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

May 29, 2007

DAVID WEINTRAUB PLAINTIFF,
v.
BOARD OF EDUCATION OF THE CITY OF NEW YORK, COMMUNITY SCHOOL DISTRICT NO. 32, LAWRENCE BECKER, JERRY CIOFFI, DAWN FELDER, JAMIN FELDER, DOUGLAS GOODMAN, DAISY O'GORMAN, FELIX VAZQUEZ, FRANK MILLER, AIDA SERRANO, DEFENDANT,



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

MEMORANDUM AND ORDER

In this civil action alleging, inter alia, unconstitutional retaliation against the plaintiff, a former employee of the Board of Education of the City of New York, the City*fn1 has filed a motion seeking reconsideration of this Court's prior order denying summary judgment in favor of the defendants on the plaintiff's claim that the City violated his constitutional rights under color of state law, in violation of 42 U.S.C. § 1983 ("§ 1983"). For the reasons stated below, the City's motion is granted in part and denied in part.

BACKGROUND

On April 28, 2006, this Court issued a Memorandum and Order granting in part and denying in part the City's motion for summary judgment. See Weintraub v. Bd. of Ed. of the City of New York, 423 F. Supp. 2d 38 (E.D.N.Y. 2006) ("Weintraub I").*fn2 In summary of the portion of that opinion relevant to this motion, Mr. Weintraub alleges that the conflicts giving rise to this action began on November 6, 1998, when he was employed as a teacher at Public School 274 in Brooklyn, New York. On that date, Mr. Weintraub sent a student in his class to the office of Douglas Goodman, the assistant principal at PS 274, after the student threw a book at Mr. Weintraub. Mr. Goodman allegedly returned the student to Weintraub's classroom shortly thereafter. On November 9, 1998, the same student again threw a book at Weintraub, and Weintraub once again sent the student to Goodman for discipline. Goodman again instructed the student to return to Weintraub's classroom shortly thereafter. Dissatisfied with Goodman's response, Mr. Weintraub approached Mr. Goodman privately and told him 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." Weintraub I, 423 F. Supp. 2d at 42. Mr. Weintraub also discussed the situation with other teachers at PS 247, and ultimately filed a grievance through his union representative. He alleges that these actions prompted an escalating series of retaliatory steps by Mr. Goodman and other school officials, which began with unfounded negative performance reviews and disciplinary reports that were placed in, and ultimately removed from,*fn3 Mr. Weintraub's employee file, and culminated with false accusations of sexual abuse of a student, an arrest for misdemeanor attempted assault on allegedly false grounds, and Mr. Weintraub's ultimate termination.*fn4

On July 28, 2000, Mr. Weintraub commenced this action, claiming, inter alia, that the retaliatory steps taken against him in retribution for his complaints about Mr. Goodman's handling of the disciplinary matter in November 1998 constitute an illegal infringement upon his First and Fourteenth Amendment rights, in violation of § 1983. In the portion of the prior order relevant to the present motion, the Court held that the plaintiff has stated a claim under § 1983, and that genuine issues of material fact precluded the entry of summary judgment for the City. Central to the Court's holding was its conclusion that Weintraub's speech was protected by the First Amendment under the standards set forth by the Supreme Court in Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, Will Cty., 391 U.S. 563 (1968). In support of its conclusion that Weintraub's allegations satisfy the Pickering test, the Court determined that Weintraub's concerns about the lack of discipline and safety in New York City public schools, while clearly relevant to his personal interests, also pertained to a matter of public concern. On May 14, 2007, the City filed a motion requesting that the Court reconsider its earlier holding in light of the subsequent decision by the United States Supreme Court in Garcetti v. Ceballos, __ U.S. __, 126 S.Ct. 1951 (2006).

