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United States District Court, N.D. New York

September 30, 2004.

LOUIS J. CIOFFI, III, Plaintiff,

The opinion of the court was delivered by: DAVID HURD, District Judge



  The complaint alleges three causes of action: First Amendment retaliation, due process, and conspiracy to violate plaintiff's civil rights. Defendants move for summary judgment pursuant to Fed.R. Civ. P. 56. Plaintiff opposes. Oral argument was heard on August 27, 2004, in Albany, New York. II. FACTS

  The following facts are not in dispute or are viewed most favorable to the non-moving plaintiff.

  Plaintiff Louis Cioffi ("Cioffi" or "plaintiff") was employed by the defendant Averill Park Central School District ("District") since 1979. He was a part-time social studies teacher and part time Athletic Director from 1981 to 1999. In June 1999 he was promoted to a full-time administrative position, Athletic Director and Director of Physical Education (a tenured position).

  Kevin Earl ("Earl") was hired by the District in 1994. He was a physical education teacher and head varsity football coach.

  The relationship between Cioffi and Earl was acrimonious from the beginning. Plaintiff continuously complained about how Earl ran the football program, saying that the program was out of control.

  Defendant Thomas McCreevy ("McCreevy") was a member of the defendant Averill Park Central School District Board of Education ("School Board") from 1992 to June 30, 2002, and was president from 1998 to June 2002.

  Defendant Dr. Michael Johnson ("Johnson") was Superintendent of Schools during the relevant times. Due to the tension between Cioffi and Earl, Johnson took a direct role in mediating relationships between them beginning in mid-2000. He changed Earl's teaching assignment from the high school to the middle school so he would have less contact with plaintiff. He also directed that plaintiff was to treat Earl fairly.

  During the summer of 2000, Cioffi's criticism of Earl became more public, and newspaper articles and other media coverage appeared regarding the controversy. Plaintiff, at some point in time, recommended that Earl not be reappointed head football coach. Earl was, however, reappointed. After Earl's reassignment to the middle school, there was a public outcry because he would have less contact with the high school football players. A High School Climate Committee was formed to help diffuse the situation.

  In the fall of 2000 it came to light that Cioffi lacked the required Physical Education Certification to hold the position of Director of Physical Education. Johnson asked him to obtain the certification, but plaintiff contended that because of lingering physical effects from an electric shock he received the previous year, he was unable to do so. Therefore, special arrangements were made for plaintiff to remain in the full-time administrative position of Athletic Director by designating another teacher, Rit Aldi (who had the required Physical Education Certification), as Director of Physical Education with a $1,600 per year stipend.

  In November 2000, Cioffi and other teachers went to the School Board to complain about Earl. They complained about Earl's coaching of the football team and accused the football players of using performance-enhancing substances.

  In October 2001, it became known that a hazing incident had occurred in the high school locker room which involved a junior varsity football player. Cioffi complained about the way the incident was handled by the School Board, alleging that there was a cover-up to protect Earl. On November 7, 2001, plaintiff and the high school principal sent identical letters to Johnson, asking for the letters to be forwarded to the School Board. In the letter the plaintiff essentially disclaimed any personal responsibility for the hazing (as did the high school principal in her letter). Johnson and McGreevy were angry when they received the letters. Earl and all the other football coaches were suspended from coaching football for the 2002-2003 school year. Earl has not returned to coaching.

  On January 22, 2002, the School Board informally decided to reorganize some administrative positions in order to save money despite the fact there was no real fiscal crisis. It was decided to abolish plaintiff's position as Athletic Director effective June 2002, and to create a combined Director of Physical Education/High School Assistant Principal position with a starting date of July 2002. Because plaintiff did not have the required Physical Education Certificate, he could not apply for this new position.

  When plaintiff heard that the School Board intended to eliminate his position, he called a press conference. In his January 31, 2002, press conference statement plaintiff was attempting to save his job, defend his personal reputation, blame the administration for the hazing incident, and complain about his treatment at work.

  On February 26, 2002, it was formally announced that Cioffi's Athletic Director position was abolished in the proposed budget.

  Cioffi exercised his right to "retreat" to a teaching position, and taught social studies during the 2002-2003 school year. He acquired his Physical Education Certificate in June 2003, and went to another school district as Director of Athletics and Physical Education in September 2003.


  A. Summary Judgment

  Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

  When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587.

  B. First Amendment

  The elements of a First Amendment retaliation claim are (1) the speech was constitutionally protected; (2) there was an adverse employment decision; and (3) a causal connection exists between the speech and the adverse employment decision. Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). There does not seem to be a serious dispute that there was an adverse employment decision, abolition of plaintiff's position, so only the first and third elements need be discussed.

