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United States District Court, N.D. New York

July 13, 2004.

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



  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.


  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 superiors.

  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 tenure.

  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 herein.

  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 dismissed.

  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

  ORDERED that

  1. Defendants' motion to dismiss the second, third, fourth, and fifth causes of action asserted in the complaint is GRANTED;

  2. The second and fifth causes of action are DISMISSED with prejudice;

  3. The third and fourth causes of action are DISMISSED without prejudice;

  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 prejudice.


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