United States District Court, S.D. New York
December 9, 2005.
DONNA McGUIRE, Plaintiff,
SHEILA WARREN, sued in her Individual Capacity, and COUNTY OF ORANGE, Defendants.
The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
OPINION AND ORDER
Plaintiff Donna McGuire brings this § 1983 claim against
defendants Sheila Warren and the County of Orange (the "County")
claiming violations of her First and Fourteenth Amendment rights
as well as breach of contract. Specifically, plaintiff claims
that the defendants fired her in retaliation for a letter she
wrote while serving as an independent government contractor and
divested her of her property and liberty interests in her
contract without due process of law. Defendants move to dismiss
the Complaint under FED. R. CIV. P. 12(c) for failure to state a
claim. For the reasons stated herein, defendants' motion to
dismiss is granted with prejudice as to the federal claims, and
plaintiff's state law breach of contract claim is dismissed
This case arises out of a letter plaintiff drafted in her
capacity as a government service provider. (Complt. ¶¶ 26, 27,
51-57.) For background purposes, New York State's early
intervention program permits children under the age of three who
have a disability or developmental delay to receive necessary
services. (Defs. Mem. Supp. Mot. Dismiss at 1.) Under this
program, the County must ensure that families receive services as
outlined in an individualized family plan. (Id. at 2.) The
County contracts with service providers either individuals or
social service organizations to meet these requirements.
McGuire, a certified special educator, provided early
intervention and preschool services for autistic children. (Id.
at 1; Complt. ¶¶ 5, 21.) Warren serves as the County's Director
of Intervention Services. (Complt. ¶ 12.) Beginning around 1997,
plaintiff and defendants entered into yearly contracts under
which plaintiff would provide early intervention special
education services to qualified children for the County. (Id. ¶ 6.) On December 9,
2002, McGuire became the director of Bright Beginnings, an agency
providing early intervention and preschool programs. (Id. ¶
21.) In July 2004, McGuire signed a contract with the County
requiring her to provide early intervention services for hourly
remuneration.*fn1 (Id. ¶ 25.) Warren, as Director of
Intervention Services, was responsible for supervising McGuire's
contract. (Id. ¶ 13.)
In providing these services at the Bright Beginnings Center,
McGuire employed the applied behavior analysis (hereinafter "ABA
services"). (Id. ¶ 8.) This method could be performed either at
a day care facility or at a child's home. (Id. ¶¶ 8, 14, 17.)
From 2001 to 2004, certain parents of autistic children requested
that the County provide home-based ABA services for their
children. (Id. ¶ 14.) Warren allegedly opposed this
request.*fn2 (Id. ¶¶ 15, 18-19.) Warren apparently
believed McGuire supported the parent's requests, and criticized
her for promoting such services. (Id. ¶ 16.)
The level of ABA services a child receives is determined by
either the local school board or the trustees of the school
district, based on recommendations made by the Committee on
Preschool Special Education (hereinafter "CPSE").*fn3 (Defs.
Mem. Supp. Mot. Dismiss at 4.) The CPSE is responsible for determining if a child is eligible for preschool
services as well as the type and level of services the child
should receive. (Id. at 4-5.)
In August 2004, after a CPSE meeting was held concerning a
specific child, the child's parent asked plaintiff to write a
letter to the CPSE Chairperson supporting the continuation of
services at an integrated day care center that the child was
attending. (Complt. ¶ 26.) Plaintiff wrote the letter. (Id.)
After Warren learned that plaintiff had prepared the letter and
sent it to the CPSE chairperson, Warren "directed Bright
Beginnings to remove [p]laintiff from all cases and not accept
new cases `until the contractual implications are reviewed by the
County.'" (Defs. Mem. Supp. Mot. Dismiss at 5 (citing Complt. ¶
27).) On September 21, 2004, Warren put in writing her directive
removing McGuire from all Bright Beginnings cases effective
September 17, 2004.*fn4 (Complt. ¶ 29.) This directive was
followed by an e-mail from defendants dated September 28, 2004
that terminated plaintiff's contract effective October 31, 2004.*fn5 (Id.