DISCUSSION

1. The Garcetti Decision

In support of its renewed motion to dismiss Weintraub's § 1983 claim, the City argues that the Supreme Court's decision in Garcetti, issued approximately one month after Weintraub I, undermines this Court's determination that Weintraub has stated a valid claim of First Amendment retaliation under § 1983. In Garcetti, the respondent, Richard Ceballos, employed at the time as a calendar deputy*fn5 in the Los Angeles County District Attorney's Office, was contacted by a defense attorney who informed Ceballos that the affidavit used by law enforcement to obtain a search warrant that led to the arrest of the defense attorney's client contained "serious misrepresentations." Id. After conducting an independent investigation, Ceballos concluded that the search warrant had been improperly obtained, and submitted a "disposition memorandum" to his supervisors recommending that the prosecution be discontinued for that reason. Id. at 1955-56. His supervisors nevertheless decided to pursue the prosecution, at which point the defense attorney made a motion to traverse the search warrant and called Ceballos to testify at the hearing on that motion about his conclusions regarding the underlying affidavit. Id. at 1956. Ceballos alleged that, after this incident, he suffered several retaliatory employment actions, "includ[ing] reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion." Id. In response to these adverse actions, Ceballos filed an employee grievance, which was denied, and then commenced an action in the United States District Court for the Central District of California, alleging that his supervisors violated his First and Fourteenth amendment rights in retaliation for the statements made in his disposition memo. Id. The district court dismissed Ceballos's action, finding that his memo was not protected speech because it was written pursuant to Ceballos's employment duties. Id. The Ninth Circuit reversed, holding that the memorandum satisfied the criteria set forth in Pickering, because the subject matter of Ceballos's memo "was 'inherently a matter of public concern,'" and because the defendants "'failed even to suggest disruption or inefficiency in the workings of the District Attorney's Office' as a result of the memo." Garcetti, 126 S.Ct. at 1956-1957 (quoting Ceballos v. Garcetti, 361 F.3d 1168, 1173, 1180 (9th Cir. 2004)).

The Supreme Court reversed the Ninth Circuit's opinion, holding that because Ceballos "did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case," but rather "acted as a government employee," the disposition memo was not protected by the First Amendment, and therefore could not form the basis of a First Amendment retaliation claim. Garcetti, 126 S.Ct. at 1960. Recognizing "the premise that while the First Amendment invests public employees with certain rights, it does not empower them to 'constitutionalize the employee grievance'" as underlying its previous opinions on the issue of First Amendment protection for state employee speech, the Court concluded that, although Ceballos's speech was relevant to a matter of public concern, it nevertheless failed to satisfy the first prong of the Pickering test, which, the Court explained, requires that the state employee be acting as a private citizen rather than as a public employee in order for First Amendment protection to attach. Id. at 1959 (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)). In reaching its conclusion "that when 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," the Court read a third element into the traditional Pickering analysis, characterizing the Pickering test as "first requir[ing] determining whether the employee spoke as a citizen on a matter of public concern," and, if so, "whether the relevant government entity had an adequate justification for treating the employee different from any other member of the general public." Garcetti, 126 S.Ct. at 1958 (citing Pickering, 391 U.S. at 568; Connick, 461 U.S. at 147) (emphasis added). The cited passage in Pickering recognizes the "interests of the teacher, as a citizen, in commenting upon matters of public concern" as a justification for upholding a degree of First Amendment protection for workplace speech; prior to Garcetti, this language formed the basis of the principle applied by this Court in Weintraub I that "[w]hen an employee's comments are motivated not by some 'altruistic' desire to improve the public service or protect the public, but rather strictly by personal emotions or interest, the First Amendment does not protect the employee from corresponding administrative action." 423 F. Supp. 2d at 51.*fn6 However, Garcetti works an innovation upon the law by transmuting this principle, formerly a simple corollary to the proposition that a state employee's speech must concern a matter of public interest in order to enjoy First Amendment protection, into a new and independent element of a claim of First Amendment retaliation-- that the public employee's speech was made in the employee's capacity as a private citizen rather than as an employee, a criterion that is never satisfied when the employee speech at issue was made pursuant to the employee's official duties. That is to say, "[w]hen a public employee speaks pursuant to employment responsibilities. . . there is no relevant analogue to speech by citizens who are not government employees." Garcetti, 126 S.Ct. at 1961.

