The opinion of the court was delivered by: Hurley, Senior District Judge:
Plaintiff brings this action against her former employer, the Brentwood Union Free School District (the "District"), the Brentwood Board of Education (the "Board") (collectively, the "Brentwood defendants"), and three Board members.*fn1 The Court previously dismissed several claims in this action, but allowed plaintiff to proceed on (1) her intimate association claim under the First Amendment against the District, the Board, Gale Kirkham ("Kirkham"), Tomas Del Rio ("Del Rio"), and Joseph Fritz ("Fritz")*fn2 only, (2) her claim under the Equal Protection Clause of the Fourteenth Amendment against Kirkham only, and (3) her state law claims.*fn3 Talley v. Brentwood Union Free School District, 2009 U.S. Dist. LEXIS 53537 (E.D.N.Y. June 24, 2009). The Brentwood defendants and the individual defendants now move under two separate motions for summary judgment as to all of the remaining claims. For the reasons that follow, defendants' motions are granted in part and denied in part.
This action arises from the decision of three members of the Brentwood Board of Education to abstain from a vote on whether to hire plaintiff for a teaching position within the Brentwood School District. Plaintiff alleges that these three individuals, namely Kirkham, Del Rio, and Fritz, abstained from the vote, thereby denying plaintiff the teaching position, because they harbored enmity towards plaintiff's father, George M. Talley, a fellow member of the Board and, at the time of the vote the President of the Board, in violation of plaintiff's First Amendment right to intimate association. Plaintiff further claims that Kirkham's decision to abstain was also motivated by the fact that plaintiff is white, in violation of the Equal Protection Clause of the Fourteenth Amendment.
I.Plaintiff's Employment with the District Before and During the 2006/2007 School Year
The relevant events begin with plaintiff's employment with the District as a teacher's assistant and sign language interpreter. (Defendants' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 ("Defs.' 56.1") ¶ 29.)*fn4 It is not clear from the record how far back she held these positions, but it is not disputed that these jobs are distinguishable from a classroom teacher position, and that they did not require a teaching certificate. (See Defs.' 56.1 ¶¶ 29-32.)
In June of 2006, the District offered plaintiff a contract for a "leave replacement teaching position" for the 2006/2007 school year, with the contract period ending on June 30, 2007. (Defs.' 56.1 ¶ 30.) The letter extending the offer stated that it was conditioned on proof that plaintiff held a valid New York State Teaching Certificate. (Id. ¶ 32.) The letter contained two boxes for plaintiff to check: one affirming that she held the requisite certificate, and one declining to accept the offer. (Id.¶ 35.) Plaintiff signed the letter without checking either box and returned it to the District. (Id. ¶ 36.) Roughly a week after receiving the job offer, plaintiff completed a formal application for the position of "leave replacement special education teacher," which asks whether the applicant has a valid New York State Teacher's Certificate. (Id. ¶ 40-41.)
For those who do, the form offers two boxes of which only one can be selected: "Professional" and "Initial." (Id. ¶ 42.) Plaintiff selected "Initial."*fn5 (Id. ¶ 43.)
During the time plaintiff signed and returned the offer letter, and completed the application form, she did not possess a valid teacher's certificate. (Id. ¶¶ 37, 44; see Pl.'s Teacher Certificate, Defs.' Ex. AA ("Effective Date: 09/01/2007").) Plaintiff disputes this fact by suggesting that she held a "'pending' certification and was permitted to teach pending obtainment of the complete certification." (Plaintiff's Rule 56.1 Counterstatement of Material Facts ("Pl.'s 56.1") ¶ 44; see also id. ¶ 37.) In her deposition, she stated that she was entitled "according to state law" to teach while her certificates were "pending." (Pl.'s Dep. 28.) Defendants, however, proffer evidence that the New York State Education Department, the state agency responsible for issuing teaching certificates, has never had a classification for a "pending certificate." (Defs.' 56.1 ¶ 172 (citing Marriot Aff. ¶¶ 10-11, Defs.' Ex. L).) At the time plaintiff submitted these documents to the District, she had only passed two of the three tests required to obtain her teacher's certificate. (See Defs.' 56.1 ¶ 70.)