¶ 30.) This "urgent" e-mail was allegedly sent to a total of 144
individuals involved in the early intervention program and
announced the termination of plaintiff's contract. (Id. ¶ 31;
Defs. Mem. Supp. Mot. Dismiss at 6; Wong-Pan Decl., Ex. C.)
Plaintiff was not sent a copy of this e-mail nor notified that it
had been sent. (Complt. ¶ 32.) Plaintiff was afforded no
opportunity to defend or explain her conduct before the e-mail
was circulated. (Id. ¶ 33.)
After the e-mail was sent, an attorney for Bright Beginnings
allegedly contacted defendants, questioned the legal propriety of
their actions and demanded that Warren specify any violation of
law committed by plaintiff or Bright Beginnings. (Id. ¶ 37.)
Defendants did not make a substantive response to this demand,
but rather offered to reinstate plaintiff to her prior status
with a new contract provided she forfeit the right to sue the
defendants for wrongful termination or any other violation of her
legal rights. (Id. 39.) Plaintiff refused this offer and was
not permitted to resume her work for the County. (Id. ¶ 40.) On
October 8, 2004, plaintiff received notice that her contract had
been unconditionally reinstated. (Id. ¶¶ 42-43.) Defendants
notified other providers and service coordinators by e-mail that
plaintiff's contract had been reinstated. (Id. ¶¶ 42-43; Defs.
Mem. Supp. Mot. Dismiss at 7.)
Article 16 of the parties' contract provides a termination
clause, which states:
The COUNTY may, by written notice to VENDOR effective
upon mailing, terminate this Agreement in whole or in
part at any time (1) for the COUNTY's convenience,
(2) upon the failure of VENDOR to comply with any of
the terms or conditions of this agreement, or (3)
upon the VENDOR becoming insolvent or bankrupt.
(Defs. Mem. Supp. Mot. Dismiss at 7; Wong-Pan Decl., Ex. A.) DISCUSSION
1. Standard of Review
On a motion to dismiss, the issue is "whether the claimant is
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds,
Davis v. Scherer, 468 U.S. 183 (1984). A complaint should not be
dismissed for failure to state a claim "unless it appears beyond
doubt that the plaintiff can prove not set of facts in support of
his claim which would entitle him to relief." Padavan v. United
States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe,
449 U.S. 5, 10 (1980)). Generally, "[c]onclusory allegations or
legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss." 2 James Wm. Moore et
al., MOORE'S FEDERAL PRACTICE § 12.34[b] (3d ed. 1997); see
also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d
Cir. 1995). Allegations that are so conclusory that they fail to
give notice of the basic events and circumstances on which
plaintiff relies are insufficient as a matter of law. See Martin
v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d
On a motion to dismiss pursuant to Rule 12(c), a court must
accept as true all of the well pleaded facts and consider those
facts in the light most favorable to the plaintiff. See FED. R.
CIV. P. 12(c); Irish Lesbian & Gay Org. v. Giuliani,
143 F.3d 638, 644 (2d Cir. 1998). The complaint need not set forth all the
evidence supporting the claim; it need only provide "a short and
plain statement of the claim showing that the pleader is entitled
to relief." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 514
(2002). Furthermore, in assessing the legal sufficiency of a
claim, the court may consider only the facts alleged in the
complaint, and any document attached as an exhibit to the
complaint or incorporated in it by reference. See FED. R. CIV.
P. 10(c); Dangler v. N.Y. City Off Track Betting Corp.,
193 F.3d 130, 138 (2d Cir. 1999) (citations omitted). II. First Amendment Claim
To state a claim under § 1983 for retaliation in violation of
the First Amendment, a plaintiff must allege: (1) that her speech
was constitutionally protected; (2) that she suffered an adverse
employment action; and (3) that a causal connection exists
between the protected speech and the adverse employment action.
