United States District Court, N.D. New York
July 13, 2004.
JAN PRESTOPNIK, Plaintiff,
JOHN WHELAN, individually and as Superintendent of the Greater Johnstown School District; KATHLEEN SULLIVAN, individually and as Assistant Superintendent of the Greater Johnstown School District; JAMES HILLIER, individually and as President of the Board of Education of the Greater Johnstown School District; SHARON RITZMAN, individually and as former President of the Board of Education of the Greater Johnstown School District; JANE DOE NUMBER ONE; and THE GREATER JOHNSTOWN SCHOOL DISTRICT, Defendants.
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Jan Prestopnik ("plaintiff") brings this suit against
defendants Greater Johnstown School District ("District") and
four of its current and past employees, including Superintendent
John Whelan ("Whelan") as well as the former and current
Presidents of the District's Board of Education ("Board"),
alleging various causes of action: First and Sixth
termination on the basis of age, in violation of the [ADEA] and
New York Human Rights Law; (2) Second and Fifth denial of
tenure on the basis of complaints from an influential parent
whose child plaintiff had failed, in violation of the right to
free association, and conspiracy to deprive plaintiff of that
right;*fn1 Third making allegations of plaintiff's
incompetence as a teacher and terminating her without a hearing,
in violation of her due process rights; and Fourth with no
rational basis, denial of tenure on the basis of a parental
complaint, in violation of her right to equal protection.
In lieu of filing an answer to the complaint, defendants have
moved to dismiss the second, third, fourth, and fifth
causes of action pursuant to Fed.R.Civ.P. 12(b)(6). Oral
argument was heard on December 12, 2003, in Utica, New York.
Decision was reserved.
II. FACTUAL BACKGROUND
Taken from the complaint, as is required when assessing a
motion to dismiss under Rule 12(b)(6), the following are the
facts. Plaintiff, an English teacher with over twenty years of
experience and a master's degree, was employed by the District
from September 1999 to June 30, 2002, when she was terminated
pursuant to a decision of the Board. She began as a permanent
substitute teacher, but for the last two years of her employment
she was a probationary employee, making her eligible for tenure.
She received positive evaluations while working for the District,
and was recommended for tenure by at least some of her immediate
In early April 2002, plaintiff was informed by Whelan that she
would not receive tenure. She claims he gave no reason for this
decision, insisting instead that she sign an agreement allowing
for an additional year of probationary employment. Plaintiff
refused to sign the agreement. Two weeks later, accompanied by a
union representative, she confronted Whelan, demanding a reason
for the denial of tenure. Whelan allegedly told her the denial
was based on a conversation he had with a parent, but neither
gave further details nor disclosed the identity of the parent.
Plaintiff claims, however, such conversation was between the
parent of a child she had failed, and either Whelan, defendant
Hillier, or defendant Hillier's spouse. Plaintiff alleges the
parent "had extraordinary access to, and influence with, [Whelan]
and the . . . Board, and one to whom [Whelan] would routinely
concede so as to keep the PTA happy and retain his position."
(Docket No. 1, ¶ 21.)
The District allegedly continued to demand that she sign the
agreement, but plaintiff claims that, at the time, neither the
agreement nor any other document explained the reasons tenure was
being denied, or what she needed to do in the additional
probationary year to attain it. She claims to have asked Whelan
to answer these questions, and to disclose the identity of the
parent. He allegedly told her that he would disclose the information after she signed the agreement. She refused and asked
for a written explanation of the reasons she was being denied
Sometime thereafter, Whelan informed plaintiff in writing that
she was being denied tenure for failure to interact with students
and parents, and to understand the needs of students in the
classroom. Plaintiff claims Whelan never once observed or
evaluated her, and that these reasons were quite inconsistent
with her formal evaluations.
On April 24, 2002, eighteen District teachers were granted
tenure, all of which were allegedly younger and lower compensated
than plaintiff. Plaintiff claims that, unlike her, "many teachers
eligible for tenure no doubt receive [parental] complaints,"
(Docket No. 1, ¶ 69), but still received or will receive tenure.
On May 22, 2002, the Board formally denied plaintiff tenure and
informed her that her employment was to be terminated as of June
30, 2002. Subsequent to being fired, plaintiff contends that a
request for a hearing to contest the claim that she was being
fired for incompetence was denied.
As noted, defendants have moved to dismiss only the second,
third, fourth, and fifth causes of action pursuant to Fed.
