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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


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 without prejudice.


  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. (Id.)

  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[1][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 Cir. 1978).

  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 ...

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