
The United States Supreme Court's different treatment of the two
situations rests on pragmatic considerations. See Hudson, 468 U.S. at
531-33. When a deprivation occurs because of a random, arbitrary act by a
state employee "`[i]t is difficult to conceive of how the State could
provide a meaningful hearing before the deprivation takes place.'" Id.
(quoting Parratt, 451 U.S. at 541). Furthermore, "[that] an individual
employee himself is able to foresee a deprivation is simply of no
consequence. The controlling inquiry is solely whether the state is in a
position to provide for predeprivation process." Hudson, 468 U.S. at 534;
see also HANAC, 101 F.3d at 880.
Although Rivera contends that the violation of her liberty interest
stemmed from established state procedures, she cites no particular rule,
provision or statute that violates due process. Indeed, New York's general
procedures for terminating probationary teachers have already been upheld
against due process challenges by both federal and New York state
courts. See Donato, 96 F.3d at 629 (upholding against due process
challenge N.Y. Educ. Law § 3031, which articulates procedures to
follow when a superintendent recommends to the board of education that a
probationary employee be denied tenure or terminated); Narumanchi, 850
F.2d at 72 ("[T]he grievance procedures contained in [a university
teacher's collective bargaining] agreement provided whatever process [the
teacher] was due."); James v. Board of Educ., 37 N.Y.2d 891, 892,
378 N.Y.S.2d 371, 371 (1975) ("A board of education has an unfettered
right to terminate the employment of a teacher during his probationary
period unless the teacher establishes that the board terminated for a
constitutionally impermissible purpose or in violation of a statutory
proscription."); cf. Venes, 43 N.Y.2d at 525, 402 N.Y.S.2d at 810
(upholding N.Y. Educ. Law § 2573, which grants a school board broad
authority to dismiss a probationary employee).
In this case, the particular finding that gives rise to the protected
interest — that Rivera cheated and attempted to assault a fellow
teacher — could not possibly be anticipated before it occurred by
lawmakers and administrators who formulate procedures. The claim,
therefore, is based on a random, unauthorized act [and not a state
established procedure. See, e.g., Giglio v. Dunn, 732 F.2d 1133, 1135 (2d
Cir. 1984); Federico, 955 F. Supp. at 200-01.
Because the alleged deprivation of a liberty interest was the result of
a random, unauthorized act, Rivera's claim can survive only if New York
does not provide adequate postdeprivation procedures. See HANAC, 101 F.3d
at 881. However, New York's Article 78 proceeding has been held to be an
adequate postdeprivation remedy. See Id.; Federico, 955 F. Supp. at
201-02. Article 78 of the New York Civil Practice Law and Rules provides
both a hearing and a means of redress for petitioners. An Article 78
petitioner is permitted to submit affidavits and other written proof of
her claim, and where a triable issue of fact is raised, the petitioner
may obtain a trial. See HANAC, 101 F.3d at 881; Federico, 955 F. Supp. at
202. Moreover, "an Article 78 proceeding is adequate for due process
purposes even though the petitioner may not be able to recover the same
relief that [she] could in a § 1983 suit." HANAC, 101 F.3d at 881;
Federico, 955 F. Supp. at 202.
Rivera's claim that the school district failed to provide her with a
meaningful hearing before she was terminated is inapposite. Rivera can
seek the redress she desires — an opportunity to clear her name
— through an Article 78 proceeding. See Swinton v. Safir,
93 N.Y.2d 758, 766, 697 N.Y.S.2d 869, 873. Because New York provides
Rivera with adequate due process, there is no constitutional violation to
be redressed through a § 1983 suit. HANAC, 101 F.3d at 882.
Consequently, her due process claims are dismissed with prejudice.
C. First Amendment
To survive a motion to dismiss, "a plaintiff asserting First Amendment
retaliation claims must advance non-conclusory allegations establishing:
(1) that the speech or conduct at issue was protected, (2) that the
defendant took adverse action against the plaintiff, and (3) that there
was a causal connection between the protected speech and the adverse
action." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001); see also Posr
v. Court Officer Shield # 207, 180 F.3d 409, 418 (2d Cir. 1999);
Velasquez v. Goldwater Memorial Hospital, 88 F. Supp.2d 257, 264 (S.D.N Y
2000). "In particular, the causal connection must be sufficient to
warrant an inference that the protected speech was a substantial
motivating factor in the adverse employment action." Blum v. Schlegel,
18 F.3d 1005, 1010 (2d Cir. 1994); see also Dawes, 239 F.3d at 492;
Velasquez, 88 F. Supp. at 265. At this stage in the proceedings, a
"reasonable inference" is all that is required. Posr, 180 F.3d at 418.
Defendants contend that there was no "causal connection" between Rivera
filing a notice of claim against New York City, the Special Commissioner
of Investigation, and certain of the individual investigators on one hand
and the dismissal of Rivera on the other. Their argument has merit.
Rivera's notice of claim was not filed against any of the defendants in
this action, and she has not alleged any special relationship between
those named in the notice of claim and the defendants in this action
which would motivate the defendants in this action to retaliate against
Rivera due to the filing of the notice of claim.
Furthermore, Community School District Nine had already held one
disciplinary meeting and had scheduled another before even learning from
Rivera's attorney that Rivera had filed a notice of claim against the
Special Commissioner of Investigation and others. This strongly suggests
that the school district's actions were based upon the allegations in the
Report and Supplemental Report rather than in retaliation for Rivera
filing a notice of claim against others.
The fact that the Special Commissioner and his investigators may have
acted in retaliation against Rivera by filing a Supplemental Report
accusing her of more egregious acts is irrelevant to this lawsuit because
the Commissioner and his investigators are not the defendants. Because
Rivera does not allege facts which would support a reasonable inference
that her First Amendment activities were a "substantial motivating
factor" in her termination, the claim is dismissed with leave to replead
facts to support such an inference if she so chooses. See Dawes, 239 F.3d
at 492; Kalb v. Wood, 38 F. Supp.2d 260, 268 (S.D.N.Y. 1999); Quinn v.
Nassau County Police Department, 53 F. Supp.2d 347, 362 (E.D.N.Y. 1999).
In sum, Rivera has not suffered a deprivation of property or liberty
without due process; consequently, defendants' motion to dismiss these
claims is granted with prejudice. Rivera has not pled sufficient facts to
show that her dismissal from her teaching position was substantially
motivated by her filing a notice of claim against other New York
employees; therefore, defendant's motion to dismiss this claim is granted
as well. Nevertheless, the motion is granted with leave for Rivera to
plead within thirty days sufficient facts to establish that causal
connection, if she is able.