See Washington v. County of Rockland, 373 F.3d 310, 320 (2d
Cir. 2004). The First Amendment protects independent contractors
from termination of an at-will contract in retaliation for
exercising the right of free speech. See Bd. of County Com'rs v.
Umbehr, 518 U.S. 668, 678 (1996). "To prevail, [the independent
contractor] must show that the termination of his contract was
motivated by his speech on a matter of public concern, an initial
showing that requires him to prove more than the mere fact that
he criticized [the government] before they terminated him." Id.
A. Constitutionally Protected Speech
For speech to be protected under the First Amendment, it must
first relate to "any matter of political, social or other concern
to the community." Connick v. Myers, 461 U.S. 138, 146 (1983).
The determination of whether a particular instance of speech
relates to a matter of public concern is a question of law for
the court, and must be "determined by the content, form, and
context of a given statement, as revealed by the whole record."
Id. at 148; see Hanig v. Yorktown Cent. Sch. Dist.,
384 F. Supp. 2d 710, 722 (S.D.N.Y. 2005) (Conner, J.). In making its
determination, the court should focus on the motive of the
speaker, and attempt to discern whether the speech was calculated
to redress personal grievances or whether it had a broader public
purpose. See Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.
1999); Hanig, 384 F. Supp. 2d at 722. The key inquiry is
whether the statements were made by plaintiff in her role as a
disgruntled employee or her role as a concerned citizen. See Lewis, 165 F.3d at 163-64, see also Hanig,
384 F. Supp. 2d at 722.
It is unclear whether McGuire was fired in retaliation for her
speech. The Complaint indicates that Warren advocated fewer hours
of home-based ABA services because she "strongly supported"
preschool services in a center-based setting. (Complt. ¶¶ 14, 15,
16, 18.) The letter McGuire drafted and sent to the CPSE
Chairperson expressed support for continuing services at an
integrated day care center. Thus the letter was in accord with
Warren's apparent position. (Id. ¶ 26.) We fail to see how
McGuire can be fired in retaliation for a letter supporting
Even if this is incorrect, plaintiff asserts that her speech is
protected because "speech centered around the care and education
of special education students touche[s] upon matters of public
concern." (Pl. Mem. Opp. Mot. Dismiss at 8 (citing Fales v.
Garst, 235 F.3d 1122, 1124 (8th Cir. 2001)).) However,
plaintiff's reliance on this statement is misplaced. In Fales,
the court stated that "speech touches upon [a] matter of public
concern when it is a matter of political, social, or other
concern to community, but not when [an] employee speaks upon
matters of only personal interest." 235 F.3d at 1124 (citing
Kincade v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir.
1995)). As the Second Circuit has observed, "the mere fact that
one or two of [the] comments could be construed broadly to
implicate matters of public concern does not alter the general
nature of [the] statements." Ezekwo v. N.Y. City Health & Hosps.
Corp., 940 F.2d 775, 781 (2d Cir. 1991).
Home-based ABA services may be an important issue, however it
"do[es] not necessarily become a matter of public concern
simply because in different circumstances the opinions might
become the topic of general interest to the public." Flynn v.
N.Y. City Bd. of Educ., No. 00 Civ. 3775, 2002 WL 31175229, at
*7 (S.D.N.Y. Sept. 30, 2002). In the present context the speech
is not constitutionally protected because plaintiff was not
addressing an issue of general concern for the public. The letter
concerned where one student should receive his preschool services
and whether he was progressing at his present level of services. (Defs. Mem.
Supp. Mot. Dismiss at 13-14.) Although plaintiff's opinion may
have been based on professional judgment, it does not necessarily
follow that this speech was constitutionally protected.
Plaintiff further asserts that the letter was not of personal
interest to her. (Pl. Mem. Opp. Mot. Dismiss at 5, 7.) However,
the parent requested that plaintiff provide the letter to the
CPSE Chairperson, and plaintiff chose to provide the letter.
