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Todd Flyr v. City University of New York

April 25, 2011


The opinion of the court was delivered by: John G. Koeltl, District Judge:


The plaintiff, Todd Flyr, sues his former employer under 42 U.S.C. § 1983 for allegedly terminating his employment in retaliation for his exercise of his First Amendment rights of free speech and free association. The defendants, City University of New York ("CUNY"), Borough of Manhattan Community College ("BMCC"), and Richard Chorley, a professor at BMCC, move to dismiss the Amended Complaint for failure to state a claim, arguing that the plaintiff's activities were not protected by the First Amendment.


In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.; see also SEC v. Rorech, 673 F. Supp. 2d 217, 221 (S.D.N.Y. 2009).

In deciding the motion, the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that either are in the plaintiffs' possession or were known to the plaintiffs when they brought suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).


The following facts are assumed to be true for purposes of this Order.

In 2003, the plaintiff applied for and received a "Professorial Track" position in the Computer Information Systems Department ("CIS") at BMCC, which is a part of CUNY. (Am. Compl. ¶¶ 5, 7, 11-15.) The plaintiff's contract was annually renewable and had a five-year tenure clock. (Id. ¶ 16.)

CIS contained two "primary factions, internally allied and hostile" to each other, one led by department chair Alice Cohen, who had recommended the plaintiff's hire, and one led by defendant Chorley. (Id. ¶¶ 14, 17.) According to the plaintiff, Chorley was unhappy with him from the time of his hiring, giving him a poor performance review in contrast to positive reviews that the plaintiff received from Cohen. (Id. ¶¶ 18, 23-25.)

The plaintiff describes two sets of events that, he claims, led Chorley to retaliate further against the plaintiff, ultimately leading to the non-renewal of his contract after the 2006--2007 academic year. (Id. ¶ 60.)

First, in or about May 2005, Cohen stepped down from the CIS chairmanship, leading to a contentious election campaign between Chorley and another professor, Kok, for the open seat, a race covered by "numerous blogs and message boards." (Id. ¶¶ 31-33.) As the plaintiff conceded at oral argument, the plaintiff had a vote in this election as a professor in the CIS department. The plaintiff "actively participated in supporting Kok," sending an email on Kok's behalf and "lobb[ying] aggressively for Kok's election with personnel in the CIS department." (Id. ¶ 34.) Chorley ultimately won the election by one vote. (Id. ¶ 36.) From this point forward, the plaintiff alleges, Chorley "took it upon himself to retaliate against" the plaintiff for his role in supporting Kok, including fabricating student complaints and changing the plaintiff's work assignments. (Id. ¶ 36-38.) Chorley allegedly admitted to the plaintiff that he was doing so in retaliation for the plaintiff's support for Kok. (Id. ¶ 39.)

Second, the plaintiff "voluntarily involved himself with numerous grant writing projects, all of which were designed primarily to benefit the students at BMCC, as well as the community at large," "[i]n addition to his required teaching responsibilities." (Id. ¶ 20.) The plaintiff was not "required" to do so "by the leaders of his department" and "had no expectation that he would be one of the BMCC professors assigned to administer a grant once it was approved." (Id. ¶¶ 21-22.)

In or about January 2006, the plaintiff was working on a grant writing project that "if approved, would have afforded community members enrolled at BMCC the opportunity to learn how to protect themselves from cyber attack, identity theft, and monetary theft that occurs on the internet." (Id. ¶¶ 45-46.) Two CIS professors who had been collaborating with the plaintiff on a grant-writing project were "implicated in a plagiarism scandal." (Id. ¶¶ 44-45.) As part of an "extended dispute . . . over email" about the two professors' involvement with the grant, the plaintiff "actively spoke out" against the involvement of these professors in the grant, "due to his concern over jeopardizing the grant and its public safety opportunities." (Id. ¶ 48.) Both of these professors had supported Chorley in the election, and Chorley "exacerbated his . . . retaliation" against the plaintiff as a result of the plaintiff's opposition to them. (Id. ¶¶ 44, 49.)

Chorley's antagonistic actions continued, including various complaints and negative evaluations, ultimately culminating in the orchestration of the plaintiff's non-reappointment at BMCC. (Id. ΒΆΒΆ 50-59.) In a letter dated December 6, 2006, the plaintiff was informed that his ...

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