The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Donnamarie Grennan ("Grennan" or "Plaintiff") commenced this action on May 21, 2004, asserting a claim, pursuant to 42 U.S.C. § 1983, for alleged violations of her First and Fourteenth Amendment rights, and asserting state law claims for defamation, breach of contract and negligence. Presently before the Court is the motion of Defendants Board of Cooperative Educational Services of Nassau County and BOCES of Nassau County School Board (collectively "BOCES"), Kathleen Zino, Russell Riggio, Charles Kulis, Marguerite Costello, James Cappadona, John Zoulis, Mehri Fryzel, John Gangemi and Jerry Shiveley for summary judgment.*fn1 For the reasons set forth below, the motion is GRANTED.
The following facts are taken from the parties' submissions and are undisputed, unless noted otherwise.*fn2
BOCES serves the more-than fifty school districts of Nassau County by providing shared services, including special education, alternative schools, technology training and career training.
The speech services provided to the students at BOCES are contracted for by each student's individual school district and provided pursuant to each student's Individualized Education Plan.*fn3
In some cases, related services such as speech are reimbursable to the school district by Medicaid.
During the 2002--03 school year, Defendant Kathleen Zino ("Zino") was a leave replacement substitute teacher at the Center for Community Adjustment, a BOCES school. Defendant Charles Kulis ("Kulis") is the Principal at the Center for Community Adjustment, where Plaintiff Grennan was employed as a speech teacher during the 2002-03 school year. Defendant James Cappadona ("Cappadona") is the supervisor of the Speech Department at Nassau BOCES. Defendant John Zoulis ("Zoulis") is the Principal at the Nassau BOCES's Career Development Center. Defendant Marguerite Costello ("Costello") is the Director of Human Resources for Nassau BOCES. Defendant Russell Riggio ("Riggio") is the Executive Director for Special Education for Nassau BOCES. Defendant Mehri Fryzel ("Fryzel") is the Assistant Director for Special Education of Nassau BOCES. Defendant Dr. Jerry Shiveley ("Shiveley") was, during the relevant period, the District Superintendent at Nassau BOCES. Defendant John Gangemi ("Gangemi") is Deputy Superintendent for Nassau BOCES.
Grennan is a tenured teacher of children with speech and hearing disabilities employed by BOCES. She is employed pursuant to the collective bargaining agreement (hereinafter "CBA") between BOCES and Nassau BOCES Central Council of Teachers. From the beginning of the 1997-98 school year until July 3, 2003, when she was placed on administrative leave, Grennan worked at the Center for Community Adjustment ("CCA"), a BOCES school.
The events at issue began when, sometime in late May or early June 2003, Zino, who as stated above was a substitute teacher, reported to Kulis, the principal at CCA, that she believed Grennan may not have provided speech services to one or more of her students. According to Grennan, Zino's actions were an attempt to discredit Grennan and get her job. Defendants deny any such motivation.
On May 27, 2003, prior to any action being taken by the Defendants against Grennan, a memorandum was sent by Kulis to all staff members, including Plaintiff, regarding procedures to be followed in recording speech services provided, should any student refuse such services. The Defendants contend that the memo was a direct result of prior discussions with Grennan which had addressed the pending allegations of misconduct. Grennan, however, disputes that she was made aware of the allegations against her.
Shortly thereafter, Kulis and Cappadona, pursuant to the instructions of Riggio, began an investigation into allegations that Grennan had not provided speech services to some students. As part of that investigation, Plaintiff's records were collected and students and teachers were interviewed. Among other things, BOCES obtained statements from five students who were part of Grennan's caseload for the 2002-03 school year. The statements are all dated June 17, 2003 and read as follows:
Student MA: "I first saw Miss Grennan in March on Mondays and Fridays for Speech."
Student SB: "I didn't go to speech at all this year. I don't know who my speech teacher is."
Student JM: "I only saw my Speech teacher two times this year, yesterday and last week. She tested me around the beginning of school."
Student JF: "I did not go to Speech at all this year. I do not have a Speech teacher."
Student AQ: "Miss Grennan gave me a test in the fall, I think. She told me I passed it. She said she would check over me a couple of times, but she didn't cause she had other kids. She took me for Speech today and that was the first time."