Before plaintiff, or any other teacher, can begin service as a non-substitute classroom teacher in the District, the Superintendent must recommend a particular candidate to the Board for its approval. At the August 21, 2006 Board meeting, Interim Superintendent Michael Cohen ("Cohen") recommended that plaintiff be approved by the Board for the temporary replacement teaching position mentioned above, with service from September 1, 2006 to June 30, 2007. (Id. ¶ 59.) The accompanying "Human Resources Report" to the Board indicated that plaintiff was certified to teach.*fn6 (Id. ¶ 58.) Plaintiff's employment was approved unanimously by the Board at that meeting. (Id. ¶ 61.)
At some point after he began his tenure as the Interim Superintendent in June 2006, Cohen discovered that certain District employees had been hired and/or transferred without the knowledge of the District's Director of Human Resources. (Id. ¶ 78.)*fn7 As a result, Cohen ordered an audit to determine the certification status of every District employee. (Id. ¶ 81.) In or about May 2007, Cohen became aware that plaintiff was among the teachers who were not properly certified. (Id. ¶¶ 86-87.) Cohen advised the Board of this fact during a closed executive session, and informed them that because plaintiff's lack of certification was discovered so late in the school year, and after talking to County education officials about the matter, he was inclined to allow her to remain in the classroom through the end of June -- the termination date for her contract. (See Id. ¶¶ 97-99, 104; see also Cohen Dep. 30-32.)
When the Board met again for an executive session in late June 2007, plaintiff had still not passed all of her required examinations and had not obtained her certification. (Id. ¶¶ 107-08.) Although plaintiff's only contract with the District at that time was to end on June 31, 2007, her father, George Talley, asked during the meeting that she be allowed to continue receiving health benefits. (Id. ¶ 108-109.) The District's general counsel responded that this would entail an illegal gift of public funds. According to Cohen's testimony, George Talley asked at the meeting if a teaching position could be held open for plaintiff until she got the results of her last certification test, which she took in the beginning of June 2007. (Id. ¶ 111.) George Talley, however, disputes that he made this request, or that he talked to anyone in the District about rehiring plaintiff. (G. Talley Dep. 91.)
According to Kirkham's deposition testimony, a clear division of allegiances existed between the members of the Board, with George Talley, Suzanne Bellinger, Stephen Coleman, and Lorraine Pace on one side, and the individual defendants and Helen Moss on the other. (Kirkham Dep. 117.) This division led to open verbal sparring at public board meetings. (See generally, Transcript of October 18, 2007 Board Meeting, Defs.' Ex. II.) Kirkham has referred to George Talley as a "plantation owner," (Kirkham Dep. 30-32), while Fritz referred to him as "King George." (Fritz Dep. 119-20.) Del Rio likened his personal relationship with George Talley to "an allergic reaction." (Del Rio Dep. 94-95.) At a public Board meeting, George Talley allegedly called Del Rio a "cockroach" and a "spic," prompting Del Rio to respond on the record that George Talley was a racist. (Id.) According to Coleman's testimony, Del Rio approached other Board members to accept nominations for Board President in an effort to block George Talley's candidacy for the presidency. (Coleman Dep. 26-28, Pl.'s Ex. B.) During a Board meeting on October 18, 2007, which is discussed in more depth below, Fritz took issue with George Talley's decision to vote against a contract to hire Jerry Kramer as a lobbyist for the District, and exclaimed to George Talley, "what comes around goes around." (Fritz Dep. 124-25.)
On June 27, 2007 Cohen recommended that the Board approve Tanya Moss, the daughter of Board member Helen Moss, for a teaching position with the District. (Defs.' 56.1 ¶¶ 113-15.) Her employment was approved by five votes of the Board.*fn8 (Id. ¶¶ 117-18.) George Talley abstained purportedly out of concern that she had not paid her dues by serving as a substitute teacher in the District before being hired, although he also stated that the recommendation for Tanya Moss's candidacy appeared to be a "consolation prize for [her] mommy losing the election." (G. Talley Dep. 42-43.) George Talley's abstention upset Del Rio, who confronted George Talley at the end of the June 27, 2007 meeting and told him that "nobody else is going to get a super majority vote in the district." (Del Rio Dep. 87; see also footnote 8.)
Plaintiff alleges that the position was specifically created for Tanya Moss by the individual defendants, and that the position was not, but should have been, posted internally to allow existing District teachers to apply. (Defs.' 56.1 ¶¶ 130-32.)
