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Behrend v. Klein

September 25, 2006

INGE G. BEHREND, PLAINTIFF,
v.
JOEL KLEIN, CHANCELLOR OF THE NEW YORK CITY BOARD OF EDUCATION, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, MICHELLE LLOYD-BEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNITY SUPERINTENDENT OF DISTRICT 27, LAWRENCE BECKER, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF ADMINISTRATOR, DIVISION OF HUMAN RESOURCES, AND THE NEW YORK CITY BOARD OF EDUCATION (D/B/A THE NEW YORK CITY DEPARTMENT OF EDUCATION), DEFENDANTS.
BETH HUDSON, PLAINTIFF,
JOEL KLEIN, CHANCELLOR OF THE NEW YORK CITY BOARD OF EDUCATION, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, MICHELLE LLOYD-BEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS COMMUNITY SUPERINTENDENT OF DISTRICT 27, LAWRENCE BECKER, INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF ADMINISTRATOR, DIVISION OF HUMAN RESOURCES, AND THE NEW YORK CITY BOARD OF EDUCATION (D/B/A THE NEW YORK CITY DEPARTMENT OF EDUCATION), DEFENDANTS.



The opinion of the court was delivered by: Garaufis, United States District Judge.

MEMORANDUM & ORDER

Defendants Joel Klein, Chancellor of the New York City Board of Education, individually and in his official capacity, Michelle Lloyd-Bey, individually and in her official capacity as Community Superintendent of District 27, Lawrence Becker, individually and in his capacity as Chief Administrator, Division of Human Resources, and the New York City Board of Education (d/b/a The New York City Department of Education) (collectively, "Defendants"), move to dismiss the complaints of Plaintiff Inge G. Behrend ("Behrend") and Beth S. Hudson ("Hudson") (collectively, "Plaintiffs") pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Plaintiffs move to consolidate their cases. For the reasons set forth below, Plaintiffs' motion to consolidate their cases is DENIED, except that I consider Defendants' motions to dismiss Plaintiffs claims together. Defendants' motion is DENIED as to Plaintiffs' due process claims, and GRANTED as to Plaintiffs' equal protection and state claims.

I. FACTUAL BACKGROUND

As this is a motion to dismiss under Fed. R. Civ. P. 12(b)(6), this recitation of the facts shall presume the truth of all facts as alleged by the Plaintiff, and allow for all permissible inferences in favor of Plaintiff's claims.

A. Facts Regarding Behrend

Behrend began working in New York City public schools as a substitute teacher, between 1988-1989 and again between 1993-1997. (Verified Complaint of Inge G. Behrend, dated Nov. 10, 2004 ("Behrend Compl.") ¶ 17.) From 1997-2002, Behrend worked as a teacher's assistant, receiving in 2001 a New York State license to teach elementary school children, and to teach music classes, and in 2002 a New York City license to teach pre-kindergarten and elementary school classes. (Id. ¶¶ 17-18, Ex. A, B.) In 2002, Defendants hired Behrend as a probationary pedagogical employee to teach pre-Kindergarten classes in P.S. 108Q. (Id. ¶ 21.) At the end of the 2002-2003 school year, Behrend received a 'satisfactory' annual review. (Id. ¶ 22, Ex. C.) In 2003-2004, Plaintiff received critical reviews from her supervisors, and at the end of that year received an 'unsatisfactory' annual review. (Id. ¶¶ 23, 29, Ex. D.) Plaintiff responded to these criticisms by letter, alleging that the criticisms were inaccurate and unfair. (Id. ¶ 23, Ex. D.) By letter dated July 14, 2004, the regional superintendent informed Behrend that her probationary employment was discontinued, and her license terminated, as of July 21, 2004. (Id. ¶ 31, Ex. E.) By letter dated July 30, 2004, Behrend learned that she was placed on an "Ineligible List" that prevents Behrend from being employed within the New York City public schools. (Id. ¶ 31, Ex. F.)

B. Facts Regarding Hudson

Hudson began working in New York City public schools as a substitute teacher, between 1996-1998. (Verified Complaint of Beth S. Hudson, dated Nov. 16, 2004 ("Hudson Compl.") ¶ 16.) Around February 1998, Hudson attained two New York City licenses to teach early childhood classes and to teach "common branch subjects." (Id. ¶ 15, Ex. A.) In addition, Plaintiff has a license from the New York State Education Department to teach nursery school, kindergarten, elementary school, and special education classes. (Id. ¶ 17, Ex. B.) In September 2003, Defendants hired Hudson as a probationary pedagogical employee to teach bilingual special education kindergarten classes in P.S. 108Q. (Id. ¶ 20.) In the first months of her position, she received satisfactory reviews and commendations for her teaching performance. (Id. ¶ 21-22.) However, based upon one letter and two classroom observations, Hudson received an "unsatisfactory" rating at the end of the 2003-04 teaching year. (Id. ¶ 28.) By letter dated July 14, 2004, the regional superintendent informed Hudson that her probationary employment was discontinued, and her license terminated, as of July 21, 2004. (Id. ¶ 29-30, Ex. E.) Hudson was also informed by letter dated July 30, 2004 that she was placed on an "Ineligible List" that prevents Hudson from being employed within the New York City public schools. (Id. ¶ 29-30, Ex. F.)