On June 18, 2003, Grennan received a memorandum from Kulis requesting that she appear at a hearing on June 20, 2003, to discuss the allegations of "unprofessional conduct." June 20, 2003, was the last day of school in the 2002-03 school year. Grennan appeared at the hearing, with a union representative, where she was questioned with respect to the allegations against her. At the conclusion of the hearing, the Plaintiff was given her performance evaluation for the year, receiving a rating of "unsatisfactory." Grennan contends that she had no notice or knowledge of the allegations against her until the start of the hearing and, as a result, the hearing failed to comply with Article III, Section 5 of the CBA. The Defendants, however, point to the May 27 memo and Plaintiff's June 10, 2003 production of her log notes and attendance documents as confirmation of prior conversations with Grennan regarding her conduct. Grennan also contends that the hearing was scheduled at the end of the day on the last day of school in order to deprive her of the ability to call teachers and students as witnesses on her behalf.
On July 2, 2003, BOCES sent a letter, signed by Riggio, to the Nassau County District Attorney's office. The letter states in part:
Late in this school year, our Supervisor of Speech Services and the Principal for the Center for Community Adjustment were approached by a classroom/speech teacher who expressed her concern regarding the services students in her class were not receiving. A subsequent investigation, consistent with our teachers' contract, identified the fact that one of the program's speech teachers, Donna Grennan, had not been providing services to several students in her caseload. Seven of these high school students had received little or no speech service, as required by the students' IEP. Not being aware of this earlier in the school year, BOCES continued to bill local school district for these services. As best we can ascertain at this time, those bills have totaled $12,306.
Our investigation of this issue included conversations with students and staff, other than Ms. Grennan, all of whom concur that Ms. Grennan has not been providing services, as required by IEP mandate and state and federal law. Despite the overwhelming evidence, Ms. Grennan has denied all of our accusations. As required by State Education law, BOCES is taking the necessary steps to suspend her, pending the implementation of a 3020A proceeding, leading to a penalty up to and possibly including termination.
It should be noted that five of the seven students' districts have, as best we know, applied for New York State Medicaid reimbursement . . . . Since it is the responsibility of each local school district to bill Medicaid, it is not clear to BOCES as to the amount involved. However, knowing the monthly rate for service and the daily rate for transportation, we feel that the total amount involved could be in excess of $30,000.
As a result of the above, the Nassau County Board of Cooperative Services is quite concerned that our agency, the school districts we represent and the New York State/federal government Medicaid program has been defrauded as a result of Ms. Grennan's behavior. We are asking that this situation be thoroughly investigated by the Nassau County District Attorney's Office to determine Ms. Grennan's culpability and responsibility in this regard.
Grennan contends that there was no real investigation prior to the filing of the complaint with the Nassau County District Attorney and that if a proper investigation had been conducted she would have been vindicated. She also asserts that certain information was maliciously withheld from the District Attorney. That information included that two of the seven students were not Medicaid eligible, that the transportation costs of five of the seven students were not Medicaid eligible, and that transportation was provided so the student could attend school, whether or not speech was provided.
On the same day that the letter was sent to the Nassau County District Attorney, i.e., July 2, 2003, Grennan was advised by letter from Costello that "[e]ffectively immediately you have been placed on administrative leave at home. You are not to be on Nassau BOCES property without . . . prior knowledge and consent." While on administrative reassignment Grennan continues to receive her regular salary and benefits, although she disputes that she is receiving the "full" benefits that were previously afforded to her.
In August of 2003, Riggio spoke at a meeting of BOCES principals and assistant principals with respect to accurate reporting of services performed by teachers. Grennan contends that Riggio discussed the allegations against her at the meeting and that Defendants otherwise disclosed the allegations to her co-workers. The Defendants state that no such disclosures were made.
On September 2, 2003, Grennan was administratively reassigned to the Career Development Center (hereinafter "CDC"). As a result, Grennan filed a grievance with her union, alleging that the transfer was improper according to the procedures established by the CBA. Grennan further alleges that she was instructed by Riggio and Zoulis, the principal of the CDC, not to speak, or have any contact with staff members at her new location. The Defendants contend that Grennan was merely advised not to talk about why she was relocated to the CDC.
