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December 22, 2004.

EUGENE W. LEVICH, Plaintiff,
THE LIBERTY CENTRAL SCHOOL DISTRICT, DR. BRIAN HOWARD, Former Superintendent of the Liberty Central School District, EDWARD RHINE, Interim Superintendent of the Liberty Central School District, ROBERT L. CHAKAR, JR., Principal, Liberty Central High School, and DR. PHILLIP OLSEN, WILLIS OLIVIO, MATTHEW FRUMESS, ARMAND SEIBERT, FRANK DeMAYO, CHRIS MURPHY, CHARLES BARBUTI, JOYCE BURNETT and ROBERT DeSTEFANO, Members of the Board of Education of the Liberty Central School District, Defendants.

The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Eugene Levich brought this action against defendants Liberty Central School District (the "School District"), a public school district in the State of New York, Dr. Brian F. Howard, former Superintendent of the School District, Edward Rhine, Interim Superintendent of the School District, Robert L. Chakar, Jr., Principal of the Liberty Central High School (the "High School" or "School") and, members of the Board of Education: Dr. Philip Olsen, Willis Olivio, Matthew Frumess, Armand Seibert, Frank DeMayo, Chris Murphy, Charles Barbuti, Joyce Burnett and Robert DeStephano in their individual and official capacities (collectively the "defendants") under 42 U.S.C. § 1983 alleging deprivation of rights, privileges and immunities secured by the First Amendment of the United States Constitution.*fn1 Plaintiff seeks compensatory damages from the School District and compensatory and punitive damages from all other defendants.*fn2 Defendants move for summary judgment pursuant to FED. R. CIV. P. 56 to dismiss plaintiff's Complaint in its entirety. For the reasons set forth herein, the motion is granted.


  Unless otherwise noted, the following facts are uncontested. Plaintiff is a tenured secondary school teacher employed by the School District (Defs. Rule 56.1 Stmt. ¶ 1.) and he is certified by the State of New York to teach social studies for grades 7-12. (Id.) Plaintiff has taught classes principally in World or Global History at the School District since 1973. (V. Complt. ¶ 11.) Prior to the occurrences at issue in the instant action, plaintiff had not been subject to any disciplinary action and did not receive any indication that he was not performing his duties competently.*fn3 (Hr'g Officer's Opinion and Award at 24.)

  In October 2001, plaintiff created and chaired a committee of the Liberty Faculty Association to assess the competence of the School District's administrators. (Defs. Rule 56.1 Stmt. ¶ 3.) This assessment involved the use of a questionnaire to be answered by the teachers in the School District (the "Faculty Survey"). (Id.) Based upon the Faculty Survey, the committee expressed the view that the administrators were "incompetent." (Id.) In the spring of 2002, plaintiff appeared before the School District's Board of Education (the "Board of Education") at two of its public meetings and allegedly spoke critically of the School District's administration. (Id. ¶ 4.)

  At the end of the 2001-02 school year, a number of teachers in the social studies department resigned and, as a result, the School District needed an 8th grade teacher. (Id. ¶ 5.) In the spring of 2002, Chakar changed plaintiff's teaching assignment from 9th and 10th grade Global History to one Global History class and four sections of 8th grade American History. (Defs. Rule 56.1 Stmt. ¶ 7.) Defendants claim that plaintiff was selected for this assignment because, among other reasons, he is certified by the State of New York to teach social studies grades 7-12. (Id. ¶¶ 5, 6.) Plaintiff claims that defendants had no legitimate reason to change his teaching assignment. (Pl. Rule 56.1 Stmt. ¶¶ 5, 6.) Plaintiff maintains that, while he is certified by the State of New York to teach social studies grades 7-12, which includes American History, he is inexperienced in that subject area, and there were other members of the social studies department who were available and qualified for the assignment.*fn4 (Levich Reply Aff. ¶¶ 7, 16.) On May 30, 2002, plaintiff sent a memorandum to Chakar wherein he expressed dissatisfaction with his assignment and requested an explanation. (Defs. Rule 56.1 Stmt. ¶ 8.) On June 14, 2002, Chakar responded to plaintiff by letter and set forth reasons for implementing the changes. (Id. ¶ 9.)

  Plaintiff claims that in response to the change in his teaching assignment two teachers in the social studies department with experience teaching 8th grade volunteered to teach plaintiff's 8th grade American History classes. (Levich Reply Aff. ¶ 5, Ex. Q.) By letter dated July 25, 2002, to Dr. Philip Olsen, the President of the Board of Education, plaintiff again protested the changes in his teaching assignment. (Defs. Rule 56.1 Stmt. ¶ 10.) On August 29, 2002, another member of the High School social studies department resigned, necessitating, according to defendants, a further change in teaching assignments. (Id. ¶ 12.) Thereafter, an 11th grade American History class was added to plaintiff's teaching assignment replacing his Global History class. (Id. ¶ 13.)

  On September 4, 2002, plaintiff sent a letter (the "September 4th letter" or "plaintiff's letter") to the parents of his 11th grade American History class wherein he disavowed any knowledge of American History and disclaimed responsibility should any of the students in his American History class fail the course or the Regents exam. (Defs. Rule 56.1 Stmt. ¶ 15.) As a result of plaintiff's letter, many parents became concerned and contacted the High School seeking an explanation. (Id. ¶ 17.)

