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McMahon v. New York City Board of Education

December 12, 2006


The opinion of the court was delivered by: Trager, J


Plaintiff Elihu Hassel McMahon ("plaintiff") brings this case pursuant to 42 U.S.C. § 1983 against his former employer, the New York City Board of Education ("Department of Education"*fn2 and individuals associated with the Department of Education (collectively, "defendants"), alleging that he was retaliated against for exercising his First Amendment right to free speech. Defendants move to dismiss plaintiff's third amended complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure.

Procedural History

Plaintiff, appearing pro se, filed his initial complaint on September 10, 2001. On November 26, 2001, plaintiff filed an amended complaint alleging sex discrimination and violation of his First Amendment rights. On December 28, 2001, plaintiff's claim of gender discrimination was dismissed and plaintiff was ordered to amend his complaint "setting forth specific facts which would establish a causal connection between his speech and the adverse employment action taken against him" (the "Dec. 28, 2001 Order").

In response to the Dec. 28, 2001 Order, plaintiff timely filed a second amended complaint, to which he attached a number of exhibits, on February 25, 2002. Defendants moved to dismiss the second amended complaint in July 2002. Plaintiff then retained counsel, requested and was granted time to amend the complaint yet again, and filed a third amended complaint ("complaint") devoid of exhibits, in January 2003. Subsequently, defendants moved to dismiss the third amended complaint. Plaintiff then dismissed his counsel and opposed defendants' motion to dismiss pro se. While the third amended complaint is the subject of defendants' motion to dismiss, for the sake of completeness and in order to view the complaint in the light most favorable to plaintiff, the documents attached to the second amended complaint will also be considered.


Except where otherwise noted, the following facts are taken from the third amended complaint and the documents attached to the second amended complaint. Plaintiff began teaching in the New York City public schools in 1976. Since at least as early as 1987, plaintiff was a tenured chemistry teacher at the Bronx High School of Science ("Bronx Science"), one of New York City's most prestigious magnet schools. Plaintiff claims that he was a well-respected and devoted chemistry teacher at Bronx Science, where he garnered praise from the University of Chicago in 1987 and from the Massachusetts Institute of Technology in both 1987 and 1991 as an outstanding high school teacher. 2nd Am. Compl., Exs. 15-18. In June of 1989, plaintiff co-wrote a letter to the New York Times (the "Times") alleging that a 1987 theft of computers and science equipment at the school was inadequately investigated. 2nd Am. Compl., Ex. 1. The letter was published. 2nd Am. Compl., Ex. 1. Plaintiff alleges that on September 8, 1989, "as a direct result of" the letter, he was removed from his teaching position at Bronx Science and that defendants began a campaign of harassment against him. 3rd Am. Compl. ¶¶ 24-25. Plaintiff attached to his second amended complaint a newspaper article about himself that reports that he was suspended from teaching in December, 1989. 2nd Am. Compl., Ex. 12 (Steve McDonnell, Cleared Teacher Forced to Do Nothing, Bronx Press- Review, April 2, 1992).

Plaintiff has not supplied any information about his working conditions for the intervening eight years, but alleges that on April 30, 1997, he was transferred to Theodore Roosevelt High School ("Roosevelt"). At Roosevelt, plaintiff was not assigned his own classroom, but was a substitute teacher who went to the classes of absent teachers. On October 30, 2000, a hearing was held pursuant to New York Education Law § 3020a, which provides for disciplinary hearings for public school teachers. The hearing transcript, which plaintiff attached to his second amended complaint, is informative in fleshing out some details of plaintiff's tenure at Roosevelt. 2nd Am. Compl., Ex. 10 ("Hearing Tr."). At the hearing, Roosevelt Principal Thelma Baxter ("Baxter") testified that plaintiff did not show up on the first day that he was assigned to Roosevelt and that when he did come to the school, he refused his assignment to teach special education for two days. Hearing Tr. at 77, 83. When plaintiff returned after a two-day absence, he was assigned to teach an English class. Id. at 83. According to Baxter, plaintiff taught the students chemistry instead. Id. at 86-87. Baxter testified that she had never heard of such a thing happening before. Id. at 88. Additionally, Baxter testified that plaintiff refused to follow the school policy of allowing students to come into the class late, instead sending them to the assistant principal's office. Id. at 87. Baxter further testified that plaintiff also tried to exclude students from class for violating the school's dress code by wearing hats, rather than simply asking that they remove their hats, as required by school policy. Id. at 133. She also testified that he said that he did not want to teach students who were not native English speakers. Id. at 135.

On May 13, 1997, plaintiff sent the first of what became a barrage of letters to Baxter complaining about various issues at the school:

* May 13, 1997: Complained about lax enforcement of the school dress code, attendance policies and student profanity. 2nd Am. Compl., Ex. 4.

* May 19, 1997: Complained about being assigned to teach special education students, rebutted allegations of assault and expressed disappointment and discontent with his assignment to Roosevelt. 2nd Am. Compl., Ex. 5.

* May 23, 1997: Complained about the general state of Roosevelt and Baxter's mismanagement: "Discipline and attendance is extremely poor in your school . . . . You made no attempt to address this very important issue." 2nd Am. Compl., Ex. 6. Stated that Baxter falsely accused him of using corporal punishment. Id.

* May 27, 1997: Complained about inappropriate interactions between female students and security guards:

Since my arrival at Theodore Roosevelt High School on 30 April 97, I have observed that some of your security personnel kiss, hug and touch many female students improperly. Also, during lunch periods some security personnel accept student lunches from female students. In light of recent media coverage of illicit student/teacher relationships, perhaps you should look closely at what is taking place in your school daily. [signed] Your brother in Christ, Elihu Hassell McMahon p.s. At 1:40 pm three male security personnel were fraternizing with three female students in the library. 2nd Am. Compl., Ex. 8.

* June 5, 1997: Requested First Step Grievance hearing pursuant to teacher's union contract with New York City. 2nd Am. Compl., Ex. 7.

In late June 1997, Baxter gave plaintiff an unsatisfactory evaluation for the school year. Hearing Tr. at 92. According to Baxter, when she attempted to give plaintiff his annual performance evaluation, "[h]e stormed out of the principal's office" without taking the evaluation. Id. at 95. Baxter followed plaintiff and told him to come back into her office. Failure to do so, she said, would be insubordination. Id. at 96.

At the October 30, 2000 hearing, Baxter also testified that she did not believe plaintiff should be punished for insubordination because of the letters he had sent to her, but because of his actions at Roosevelt, which included bringing his cat to school. Id. at 162. "What affected me most was Mr. McMahon's behavior, his bringing his cat to school and his belittling behavior, the way he spoke to students . . . ." Id. at 163. Baxter testified that plaintiff brought his cat into school for several days because it needed medicine. Id. at 173. Baxter also testified that on two separate occasions plaintiff used corporal punishment, specifically, slamming the door on a student coming into class late and pulling a chair out from underneath another student. Id. at 176.

In late June 1997, plaintiff also began complaining to higher authorities about his situation.

* June 26, 1997: Letter to Joseph DeJesus, the superintendent of Bronx high schools, claiming that DeJesus told Baxter that plaintiff used corporal punishment on students and threatening legal action against DeJesus. 2nd Am. Compl., Ex. 9.

* September 4, 1997: Letter to then-Mayor Rudolph Giuliani stating, "I have been under siege by the Board [of Ed] since I wrote a letter to the New York Times." 2nd Am. Compl., Ex. 13. Implied that his 1997 reassignment to Roosevelt was in retaliation for the 1989 letter to the Times and complained about his treatment, especially the ...

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