  In order to be protected by the First Amendment, speech by a public employee must be regarding a matter of public concern. White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1058 (2d Cir. 1993). Personal workplace grievances are not protected. Connick v. Myers, 461 U.S. 138, 145-146 (1983). A causal connection between the protected speech and the adverse employment decision may be established with direct evidence of retaliatory animus or circumstantial evidence such as temporal proximity. Morris, 196 F.3d at 110.

  Other than general complaints he made about Earl over the years from 1994 to early 2002, plaintiff alleges only two specific incidents of speech. Plaintiff's general complaints about Earl over the years were employment matters between a supervisor and his subordinate. Even if considered matters of public concern, there was no causal connection established between complaints that occurred over nearly a decade and the eventual abolition of plaintiff's position. Lack of a causal connection is particularly apparent in light of his promotion to a full-time tenured administrative position in 1999 and his retention in that position after the fall of 2000 despite lacking the required Physical Education Certificate.

  The first specific incident of speech alleged is the November 7, 2001, letter to the School Board. The letter was an attempt by plaintiff to avoid personal responsibility for the hazing incident. This was an employment matter, since as Athletic Director plaintiff would seemingly be responsible for the action or inaction of athletic coaches under whose watch the hazing incident occurred.

  The second specific incident of speech alleged is the January 31, 2002, press conference. The press conference was called by the plaintiff in response to hearing that defendants intended to abolish his position. He called the press conference in a last-ditch effort to save his job. Clearly this is an employment matter. Both specific incidents of speech were employment matters not protected by the First Amendment, rather than matters of public concern entitled to free speech protection. Even if considered to be matters of public concern, there is no evidence of a causal connection. There is no direct evidence of retaliatory animus. Also, there is no circumstantial evidence such as temporal proximity from which an inference of retaliation could be made. The letter was written in November 2001, and the decision to abolish plaintiff's position was not made until January 2002. Further, the press conference occurred after the defendants already made the informal decision to abolish plaintiff's position — in fact, plaintiff called it in response to that very decision. See Brown v. Massena Memorial, No. 99-CV-1729, 2000 WL 381941, at *5 (N.D.N.Y. Apr. 11, 2000) (noting that the protected speech must have occurred prior to the employment action in order for there to be a causal connection).

  Thus, even viewing the evidence favorable to the plaintiff, the general complaints and the two specific incidents, the November 2001 letter and the January 2002 press conference, involved personal employer/employee matters between plaintiff and defendants, rather than matters of public concern. Even if considered to be matters of public concern, there is no evidence of a causal connection between the general complaints, the letter, and/or the press conference and the abolition of plaintiff's position.

  Plaintiff's First Amendment claim will be dismissed.

  C. Due Process

  Plaintiff was not entitled to a predeprivation hearing because New York Education Law sections 2510 and 3013 were followed to properly abolish his position. See Elmendorf v. Howell, 962 F. Supp. 326, 332 (N.D.N.Y. 1997). A possible exception exists when a new position is created and the person holding the abolished position could be appointed to the new position. Id. at 333. In this scenario, a due process violation could occur if the person was not appointed to the new position. However, the new position must be "similar" and the individual must be qualified for the new position. Here, even if the new position of Director of Physical Education/High School Assistant Principal created by the School Board is considered similar to Athletic Director, plaintiff was not qualified for the new position because he did not have the Physical Education Certificate. Therefore, he does not fall into the exception.

  Further, Article 78 of the New York Civil Practice Law and Rules provided an adequate remedy in the form of a post deprivation hearing, to which plaintiff did not avail himself.

  Plaintiff's due process claim will be dismissed.

  D. Conspiracy/Individual Defendants

  With regard to the conspiracy claim, there can be no conspiracy between the School District and its officers, employees, and Board of Education members because they are considered a single entity. See Hull v. Cayuga Valley Bd. of Educ., 926 F.2d 505, 509-10 (6th Cir. 1991) (citing Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978). In addition, the two individual defendants, Johnson and McGreevy, are entitled to absolute legislative immunity because the position was eliminated as part of the budgetary process, a legislative activity. See Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir. 2003). There is also no indication that the claims in the complaint are made against the individual defendants acting in anything other than their legislative capacities, so there is no exception to immunity. See Bogan v. Scott-Harris, 423 U.S. 44, 55 (1998) (finding that official performing budgetary functions is entitled to absolute legislative immunity despite any individual intent or motive).

  The conspiracy claim will be dismissed.


  Plaintiff's claims involve personal conflicts between himself and the defendants involving his duties and responsibilities as Athletic Director for the school district. These personal employment conflicts between an employee and his supervisor or his employer do not come close to rising to the level of a constitutional or civil rights claim. Therefore, the entire complaint, having no merit, must be dismissed.

  Accordingly, it is

  ORDERED, that

1. Defendants' motion for summary judgment is GRANTED; and
2. The complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly.

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