  In response to plaintiff's letter, on September 9, 2002, Howard sent plaintiff a memorandum which reiterated the reasons for plaintiff's reassignment. (Id. ¶ 19.) Howard also directed plaintiff to write a letter to the students and parents of his American History class, no later than September 17, 2002, apologizing for the September 4th letter and confirming his commitment to discharge his teaching responsibilities effectively. (Id.) Howard also warned plaintiff that failure to draft the apology could result in disciplinary action up to and including termination, pursuant to New York Education Law § 3020-a. (Id.) Plaintiff failed to comply with this directive. (Id.) On September 11, 2002, Howard observed plaintiff's 11th grade American History class. (Id. ¶ 20.) The following day, Howard sent plaintiff a memorandum directing him to respond to a number of concerns based on his class observation. (Id. ¶ 21.) On September 17, 2002, plaintiff wrote to Howard protesting Howard's observation of his class, but plaintiff did not apologize as had been previously directed. (Id. ¶ 22.) By memorandum dated September 18, 2002, Howard again directed plaintiff to write a letter of apology for his September 4th letter and gave him until September 20, 2002 to comply. (Id. ¶ 23.) Once again, Howard cautioned plaintiff that failure to comply could result in a § 3020-a disciplinary proceeding. (Id.) Plaintiff did not meet the September 20th deadline and never wrote a letter of apology. (Id. ¶ 24.)

  According to plaintiff, in the period of time following the September 4th letter, all of the tenured members of the social studies department signed a letter of protest in support of plaintiff. (Levich Reply Aff. ¶ 7.) On September 18, 2002, Lance Fialkoff, a new member of the social studies department, sent a letter to Howard and Chakar wherein he asked to be reassigned to teach American History, and suggested that his schedule be replaced with plaintiff's, since they were each interested in teaching classes in the subject area currently assigned to the other. (Id. ¶ 8.) Fialkoff explained that when he was hired in August he was told that he would be teaching American History, but that just prior to the school year he was informed that he would instead teach five sections of Global History. (Id.)

  On September 30, 2002, the School District reinstated plaintiff's original teaching assignment, which meant that plaintiff would assume all of the responsibility for the classes then assigned to Fialkoff and Fialkoff would take over plaintiff's 8th grade American History classes. (Randazzo Aff., Ex. F.) The same day, Howard sent a letter to the parents to advise them of the changes. (Id.)

  On October 11, 2002, Howard issued a memorandum to plaintiff setting forth an "improvement plan," which required plaintiff to submit lesson plans and other additional information on student performance. (V. Complt. ¶ 33, Ex. L.) Howard cited plaintiff's recent failure rates and certain statements in plaintiff's September 4th letter as reasons for the improvement plan. (Id.)

  On October 16, 2002, the School District advised plaintiff that the Board of Education found probable cause to bring a disciplinary proceeding against him under § 3020-a for his failure to write a letter of apology as directed by Howard. Plaintiff was charged with two counts of insubordination. (Defs. Rule 56.1 Stmt. ¶ 25.) Shortly thereafter, plaintiff requested a hearing on the matter. (Id. ¶ 26.)

  On November 8, 2002, plaintiff filed his Complaint in the instant action and sought an Order to Show Cause why a preliminary injunction should not issue pursuant to FED. R. CIV. P. 65(a) enjoining defendants from continuing their pending § 3020-a disciplinary proceeding until a hearing and determination on the merits of this action. See Levich v. Liberty Cent. Sch. Dist., 258 F. Supp. 2d (S.D.N.Y. 2003) (Conner, J.). This Court denied the preliminary injunction by Order, dated April 23, 2003. Id. Plaintiff's § 3020-a hearing was held on October 17, 2003, and the hearing officer issued an Opinion and Award on May 5, 2004. The hearing officer found plaintiff guilty of each charge of insubordination and imposed a $1,000.00 fine.*fn5 (Defs. Rule 56.1 Stmt. ¶ 27; Hr'g Officer's Opinion and Award at 24.) Plaintiff did not challenge or appeal the hearing officer's Opinion and Award. (Defs. Rule 56.1 Stmt. ¶ 30; Pl. Rule 56.1 Stmt. ¶ 30.)

  During the § 3020-a hearing, plaintiff argued that he could not be found guilty of insubordination because his September 4th letter is protected speech under the First Amendment. (Defs. Rule 56.1 Stmt. ¶ 28; Pl. Rule 56.1 Stmt. ¶ 28.) Plaintiff maintained that the School District brought the disciplinary proceeding to retaliate against him for his participation in developing the Faculty Survey and for comments he made at Board of Education meetings. (Id.) The hearing officer determined that plaintiff's September 4th letter was not speech protected by the First Amendment and, even if it were, the School District's need to run the School efficiently and without disruption was a sufficiently compelling reason for infringement of plaintiff's First Amendment rights. (Hr'g Officer's Opinion and Award at 19.) The hearing officer found no credible evidence of a nexus between plaintiff's participation in the Faculty Survey, his comments at the Board of Education meetings and the § 3020-a charges. (Id. at 22-23.) Defendants' motion for summary judgment followed. Defendants argue that: (1) plaintiff's claims are barred by the doctrine of collateral estoppel; (2) defendants did not violate plaintiff's First Amendment rights; and (3) defendants are entitled to the defense of qualified immunity. (Defs. Mem. Supp. Sum. J. at 8, 10, 17.)


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