C. Facts Regarding License Termination Process

Chancellor Regulation C-31 provides that upon termination of a city teaching license, probationary employees are placed on an "Ineligible List," and are ineligible for employment in New York City public schools. (Behrend Compl. ¶ 40, 49; Hudson Compl. ¶ 39.) The "Ineligible List" is then disseminated to all school districts in New York City, the State Department of Education, and to "to school districts throughout New York, New Jersey, and Connecticut areas[.]" (Behrend Compl. ¶¶ 12-13; Hudson Compl. ¶¶ 12-13.) New York City Public Schools Bylaws § 4.3.1 provides that Plaintiffs, as probationary employees given an 'unsatisfactory' rating, are entitled to review of that determination. (Behrend Compl. ¶ 34; Hudson Compl. ¶ 33-34.) Review is to be made "as soon as practicable, but in any event not later than one year from the date of the receipt of the rating by the appellant." (Behrend Compl. ¶ 37; Hudson Compl. ¶ 36.) Regulation C-31, issued on October 16, 2002, provides for hearings for probationary employees who are given an 'unsatisfactory' rating. (Behrend Compl. ¶ 36; Hudson Compl. ¶ 35.) Representation of probationary teachers is delegated to the teachers' union, which has sole discretion to appoint the employees' advocates. (Behrend Compl. ¶ 38; Hudson Compl. ¶ 37.) Plaintiffs allege that hearings are routinely conducted later than one year after the determination. (Behrend Compl. ¶ 39; Hudson Compl. ¶ 38) Probationary employees who receive an "unsatisfactory" rating are prohibited from employment in the New York City public schools between the initial determination and the hearing. (Behrend Compl. ¶ 41; Hudson Compl. ¶ 40.)

New York City is the only region in New York State that requires an additional level of licensing to teach in the region. (Behrend Compl. ¶¶ 45, 47; Hudson Compl. ¶¶ 44, 46.) In other regions, a license to teach can only be revoked after a timely hearing with representation by counsel of choice. (Behrend Compl. ¶ 47; Hudson Compl. ¶ 46.) Moreover, termination of Plaintiffs' licenses and placement of them on the "Ineligible List" has resulted in their being unable to secure employment as teachers anywhere in New York State, and has stigmatized them professionally in their search for other teaching positions. (Behrend Compl. ¶¶ 49-51; Hudson Compl. ¶¶ 48-50.)

C. Procedural History

Plaintiffs filed their separate complaints in November 2004, alleging the same causes of action: the Defendants' termination of Plaintiffs' New York City licenses prior to a hearing (1) violated Plaintiffs' rights to due process because of Plaintiffs' property interest in their licenses (Behrend Compl. ¶¶ 53-54; Hudson Compl. ¶¶ 52-53); and (2) Plaintiff's liberty interest in their professional reputation and future employment in their profession (Behrend Compl. ¶¶ 55-60; Hudson Compl. ¶¶ 54-59); (3) violated the Privileges and Immunities Clause of the New York Constitution (Behrend Compl. ¶¶ 65-66; Hudson Compl. ¶¶ 64-65), and (4) lacked a rational basis under an equal protection analysis (Behrend Compl. ¶¶ 63-64; Hudson Compl. ¶¶ 62-63); (5) conducting the hearing without affording Plaintiff with a right to counsel of choice violated their due process rights (Behrend Compl. ¶¶ 61-62; Hudson Compl. ¶¶ 60-61); (6) Chancellor's regulation C-31 is not authorized by law (Behrend Compl. ¶¶ 67-73; Hudson Compl. ¶¶ 66-72); (7) Defendants' termination of Plaintiffs' licenses was arbitrary and capricious (Behrend Compl. ¶¶ 74-75; Hudson Compl. ¶¶ 73-74); and (8) Defendants' termination of Plaintiffs' licenses and placement of Plaintiffs on the "Ineligibility List" constitute tortious interference with Plaintiffs' contractual relationships and economic advantage (Behrend Compl. ¶¶ 76-79; Hudson Compl. ¶¶ 75-78).

The parties consented to consolidate the cases for the purposes of discovery. Plaintiffs now move to consolidate their cases for trial purposes, and Defendants move to dismiss Plaintiffs' due process claims based on their property and liberty interests, equal protection, and state law claims.*fn1

II. DISCUSSION

A. Motions to Consolidate

The Federal Rules of Civil Procedure Rule 42(a) provides that "[w]hen actions involving a common question of law or fact are pending before the court, . . . [the court] may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."Fed. R. Civ. P. 42(a). Upon finding that the actions involve common questions of law or fact, this court "has broad discretion in determining whether consolidation is appropriate," and must balance the efficiency gained through consolidation against possible prejudice to the parties. Johnson v. ...


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