R. Civ. P. 12(b)(6). The first and sixth causes of action
alleging age discrimination will therefore not be discussed
A. Rule 12(b)(6) Standard
In deciding a Rule 12(b)(6) motion, a court "must accept the
allegations contained in the complaint as true, and draw all
reasonable inferences in favor of the non-movant; it should not
dismiss the complaint `unless it appears beyond a reasonable
doubt that the plaintiff[s] can prove no set of facts in support
of [their] claim which would entitle [them] to relief.'"
Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Kaluczky v. City of
White Plains, 57 F.3d 202, 206 (2d Cir. 1995). However,
conclusory allegations that merely state the general legal
conclusions necessary to prevail on the merits and are
unsupported by factual averments will not be accepted as true.
See, e.g., Clapp v. Greene, 743 F. Supp. 273, 276 (S.D.N.Y.
1990); Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988).
B. Freedom Not to Associate (Second and Fifth)
"Among the liberties an American citizen enjoys is the right to
associate with whomever he or she chooses and for whatever
purpose," Melzer v. Bd. of Educ. of City Sch. Dist. of City of
N.Y., 336 F.3d 185, 188 (2d Cir. 2003), and that right "plainly
presupposes a freedom not to associate," Roberts v. U.S.
Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 82 L.Ed.2d 462
(1984). There are two constitutionally protected types of
association "`intimate association'" and "`expressive
association.'" Sanitation & Recylcing Indus., Inc. v. City of
N.Y., 107 F.3d 985, 995-96 (2d Cir. 1997). Where a claim is
advanced under the latter, as is the case here, it is clear that
expressive First Amendment activity such as "speech, assembly,
petition for redress of grievances, [or] the exercise of
religion" must be implicated. See Roberts, 468 U.S. at 618.
And, where a plaintiff is claiming that the expressive activity
is speech, he or she must demonstrate "that the associational
[speech] at issue touches on a matter of public concern." See
Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir. 2004).
Whether the expressive activity at issue is a parent's
complaint about his or her child's grade, or the actual assigning
of the grade to the child free from consideration of the parent's
connections to upper-echelon members of the District, it is clear
that no matter of public concern is implicated. In both
instances, the activity is personal to the actor. For the parent, it is not an indictment of plaintiff's teaching style or
grading methodology; it is the assignment of one particular grade
to his or her particular child. Although District residents
surely wish for the academic success of students educated
therein, and desire that underperforming students are not given a
passing grade because of their parents' status in the community,
it cannot be said that giving a particular student a particular
grade, without evidence that such a practice is thwarted on a
more systematic level, is of general public concern. Accordingly,
plaintiff's second and fifth causes of action will be
C. Due Process (Third)
Plaintiff claims in the third cause of action that her due
process rights were violated because she was discharged for
reasons of incompetence without first being afforded a hearing.
The Second Circuit recently set forth the following three
requirements plaintiff must fulfill for such a cause of action,
which it referred to as a "`stigma-plus' claim": (1) "that the
[District] made stigmatizing statements about [her] statements
that call into question [her] good name, reputation, honor, or
integrity"; (2) that "these stigmatizing statements were made
public"; and (3) that "the stigmatizing statements were made
concurrently in time to [her] dismissal from government
employment." Patterson v. City of Utica, 370 F.3d 322, 330 (2d
Cir. 2004) (internal quotations and citations omitted). Contrary
to that asserted in the complaint, in the event plaintiff proves
all three requirements, she is entitled to "a post-deprivation
opportunity to clear [her] name." Id. (emphasis
added).*fn2 In this case, plaintiff has not sufficiently pled that the
alleged defamatory statements that she was denied tenure for
failure to interact with students and parents, and to understand
the needs of students in the classroom were publicized. In
particular, plaintiff alleges that, upon her insistence, "Whelan
subsequently detailed for [her] his `reasons' in writing[.]"
(Docket No. 1, ¶ 24.) At no point does she allege that Whelan
publicized these reasons to any person and it is not, as she
claims in her memorandum of law, "obviously implied in [the]
complaint" that he did so. (Docket No. 12, p. 3.) The closest she
comes is an allegation claiming that the appropriateness of a
pre-deprivation hearing "is especially true where allegations of
incompetence are committed to writing, and made part of the
employee's personnel file." Id. at ¶ 62.
