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Weintraub v. Board of Education of the City of New York

April 28, 2006


The opinion of the court was delivered by: Glasser, Senior District Judge.



Plaintiff, David Weintraub ("Weintraub" or "plaintiff"), brings claims against defendants for retaliatory adverse employment action in violation of his First Amendment rights; false arrest and malicious prosecution in violation of state law, the Fourth Amendment of the Constitution, and 42 U.S.C. § 1983; and deprivation of his property and liberty in violation of the Fourteenth Amendment and 42 U.S.C. § 1983.*fn1 The claims arise out of a series of events that took place when plaintiff was employed by the New York City Department of Education. Named as defendants are the Board of Education of the City School District of the City of New York (the "Board"); Community School District No. 32 (the "District"); Douglas Goodman, ("Goodman"), Assistant Principal of P.S. 274; Daisy O'Gorman ("O'Gorman"), the Principal of P.S. 274; Felix Vazquez ("Vazquez"), the Superintendent of Community School District No. 32; Frank Miller, ("Miller"), a New York Police Department school security officer at P.S. 274; Aida Serrano, ("Serrano"), a teacher at P.S. 274; Dawn Felder, the mother of a student at P.S. 274; Jamin Felder, a student at P.S. 274; Lawrence Becker ("Becker"), Chief Administrator for the Division of Personnel Investigations of the Board; and Jerry Cioffi ("Cioffi"), Deputy Superintendent of the Chancellor's District of the Board.

Before the Court is defendants' motion for summary judgment on all claims, pursuant to Fed. R. Civ. Proc. 56.


I. Plaintiff's Initial Conflict With Goodman

In September, 1998, Weintraub began teaching fifth grade at PS 274 in Brooklyn. ( 56.1, ¶ 1). During his first few months at PS 274, Weintraub's relationship with administrators at PS 274 was unremarkable; he neither complained about anything out of the ordinary at the school, nor did he hear anything negative about his performance. ( Pl.Ex. 11 at 49).

On Friday, November 6, 1998, Weintraub referred a student to Goodman for disciplinary action after that student threw a book at Weintraub in the classroom. The student returned to Weintraub's classroom shortly thereafter. ( 56.1, ¶ 1). That same student again threw books at Weintraub on Monday, November 9, 1998. Again Weintraub referred the student to Goodman, and again Goodman returned the student to Weintraub's class shortly thereafter. ( 56.1, ¶ 3).

In deposition testimony, Weintraub stated:

"I was upset because a child was throwing books and I was upset that nothing was done about it. And I was upset that if this child could do this to me, that it would put the danger of [sic] other students at risk and, unfortunately ... he put a kid in the hospital later in the year."

(Def. Ex. A at 51).

Weintraub states that he told Goodman that "[i]f nothing is going to be done about this, I will have to file a grievance because it is not an environment a teacher would want to go to where a child is allowed to throw a book at teachers." ( Ex. A. at 47). Weintraub told other teachers at the school about the incident and his intention to file a grievance, and filed that grievance through his union representative. ( 56.1, ¶ 4). Weintraub alleges that these complaints precipitated a series of retaliatory actions against him that were orchestrated by Goodman and other school officials. ( Pl.Ex. 11 at 53-54).

II. The Breakfast Incident

On November 17, 1998, at 8:45 a.m., Weintraub wrote a ten-minute breakfast pass for a girl who said she had been accidentally locked out of school breakfast by security. Goodman immediately sent the child back to the classroom. Later that day, according to Weintraub, Goodman confronted him in a "snide, condescending voice," questioning his judgment and "yell[ing] at [him] ... not to do that again." ( Pl.Ex. 53). On November 30, 1998, Weintraub sent a letter to O'Gorman suggesting that Goodman's remarks were part of "a larger pattern of acts of intimidation, harassment, workplace abuse, and deliberate attempts to undermine [his] authority, which impairs [Weintraub's] ability to provide [his] student's [sic] with the education they deserve," and requested that she investigate the incident. ( Id.). O'Gorman responded the next day, stating that she also believed that the breakfast pass was inappropriate and noting that Goodman "denies [the allegations of harassment] and indicates you are making these allegations because he has expressed his concern to you over the fact that every time he visits your classroom you are yelling at your students because you cannot control the class." ( Pl.Ex. 54).