Following the filing of the grievance, Grennan's discontent with her placement continued. Her office was in a wing of the CDC near the auto shop, which she describes as remote and constantly invaded by gas fumes, insects, mildew and other pests and contaminants. Grennan subsequently made complaints to the New York State Department of Labor regarding the perceived condition of her office as well as the lack of a lock on the door of the bathroom closest to her office. The lock on the door was fixed and the investigation of the premises by the Department of Labor did not find any violations.
On October 3, 2003, Grennan came across what she perceived as a threatening message left in her school mailbox. The "message" was a page from a trivia calendar for Monday, September 22, 2003, and reads: "The mongoose was brought to Hawaii to kill the rats that plagued the sugar fields. Why did the plan fail? The mongoose hunts during the day -- and rats are nocturnal." According to Defendants, the calendar page was either left inadvertently in Grennan's mailbox by another teacher or removed from another teacher's mailbox by Grennan.
According to Plaintiff on October 17, 2003 she complained to the Board of BOCES that, among other things, Riggio had told her to enter false information on the New York State Basic Educational Data System ("BEDS") form.*fn4 She also claims to have informed the District Attorney at a meeting held on October 30, 2003 that Riggio had instructed her on or about October 3, 2003 "to falsify [BEDS] forms using her caseload registration from the previous school term 2002-2003."
On November 26, 2003, Plaintiff served BOCES with a notice of claim stating that "[f]rom about June 20, 2003, July 2, 2003, September 2, 2003 and continuing . . . claimant was caused to be defamed, discriminated against, subjected to violations of her civil rights, coerced, intimidated, not taken seriously and subjected to wrongful actions . . . ."
On January 12, 2004, Grennan was reassigned from the CDC to the Hawthorn Center, in Massapequa, New York, an act which Grennan contends was "to harass, annoy and intimidate the Plaintiff for speaking out and questioning Defendant [sic] wrongful treatment of Plaintiff." The Defendants deny such a retaliatory motive. The Defendants instead contend that the move was because of the start of renovations at the CDC and that the Hawthorn Center, which is located in the town where the Plaintiff resides, is closer to her home, and is considered prime office space. Grennan claims that, upon being transferred to Hawthorne, she was assigned the "Moll" (pronounced "mole") room located in an isolated part of the building. The Moll room shares a wall with the men's bathroom and she contends that she has to listen to men urinating and performing other bodily functions. Defendants claim that they have investigated Grennan's complaints and that no such noises can be heard in her office and, in any event, they have closed the bathroom. As for the "Moll" room, Defendants explain that there was an administrator in the Massapequa District named Mary Mollinsky and that apparently some of the lettering on the door sign has fallen off over the years.
By letter dated January 27, 2004, the District Attorney's office advised Riggio that they concluded their investigation and were closing this file. "It is the determination of this bureau that there is not sufficient evidence to warrant a criminal prosecution."
On May 13, 2004, the BOCES Board of Education voted charges against Grennan pursuant to Education Law § 3020-a.*fn5 That proceeding was still pending at the time the instant motion was submitted.
This action was commenced on May 24, 2004.
Whether or not Grennan "falsified documents" is hotly contested on this motion. It is neither appropriate nor necessary to resolve that issue on the present motion.
I. Standard for Summary Judgment
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)). "Rule 56(e)'s requirement the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial."
Patterson, 375 F.3d at 219 (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc. 183 F.3d 155, 160 (2d Cir. 1999)).
When determining whether a genuinely disputed factual issue exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or "the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55.
A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide the district court in its determination of a summary judgment motion. See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. See id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). That being said, it is well-established that a non-movant cannot defeat summary judgment with nothing more than "unsupported assertions," Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), or the allegations in its pleadings. See Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996); see also Fed. R. Civ. P. 56(e). More particularly, although "summary judgment should be used sparingly" in cases where the material fact at issue is the defendant's intent or motivation, the plaintiff must nevertheless offer some "concrete evidence" in his favor, and is "not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1998). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
II. The Section 1983 Claims
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
42 U.S.C. § 1983. To prevail on a § 1983, claim a plaintiff must establish that a person acting under color of state law deprived her of a federal right. See 42 U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 640 (1980); Thomas v. Roac, 165 F.3d 137, 142 (2d Cir. 1999). Plaintiff asserts that Defendants violated her rights to free speech, due process of law, and equal protection of the law. Defendants have moved for summary ...