(Complt. ¶ 26.) The Complaint indicates that plaintiff, at the
request of parents, would "update relevant review committees
concerning the progress of children she was assigned to assist"
and that "[p]laintiff reasonably deemed this to be part of the
services she provided." (Id. ¶¶ 9, 10 (emphasis added).) If
plaintiff so believed, that belief was not reasonable. She
clearly acted outside of the scope of her contractual duties and
in support of the personal interests of the parents and child.
B. The Balance of Interests
Even if the speech is constitutionally protected, the
government may still terminate an employee if the termination
"may be justified when legitimate countervailing government
interests are sufficiently strong." Umbehr, 518 U.S. at 675.
"To determine the extent to which a state may regulate the speech
of its employees, the courts must balance `between the interests
of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.'" Flynn, 2002 WL 31175229, at *5 (citing
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205,
391 U.S. 563, 568 (1968)). The government will prevail if its "legitimate
interests as a contractor, deferentially viewed, outweigh the
free speech interests at stake." Umbehr, 518 U.S. at 685. Even if we had determined that the speech was constitutionally
protected, McGuire's claim would still fail because the
government has a legitimate interest as a contractor to ensure
that the law is followed by those with whom it contracts. McGuire
was not following early intervention procedural requirements.
Indeed, she had been reprimanded for her failure to do so on at
least one past occasion. The government's interest in terminating
the contract outweighs her interest in free speech. Since the
speech is not constitutionally protected, there is no need to
address the other two elements of the § 1983 claim.
III. Fourteenth Amendment
Plaintiff alleges that she was divested of her property and
liberty interests under her contract without due process.
(Complt. ¶¶ 53, 54.) The Fourteenth Amendment protects an
individual's liberty and property from deprivation by a state
government employer without due process. Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 538 (1985). To establish a due
process violation claim, the plaintiff must: (1) specify the
property or liberty interest at stake; (2) demonstrate that the
government has deprived her of that right; and (3) show that the
deprivation was achieved without due process. See Mehta v.
Surles, 905 F.2d 595, 598 (2d Cir. 1990).
A. Property Interest
In order for plaintiff to prevail upon her claim, she must
first establish the existence of a valid property interest. "To
have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it." Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972). Protected interests
are not created by the Constitution: "they are created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law. . . ."
Id. However, "it is relatively clear that a contract dispute,
in and of itself, is not sufficient to give rise to a cause of
action under section 1983. There is a distinction between the
breach of an ordinary contract right and the deprivation of a
protectible property interest within the meaning of the due
process clause." Walentas v. Lipper, 862 F.2d 414, 418 (2d Cir.
1988). Although case law has "accorded procedural due process
protection to interests that `extend well beyond actual ownership
of real estate, chattels, or money,'" the Second Circuit has
"hesitate[d] to extend the doctrine further to constitutionalize
contractual interests that are not associated with any cognizable
status of the claimant beyond its temporary role as a
governmental contractor." S & D Maint. Co. v. Goldin,
844 F.2d 962, 966-67 (2d Cir. 1988) (citing Roth, 408 U.S. at 572). In
S & D Maintenance Company, the plaintiffs claimed that their
contract with New York City to provide maintenance for parking
meters created a property interest. Id. The Second Circuit held
that a property right did not exist because, under the terms of
the contract, the city had the right to terminate the contract
without cause. Id. at 967.
It is undisputed that plaintiff is an independent contractor.
(Pl. Mem. Opp. Mot. Dismiss at 12; Defs. Mem Supp. Mot. Dismiss
at 17.) Article 16 of the parties' contract provides that the
agreement can be terminated "(1) for the COUNTY'S convenience,
(2) upon failure of VENDOR to comply with any of the terms or
conditions of the agreement, or (3) upon the VENDOR becoming
insolvent or bankrupt." (Wong-Pan Decl., Ex. A.) This broad
contract termination provision allows plaintiff to be terminated
without cause and, as in S & D Maintenance Company, prevents
the creation of a property interest in the contract. See
844 F.2d at 966-67.
This reasoning is not altered by the fact that the parties have
renewed their contract for several years. McGuire signed a
contract similar to the one in dispute every year since 1997. (Complt. ¶ 6.) In Abramson v. Pataki, the plaintiffs attempted
to argue that they had a property right in their jobs at the
Jacob Javits Center because their employment was part of "the
long-standing practices of the Javits Center." 278 F.3d 93, 100
(2d Cir. 2002). While the Second Circuit panel was unsure what
the phrase "long-standing practices" meant, they reasoned that
"assuming that the Javits Center has always, since its opening in
1985, employed the appellants in its work, that circumstance
would not create a protectable interest in their continued
employment." Id. at 100-101. That reasoning is applicable here.