Setting aside for the moment the fact that plaintiff did not
allege that the reasons for her termination were actually placed
in her personnel file though in her memorandum of law in
opposition to defendants' motion the allegation moves from the
vague and more hypothetical to the definite the Second Circuit
has indeed held that the publication requirement can be satisfied
in such a situation. See Brandt v. Bd. of Co-op Educ. Servs.,
820 F.2d 41, 44-45 (2d Cir. 1987). However, the court in Brandt
emphasized that whether the publication requirement in such a
situation is satisfied depends upon "the potential effect of
dissemination on the employee's standing in the community and the
foreclosure of job opportunities." Id. at 44. Nowhere in the complaint does
plaintiff allege that her employment opportunities have been, or
will be, foreclosed by virtue of the alleged publication of the
reasons for her termination. Accordingly, the third cause of
action will be dismissed.
D. Equal Protection (Fourth)
In her fourth cause of action, plaintiff claims that, in
denying her tenure on the basis of a parental complaint,
defendants with no rational basis intentionally treated her
differently, "as many teachers eligible for tenure no doubt
receive such complaints," in violation of her equal protection
rights. (Docket No. 1, ¶ 69.) Defendants claim that this is
insufficient to fulfill plaintiff's obligation to allege she was
treated selectively compared to "others similarly situated," and
that plaintiff must instead "allege that she was treated
differently than other teachers who were eligible for tenure at
the same time as [her] and whose conduct had been complained
about by [the same parent] or another individual with similar
access and influence over the decision making process of the
District's administrators." (Docket No. 10, p. 9.)
The Second Circuit has flatly rejected this argument, holding
that an equal protection plaintiff need not "`name names'" at the
pleading stage, and can instead survive dismissal of the
complaint with "a more general allegation" that the plaintiff was
treated differently than similarly situated persons. See
DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir. 2003)
(interpreting Vill. of Willowbrook v. Olech, 528 U.S. 562,
120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam)).
Implicit in DeMuria, therefore, is the notion that an equal
protection plaintiff need not, at least at the pleading stage,
identify by name the similarly situated persons, or restrict such
persons in the narrowly defined way urged by defendants. It is
sufficient that plaintiff in this case generally allege that other teachers on probationary
status had not been denied tenure despite having incurred
parental complaints. If plaintiff is able to prove the existence
of such teachers, defendants will be permitted to argue that the
other requirements of this type of equal protection claim that
it was wholly irrational to treat plaintiff differently, and that
the different treatment was intentional, DeMuria, 328 F.3d at
707 have not been fulfilled. At the pleading stage in which the
litigation currently finds its home, however, a more general
allegation is sufficient.
While plaintiff is not required pursuant to DeMuria to allege
her claim with the specificity urged by defendants, she is
required to make at least a general allegation of treatment
different from similarly situated persons. This she has not done.
As noted, plaintiff alleges the decision to deny her tenure on
the basis of a parental complaint represents different treatment
because "many teachers eligible for tenure no doubt receive such
complaint," and are still granted tenure. (Docket No. 1, ¶ 69.)
Thus, plaintiff does not allege that other such teachers have
been granted tenure despite the existence of complaints lodged
against them; she merely raises the possibility. This is not
sufficient even at this stage of the litigation. Accordingly, the
fourth cause of action will be dismissed without prejudice.
E. Amendment of the Complaint
If plaintiff so chooses, and it is appropriate to do so, she
will be permitted to amend the complaint to correct the pleading
defects associated with the due process (third cause of action)
and equal protection (fourth cause of action) claims described
above, and excise the second and fifth causes of action.
Counsel for plaintiff is reminded, however, in the strongest
terms possible, of his obligation to make only those allegations
which he has a good faith belief are true. In this regard, it is parenthetically noted that
defendants in their reply papers have offered the opportunity to
inspect plaintiff's personnel file to verify that the reasons
given to her for her termination are absent. Counsel's ethical
duty applies to allegations relating to both the due process and
equal protection claims.
Plaintiff's second and fifth causes of action must be
dismissed with prejudice because no First Amendment interest of
public concern is implicated by defendants' alleged conduct. The
third and fourth causes of action will be dismissed without
prejudice for certain pleading-related defects, supra.
Accordingly, it is
1. Defendants' motion to dismiss the second, third,
fourth, and fifth causes of action asserted in the complaint
2. The second and fifth causes of action are DISMISSED with
3. The third and fourth causes of action are DISMISSED
4. Plaintiff is directed to file and serve, if desirable and
appropriate, an AMENDED COMPLAINT on or before July 26, 2004,
reflecting the dictates of this opinion;*fn3
5. Defendants shall file and serve an ANSWER on or before
August 9, 2004; and
6. The remainder of defendants' motion is DENIED without
IT IS SO ORDERED.