The opinion of the court was delivered by: Conner, Sr. D.J.
On March 8, 2005, plaintiff brought this action pursuant to 42 U.S.C. § 1983 against Sheila Warren ("Warren") and the County of Orange (the "County") alleging that defendants terminated her contract in retaliation for her engaging in protected speech in violation of the First Amendment to the United States Constitution and the Due Process Clause of the Fourteenth Amendment. In an Opinion and Order, dated December 9, 2005 (the "12/9/05 Opinion"), this Court dismissed plaintiff's Complaint in its entirety pursuant to FED. R. CIV. P. 12(b)(6). Plaintiff appealed our decision to the United States Court of Appeals for the Second Circuit, which affirmed our dismissal of plaintiff's due process claims but held that plaintiff "might be able to amend her complaint" to state a viable claim for First Amendment retaliation. See McGuire v. Warren ("McGuire II"), 207 F. App'x 34, 36 (2d Cir. 2006). The court therefore "remand[ed] the matter . . . solely for the purpose of permitting [plaintiff] to make, within 45 days of the issuance of the mandate [t]herein, a motion to serve and file an amended complaint . . . ." Id. at 37. Plaintiff now moves, albeit tardily, for leave to file her proposed Amended Complaint, which alleges one cause of action against Warren for First Amendment retaliation. For the reasons that follow, plaintiff's motion is granted.
The relevant facts are set forth in our 12/9/05 Opinion, the familiarity of which is presumed.*fn1 In brief, the Complaint alleged that plaintiff, a certified special educator, entered into annual contracts with the County to provide early intervention and pre-school services for autistic children, including applied behavior analysis ("ABA") instruction. (See Complt. ¶¶ 5-8.) In July 2004, the County renewed plaintiff's contract under which she was paid on an hourly basis. (See id. ¶ 25.) Warren, as Director of Intervention Services for the County's Department of Health, was responsible for overseeing plaintiff's contract.*fn2 (See id. ¶¶ 12-13.)
At the request of the parents of the children to whom she provided services, plaintiff would often issue progress reports to certain review committees*fn3 that would recommend to the County the appropriate services for the child. (See id. ¶ 9.) Plaintiff alleges that Warren often opposed parents' requests for home-based ABA services and, on several occasions, advocated fewer hours of home- based ABA than requested by the parents. (See id. ¶¶ 15, 19.) According to the Complaint, Warren strongly urged the provision of services in center-based settings rather than in the home. (See id. ¶¶ 18, 19.) Plaintiff alleged that Warren believed that plaintiff supported the parent's requests, and criticized her for promoting such services. (Id. ¶¶ 16, 20.)
In August 2004, a parent requested that plaintiff send a letter to CPSE "expressing support for the continuation of services at an integrated day care center which the child was attending." (See id. ¶ 26.) Plaintiff sent the letter, and Warren shortly thereafter terminated her contract with the County. (See id. ¶¶ 27-31, 34.) The Complaint alleges that "[d]efendants terminated plaintiff's contract because she engaged in protected speech in support of educational programs she believed necessary for those children she was assigned to assist." (See id. ¶ 36.) This Court dismissed the Complaint because the August 2004 letter did not constitute protected speech under the First Amendment, as it was written pursuant to plaintiff's official duties and, dealing only with a single child's specific needs, it did not address an issue of public concern. See McGuire I, 404 F. Supp. 2d at 536-37.
The Second Circuit agreed, but noted that "[t]he August 2004 letter may not be the only speech relevant to McGuire's claim . . . ." McGuire II, 207 F. App'x at 36. It explained that "[t]he complaint also discusse[d] the parties' conflicting views on the proper method of providing certain kinds of educational services to children." Id. The court concluded that "it is possible to read the allegations in the complaint to allege that the adverse employment actions allegedly taken by the defendants against McGuire were in retaliation for statements she made more broadly about the provision of services to special needs children as a group, which might well be a matter of public interest." Id. The court emphasized, however, that plaintiff did not allege that she was speaking as a concerned citizen, and stated:
Her allegations assert, instead, that she was acting pursuant to her responsibilities as a contractor at the time of the particular speech she identifies in the complaint. In Garcetti v. Ceballos, - U.S. - , 126 S.Ct. 1951, 164 L.Ed. 2d 689 (2006), which was decided after the complaint was filed and the motion for judgment on the pleadings was granted by the district court, the Supreme Court decided: "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1959. For that reason alone, the district court's judgment on the pleadings was, on the basis of Ceballos, proper.
McGuire might be able to amend her complaint in light of Ceballos to include specific allegations as to specific statements she may have made about a matter of public concern as a private citizen that were a "motivating factor" for the alleged adverse employment action against her; indeed, McGuire's counsel asserted at oral argument that she could add such allegations if given the opportunity. We therefore vacate the judgment of the district court and remand the matter to the district court solely for the purpose of permitting McGuire to make, within 45 days of the issuance of the mandate herein, a motion to serve and file an amended complaint pursuant to Federal Rule of Civil Procedure 45 [sic] . . . .
Plaintiff now moves this Court for leave to file an amended complaint alleging specific incidents where plaintiff expressed her opposition to the County's provision of services to autistic children. Specifically, in plaintiff's proposed Amended Complaint, she alleges that, on July 30, 2004, she attended a meeting hosted by Warren at which she "voiced her general concerns that the hours of service provided by Warren's office to autistic children did not follow the guidelines provided by New York State and were truly inadequate for these children." (See Am. Complt. ¶ 8.) Plaintiff also alleges that, at the meeting, she indicated that "many autistic children learn best when provided a mainstream pre-school classroom and ABA services both in those rooms and at home, contrary to the practices defendant favored." (See id. ¶ 9.) According to plaintiff, Warren responded, "'I said it once and I'll say it again. Children belong in center-based programs,'" and advised those attending the meeting that "they should '[r]emember who [they] work for.'" (See id. ¶¶ 10-11.)
In addition, plaintiff alleges that, on May 7, 2003, plaintiff and other staff associated with Bright Beginnings met with Warren at the Clarion Hotel in Newburgh, New York. (See id. ¶ 12.) At the meeting, Warren explained that she believed that the "Family Training Model," which was designed to assist family members in interacting with their autistic child, was a more effective approach than ABA instruction, and that children who needed services prior to attending school belonged in "center-based programs." (See id. ¶¶ 13-15.) In response, plaintiff suggested that implementation of the "Family Training Model" would not satisfy the state guidelines, which require twenty to forty hours of ABA instruction for autistic children. (See id. ¶ 17.) She also indicated that the "policies adopted by the [C]county did not promote the education of autistic children in the least restrictive environment and that changes in the scheduling of pre-school C[P]SE meetings would disallow parental and Early Intervention instructor participation, contrary to federal and state regulations." (See id. ¶ 18.) She alleges that her comments "concerned matters of public importance and were not case-specific comments made by an employee to her employer." (See id. ¶ 20.) Plaintiff claims that, in retaliation for these statements, Warren terminated plaintiff's contract with the County. (See id. ¶ 22.)
Warren opposes plaintiff's motion for leave to file the proposed Amended Complaint on two grounds. First, she argues that plaintiff's counsel did not file the motion for leave until March 5, 2007, fourteen days after the filing deadline imposed by the Second Circuit panel, and because we are bound by its mandate, we must deny her motion as untimely. Second, Warren contends that plaintiff's proposed Amended Complaint ...