Even if the parties had a continued contractual relationship
since 1997, it does not follow that this continued relationship
would create a property interest.
B. Liberty Interest
An entity may have a liberty interest in maintaining its good
name, and thus may be entitled to a hearing to clear any damage
done to its reputation. Kelly Kare, Ltd. v. O'Rourke,
930 F.2d 170, 177 (2d Cir. 1991) (citing Wisconsin v. Constantineau,
400 U.S. 433, 437-39 (1971)). A liberty interest is at stake when the
government's action places on an injured party "a stigma or other
disability that foreclose[s] his freedom to take advantage of
other employment opportunities." Roth, 408 U.S. at 573. "To
prevail on such a liberty-interest claim, a plaintiff must
establish that the information was stigmatizing, false, and
publicized by the state actor." Kelly Kare, 930 F.2d at 177
(citing Brandt v. Bd. of Coop. Educ. Servs., 820 F.2d 41, 43
(2d Cir. 1987)); Quinn v. Syracuse Model Neighborhood Corp.,
613 F.2d 438, 446 (2d Cir. 1980).
The termination of a contract will not amount to a deprivation
of a liberty interest simply because it becomes public knowledge
if there was "nothing false or sufficiently stigmatizing flowing
from this without-cause termination that would amount to a
deprivation of a liberty interest." Kelly Kare,
930 F.2d at 177. The Second Circuit has said: A free-floating liberty interest cannot rest on
speculation that negative implications will flow from
a termination without cause. The supposed
consequences, if any, are too attenuated from the
state action. To recognize such a right would create
a liberty-interest claim whenever a state actor
exercised a contractual option to terminate a
government contract without cause. This we refuse to
Here, defendants had the right to terminate plaintiff's
contract without cause. The notice of termination was sent via
e-mail to early intervention and preschool professionals. The
e-mail contained no language that was stigmatizing or false. The
e-mail simply read "Please see the attached memo regarding the
termination of three provider contracts within Orange County."
(Wong-Pan Decl., Ex. C.) The remainder of the e-mail indicated
which providers, including plaintiff, were terminated and that a
list of new providers would be given to anyone affected by the
change. The subject line of the e-mail is "Urgent-Please Read."
(Id.) Under no construction is this false or stigmatizing. It
simply indicates to the reader that the e-mail needs to be read
promptly and provides important information. Plaintiff points to
the fact that 144 people apparently received this e-mail.
However, these individuals received the e-mail because they were
affected by this change and needed to be notified that they would
have a new service provider. Plaintiff has not been stigmatized
or disabled by the government's action, and therefore has not
been deprived of a liberty interest.
IV. Remaining State Law Claim
A district court may decline to exercise supplemental
jurisdiction over a claim if it "has dismissed all claims over
which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). When
determining whether to exercise supplemental jurisdiction, a
district court has "considerable discretion over what state law
claims it will include within its supplemental jurisdiction in a particular case." Yaba v. Cadwalader, Wickersham & Taft,
931 F. Supp. 271, 275 (S.D.N.Y. 1996) (quoting Cushing v. Moore,
970 F.2d 1103, 1110 (2d Cir. 1992)). Accordingly, as all federal
claims have been dismissed, we exercise our discretion and
decline to retain supplemental jurisdiction over plaintiff's
remaining state law breach of contract claim.
For all of the foregoing reasons, defendants Sheila Warren and
the County of Orange's motion to dismiss is granted with
prejudice as to the federal claims, and plaintiff's state law
breach of contract claim is dismissed without prejudice.
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