III. Allegations of Corporal Punishment

On November 19, 1998 Goodman wrote a letter to Weintraub and Weintraub's personnel file, in which Goodman alleged that students had complained Weintraub was using corporal punishment in the classroom. Goodman instructed him to "improve [his] classroom management." ( Pl.Ex. 2). Though the investigation and reporting of corporal punishment was generally handled by the school guidance counselor, ( Pl.Ex. 75 at 53), Goodman personally filled out the required report documenting these allegations and submitted it to the Board of Education, Office of Special Investigation. ( Pl.Ex. 3).

The allegations were deemed unfounded in January 1999, and Goodman was "directed to inform Mr. Weintraub by the Central Board in writing that he was not guilty of corporal punishment." ( Pl.Ex. 7). To do so, he placed a letter in Weintraub's personnel file that stated, in part, "[o]ur investigations found that although there was no corporal punishment on your part, you did use poor judgment in the way you handled the situation with [the student]. In the future you must show more restraint in handling confrontational situations." ( Pl.Ex. 5). Weintraub grieved this letter, particularly the allegation that he used poor judgment. O'Gorman met with Weintraub and a union representative on January 27, 1999 before denying the grievance on February 2, 1999. ( Pl.Ex. 6). Weintraub filed for a Step II hearing, where, on February 24, 1999, the hearing officer sustained the grievance and ordered the letter removed from Weintraub's file. ( Pl.Ex. 6, 7). At the Step II hearing, Goodman stated that "[he] was directed to inform Mr. Weintraub by the Central Board in writing that he was not guilty of corporal punishment. [He] decided to have it placed in his file so that it would be clear that [he] followed their directive. [He] did not know [he] could have given him this letter without it being placed on his file." ( Pl.Ex. 7).

IV. O'Gorman and Goodman's Classroom Evaluations of Weintraub

A. O'Gorman's observation of Weintraub

On November 19, 1998, O'Gorman placed a letter in Weintraub's personnel file regarding "pedagogical inadequacies" and threatening an unsatisfactory evaluation if Weintraub's practices didn't improve. ( Pl.Ex. 32, 33). O'Gorman stated that she "visited [Weintraub's] classroom and observed its floor covered with garbage indicating [his] failure to maintain proper student discipline and classroom management." ( Pl.Ex. 32). The letter also said that O'Gorman had "informally observed [Weintraub's] classroom and found that students are always talking to one another and that students are out of their seats whenever [she] visit[ed]," and alluded to "several parents" who "have visited [her] office demanding [Weintraub's] removal after arguing to [her] that their children are not learning anything in [Weintraub's] classroom." ( Id.).

Weintraub grieved this letter. The grievance was ultimately arbitrated, and the arbitrator determined that "the November 19, 1998 Observation Report ... from Ms. O'Gorman [was] unfair." The arbitrator ordered the deletion of most of the letter placed in Weintraub's file. ( Pl.Ex. 13). Rather than delete the unfair portion of the letter, thin lines were drawn through the offensive material. ( Pl.Ex. 35).

B. Goodman's observation of Weintraub

On December 7, 1998, Goodman observed Weintraub's class and filed a formal observation report. ( Pl.Ex. 36). Goodman's report contains both positive and critical statements regarding the classroom environment and lesson that he observed, but concludes overall that "[t]he reading lesson I observed was unsatisfactory." ( Id.).

Weintraub challenged this conclusion. At the Step II grievance hearing that was held on January 26, 1999, the hearing officer sustained Weintraub's grievance, stating that "[t]his observation report as written does not warrant an overall unsatisfactory rating." ( Pl.Ex. 37).

C. O'Gorman's year-end evaluation of Weintraub for 1998-99

Based on the single classroom evaluation that had been conducted by Goodman in November 1998, O'Gorman produced two conflicting year-end evaluations in June of 1999. On the first evaluation, received by Weintraub on June 14, 1999, O'Gorman rated Weintraub unsatisfactorily in 18 of 23 categories and recommended denial of certification of completion of probation.*fn2 ( Pl.Ex. 50). O'Gorman gave a copy of that evaluation to Weintraub, but district Superintendent Vazquez never adopted that evaluation as required by school policy. ( Id.). Instead, a week later, O'Gorman delivered to Weintraub a revised evaluation, this time rating him unsatisfactorily on only 6 of 23 categories and recommending only the discontinuation of probationary service. ( Pl.Ex. 51). This evaluation was adopted by Vazquez. ( Id.). Vazquez did not recall in his deposition whether he had seen the earlier version of the review. ( Pl.Ex. 42 at 52-53).

