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Novak v. Board of Education of the Fayetteville-Manlius Central School Dist.

February 29, 2008


The opinion of the court was delivered by: Scullin, Senior Judge



Plaintiff commenced this action on February 14, 2005, asserting eleven claims against Defendants for allegedly taking disciplinary action against him based on his involvement in union-organizing activities. Plaintiff subsequently withdrew six of his causes of action. Thereafter, the Court granted summary judgment to Defendants on all remaining claims with the exception of Plaintiff's First Amendment retaliation claim and a related New York constitutional free speech retaliation claim, finding that genuine issues of material fact existed. See Memorandum-Decision and Order, dated March 14, 2007, at 18.

The Court conducted a six-day bench trial on these remaining claims beginning on September 24, 2007, and concluding on October 1, 2007. Based on the credible evidence received at trial, the following constitutes the Court's Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.


Plaintiff has been employed as a bus driver for the Fayetteville-Manlius Central School District ("District") since 1994.*fn1 See Trial Transcript ("Tr.") volume 2 at 2. As stated, Plaintiff contends that Defendants retaliated against him for exercising his right to free speech under the First Amendment to the United States Constitution and Article I, § 8 of the New York Constitution.

In order to succeed on a First Amendment retaliation cause of action, a plaintiff must demonstrate by a preponderance of the evidence that (1) his speech was constitutionally protected, (2) he suffered an adverse employment action, and (3) a causal connection exists between his speech and the adverse employment determination against him. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-88 (1977); Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (citation omitted). The defendant may then defeat the plaintiff's case by showing that it would have taken the same action regardless of the protected conduct. See Mt. Healthy, 429 U.S. at 287. However, if the defendant cannot show by a preponderance of the evidence that it would have taken such an action in the absence of the protected speech, the court must balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).*fn2

The "speech" that Plaintiff maintains was constitutionally protected involves two different incidents of expression.*fn3 The first concerned his appearance as a witness at a New York State Public Employment Relations Board ("PERB") hearing, and the second concerned a story he told to co-workers that he claims related to union-organization efforts, hereinafter referred to as the "sheep story." The Court will address each incident separately.

A. Plaintiff's PERB-Hearing Testimony

Some time in 1999 to 2000, Plaintiff became involved with a group of fellow employees, including his friend Richard Griffith, who sought to replace the existing bargaining unit, the Fayetteville-Manlius Transportation Association ("Association"), with a larger and more independent union. See Tr. volume 2at 10-16. The existing Association was not connected to any outside organization. Eventually, two factions arose within Defendant District's transportation department that were bitterly divided over the issue of whether the transportation employees should pursue outside union representation. See Tr. volume 1 at 96.

On May 6, 2003, at 10:00 a.m., Plaintiff testified on behalf of Mr. Griffith at a hearing before the PERB concerning an "improper practice" charge Mr. Griffith had brought against Defendant District. See Tr. volume 2 at 17-18. In essence, Plaintiff testified at the PERB hearing that he had observed anti-union literature posted in the transportation department office. See id. at 19-20. Plaintiff claims that, as a result of this testimony, Defendants took a series of adverse employment actions against him. See id. at 5-6.

Adverse employment actions include, among other things, suspension from work and reprimand. See Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (quoting [Morris, 196 F.3d at 110]). A continuing pattern of harassment may also constitute an adverse employment action if it would deter a person of average firmness from exercising his right to speak. See id. A plaintiff may demonstrate causation only if "the protected speech was a substantial motivating factor in the adverse employment action . . . ." Morris, 196 F.3d at 110 (emphasis added).

The first alleged adverse employment action occurred on May 7, 2003, when Defendants granted Plaintiff a paid personal day instead of a paid sick day for his absence the previous day. On the morning of May 6, 2003, the date of the PERB hearing, Plaintiff called the transportation department office and reported to a dispatcher that he would not be coming to work that day. See Tr. volume 2at 36. The next day, on May 7, 2003, Plaintiff spoke with Judith Clarke, director of the transportation department, about his absence. See Tr. volume 4 at 261. He asked Ms. Clarke to mark him down for a sick day; however, Ms. Clarke refused and issued him a paid personal day. See id. at 255. She stated that the reason for her decision was that it was apparent to her that Plaintiff had taken the day off for the purpose of testifying at the hearing because she had seen him at the May 6, 2003 PERB hearing and did not think he looked ill. See id. at 254.

At trial, Plaintiff maintained that he had taken pain medication for a back condition that prevented him from operating a school bus; however, he did not mention this fact to the bus dispatcher on the morning of May 6, 2003. See Tr. volume 2 at 120-21. Moreover, he saw Ms. Clarke at the PERB hearing on the day that he was absent from work but did not tell her until the next day that he could not perform his duties because he had taken pain medication. To Ms. Clarke, Plaintiff appeared in sound health and was able to testify at the hearing without issue. Assuming for sake of argument that Plaintiff's testimony at the PERB hearing was protected and that the refusal to grant him a ...

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