United States District Court, N.D. New York
September 30, 2004.
LOUIS J. CIOFFI, III, Plaintiff,
AVERILL PARK CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION; AVERILL PARK HIGH SCHOOL; AVERILL PARK CENTRAL SCHOOL DISTRICT; THOMAS P. McGREEVY; and MICHAEL J. JOHNSON, Defendants.
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
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
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
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
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
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 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
1. Defendants' motion for summary judgment is GRANTED; and
2. The complaint is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
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