A year later, in June of 2000, an independent "Chancellor's committee" reviewed O'Gorman's evaluation of Weintraub and observed "the complete lack of any evidence or documentation" to support the unsatisfactory ratings and recommendation of discontinuation, and "unanimous[ly] nonconcurr[ed] with the recommendation to discontinue probationary service." ( Pl.Ex. 52.)

V. Allegations of Sexual Abuse

On January 8, 1999, Goodman reported to the Special Commissioner of Investigation for the New York City School District that a former student of Weintraub's, Jamin Felder, had informed his mother, Dawn Felder, that Weintraub had sodomized him. ( Pl.Ex. 55). According to the filed report, Goodman had been informed of the complaint by the school guidance counselor, Ms. Lauria. Goodman further stated that the student had previously complained in October 1998 that Weintraub had "flirted" with him, though Goodman did not report the previous incident, because at the time Goodman found no corroboration of the student's allegations. ( Id.). As a result of this report, Weintraub was immediately reassigned to duty in the nurses's office at PS 274, and subsequently transferred on January 21, 1999 to work at district Superintendent Vazquez's office for the rest of the school year while the charges were investigated. ( Pl.Ex. 19 at 82, 41, 42 at 21).

Lauria, the guidance counselor, testified in her deposition that she recalls Felder making graphic allegations that a teacher sodomized him, but does not recall that Felder identified Weintraub as the assailant, and recalls neither discussing these allegations of abuse with Goodman nor any earlier allegations of flirtation made by Felder against Weintraub. She further stated that she would generally discuss such serious allegations with the principal, not the assistant principal. ( Pl.Ex. 75 at 32-35).

Investigators interviewed Felder several times. They found that he "was not consistent in relating the facts," and in the absence of any evidence or witnesses, closed the investigation. ( Pl.Ex. 55).

Though plaintiff was cleared of any wrongdoing by the investigators, and though defendant Vazquez, the district Superintendent, was notified that the investigation had been closed sometime near the end of the 1998-1999 school year, there is no record of Vazquez or any other administrator notifying Weintraub of the investigation's outcome, nor was Weintraub returned to the classroom. ( Pl.Ex. 42 at 24-25, 43).

VI. Allegations of Abandonment

On January 11, 1999, prior to Weintraub's transfer to the district office as a result of the sexual abuse allegations, Goodman placed a letter in Weintraub's personnel file alleging that Weintraub "[o]n two occasions last week abandoned [his] class." ( Pl.Ex. 8). Goodman stated in the letter that "[o]n Thursday, 1/7/99 I was in the process of observing Ms. Chess. Your class came down unescorted." And on January 8, 1999, Goodman also "observed [Weintraub's] class walking toward Ms. Serrano's room," again, without Weintraub present. ( Id.).

Goodman's letter was accompanied by two letters from the named teachers, Ms. Chess and Serrano. The letter from Chess stated that she didn't see Weintraub when his class was brought to her room on January 7, 1999. The letter from Serrano stated that on January 8, 1999, Weintraub did not bring his students directly to her class but "stood on the other side of the swinging doors," while the students filed in, and that four students did not arrive at her class. ( Pl.Ex. 9, 10). Weintraub denies that the event with Serrano ever happened. ( Def. Ex. B at 49-50). At least one teacher offered a letter stating that Weintraub did not abandon his class on January 8, 1999. ( Pl.Ex. 12).

Weintraub contested the letters placed in his file. At the Step II hearing held on February 24, 1999, he stated that the letters from Goodman, Chess, and Serrano were inaccurate "because [he] did not abandon [his] class. On the two dates in question [he] did make sure [his students] got to their classes. They were in sight at all times." ( Pl.Ex. 34). Goodman reiterated his position from the letter and read a dictionary definition of "abandonment" into the record. The hearing officer found it "clear" that Weintraub did not abandon his class, but also that he did not properly escort his class, in violation of school rules and procedures. The grievance was denied, but ...

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