2. Garcetti Requires Reconsideration of Weintraub I

The Garcetti decision "profoundly alters how courts review First Amendment retaliation claims," and compels the Court to reconsider its earlier ruling that the speech underlying Weintraub's First Amendment retaliation claim is constitutionally protected. Casey v. West Las Vegas Indep. Sch. Dist., 473 F.3d 1323 (10th Cir. 2007). In Weintraub I, the Court recognized three categories of protected speech for which Weintraub could plausibly claim retaliation: (1) Weintraub's private conversation with Goodman in which he expressed his dissatisfaction with Goodman's handling of the book-throwing incidents and threatened to file a grievance if the situation was not rectified; (2) Weintraub's conversations with other teachers about the incidents and Goodman's failure to impose adequate discipline; and (3) the formal grievance itself. See Weintraub I, 423 F. Supp. 2d at 42. Under the Supreme Court's First Amendment doctrine as revised by Garcetti, the Court is compelled to conclude that the first and third of these categories are no longer viable bases for a First Amendment retaliation claim.

The City argues that Weintraub's claim is barred by Garcetti because all of the statements underlying that claim were made in his capacity as an employee, rather than as a citizen. In support of this view, the City observes that "[o]bviously, it is within the job duties of any teacher to maintain discipline within his classroom, and Weintraub's referral of the student to Goodman. . . falls within these duties." Def. Br. at 4. The City also cites a portion of the "Agreement between the Board of Education of the City School District of the City of New York and United Federation of Teachers," which sets out the grievance and appeal procedure for disputes between teachers and school administration regarding student disciplinary matters. Id. Ex. C. In response, Weintraub points out that the City's argument incorrectly identifies the statements for which Weintraub alleges he suffered unconstitutional retaliation-- Weintraub does not argue that his act of referring the student to Goodman is what prompted the escalating series of allegedly retaliatory actions; rather, he argues that his subsequent acts of complaining to Goodman about Goodman's handling of the situation, speaking to other teachers, and filing an official grievance prompted the unlawful retaliation. Weintraub's argument that the city misrepresents the actual basis of his First Amendment retaliation claim is correct, but does not alter the outcome of the City's motion in Weintraub's favor.

As noted above, Garcetti held that a public employee's speech is not protected by the First Amendment when speaking as an employee rather than as a citizen, and found the dispositive distinction between the two roles to be whether the speech was made pursuant to the employee's official duties or was not required by those duties.*fn7

This interpretation is consistent with that of other federal courts applying Garcetti in similar circumstances, which have interpreted its language to mean that, if a public employee is compelled by his official duties to make the statement in question, the Garcetti rule excludes that statement from First Amendment protection, and the employer may retaliate against the employee on the basis of that speech without violating the employee's First Amendment rights. The Tenth Circuit's decision in Casey offers a concise illustration of the distinction between speech as an employee and speech as a citizen. In that case, the plaintiff was appointed Superintendent of the West Las Vegas Independent School District (the "District") in New Mexico by the West Las Vegas School Board (the "Board") in January 2002. In this capacity, she also served as the Chief Executive Officer ("CEO") of the District's Head Start program, "a federally funded initiative aimed at providing educational opportunities, meals, and health care services to low-income children between three and five years of age." Casey, 473 F.3d at 1325. Approximately one year later, Ms. Casey became aware that "as many as 50% of the families enrolled in the District's Head Start program appeared to have incomes that were too high for them to qualify for participation" in that program. Id. at 1326. She informed the president and other members of the Board about the possible fraud on several occasions between January and April 2003, but "was variously told not to worry about it, to leave it alone, or not to go there." Id. Unsatisfied with these responses, Ms. Casey instructed her assistant to notify the regional Head Start office in Dallas of her suspicions. This notification led to an investigation by the United States Department of Health and Human Services, which concluded that "certain enrollments in the District's Head Start program were indeed improper and ordered the repayment of more than half a million dollars in federal aid." Id. During approximately the same time period, Ms. Casey became concerned that the Board "was violating the New Mexico Open Meetings Act by making personnel and other decisions in executive session without proper notice and meeting agendas." Id. Ms. Casey informed the Board of her concerns, and when it took no action in response, she filed a written complaint with the New Mexico Attorney General, who commenced an investigation that ultimately concluded that the Board's practices were in violation of the Open Meetings Act, and ordered corrective action. Finally, also during approximately the same time period, Ms. Casey "brought to the Board's attention a number of other issues. . . that, she believed, violated federal or state laws," including deficiencies in the Board's hiring process and its handling of a situation in which a principal and teacher were having an affair. Id. On May 8, 2003, the Board voted not ...


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