IV.Plaintiff's Candidacy for the 2007/2008 School Year
On or about August 27, 2007, plaintiff learned that she had passed the last test needed to obtain her teacher's certificate. (Id. ¶ 138.) She later received her official certification from the State of New York, effective September 1, 2007, in the areas of Childhood Education (Grades 1-6) and Students with Disabilities (Grades 1-6). (Id. ¶¶ 164-65; Pl.'s Teacher's Certificate, Defs.' Ex. AA.) On August 27, 2007, Victoria Regan ("Regan"), Director of Special Education, recommended that plaintiff be appointed to a "CFE" probationary teaching position at the District's Southwest Elementary School to begin in September 2007. (Id. ¶ 154.) Defendants assert that "certain District officials had been holding [this] teaching position open for plaintiff," (Defs.' 56.1 ¶ 144), but plaintiff argues that Regan was the only one openly advocating for her candidacy, as Regan believed plaintiff was the best candidate, and because plaintiff had previously taught the same class, (Pl.'s 56.1 ¶ 144). The parties also dispute whether it was typical to have a fall teaching position still open at the end of August. (Compare Defs.' 56.1 ¶ 142-43 with plaintiff's corresponding response.)
In September 2007, the District's new Superintendent, Donna Jones ("Jones"), recommended plaintiff to the Board for the job -- a probationary tenure-track position. (Id. ¶¶ 184, 192.) In her deposition testimony, Jones cites a number of reasons for making this recommendation, including that plaintiff was a good "fit" for the position, (Jones Dep. I 32),*fn9
that she had previously worked in the District schools, that she was certified, that she lived in the district, and because Jones felt pressure from George Talley who, at that time, was the President of the Board, (Jones Dep. II 13-14).
Plaintiff's position came up for a vote before the Board on September 20, 2007, but she only received four votes in her favor -- short of the supermajority she needed as the daughter of a Board member. (Defs.' 56.1 ¶¶ 187, 207; see also footnote 8.) The individual defendants all abstained from the vote.
The District continued to pay plaintiff after this point as a substitute teacher. (Id. ¶ 208.) When the individuals learned of this fact through the Superintendent's monthly report, they prepared a letter to Jones dated September 27, 2007, requesting information so they could "better understand the current status of [plaintiff's] employment." (Jones Letter, Defs.' Ex. EE.) Most of the ten items listed in the letter pertained to the individual defendants' concerns that a position had been improperly held open for plaintiff, and that proper procedures were not followed leading up to the September 2007 recommendation to the Board that plaintiff be hired. (Defs.' 56.1 ¶¶ 196-205.) Specifically, the defendants point to the following policies and rules that they felt may not have been followed. Under District Policy 4100, the Superintendent, through the District's human resources office, must "make a reasonable effort to interview the top ten percent of the most qualified applicants" who apply for a particular position. (See Defs.' 56.1 ¶ 159.) The same policy requires that in order to "further attract a wide range of talented and diverse candidates for professional positions (teachers and administrators), the District will, when necessary, place job announcements in local newspapers, the District newsletter, and make use of electronic media." Further, all open positions "should be posted on the District's website." (Defs.' 56.1 ¶ 160.)
The individual defendants' September 27, 2007 letter therefore demanded, among other things, a copy of any postings or advertisements for the special education teacher position for which plaintiff was hired, a list of the names of those who interviewed for the position, the resumes from all those who applied for the position, a copy of any termination letter sent to plaintiff following the Board's September 20, 2007 decision not to hire her, a copy of the advertisement to fill the position after this decision, and proof that plaintiff's position was one of the "70 positions approved [by the Board] under CFE."*fn10 (Letter to Jones, Defs.' Ex. EE.)
The District's human resources office responded that the position was not posted or advertised, which, the office noted, is only necessary where "there is a lack of bona fide candidates."*fn11 (HR Response Letter, Defs.' Ex. FF; Pl.'s 56.1 ¶ 343.) No other candidates were interviewed for the position. (HR Response Letter.) The District also did not issue plaintiff a termination letter, because the Board's vote only affected her candidacy for the probationary tenure track position, not her official status at that time as a substitute teacher. (Id.) Further, the District did not post or advertise for the position once plaintiff's vote failed. (Id.) As to the CFE issue, according the human resources office, plaintiff's position was never designated as a CFE-funded position. Rather, the employee who previously held the position that plaintiff was slated for, transferred to "IMC" to fill one of the designated CFE position at that location. Plaintiff was recommended to take this individual's place in a non-CFE position at the District's Southwest Elementary School. (Id.)
At the October 18, 2007 Board meeting, George Talley moved for a revote on plaintiff's candidacy for the position. (Defs.' 56.1 ¶ 240.) Before the Board members cast their vote, Kirkham stated the following on the record:
We were at a conference on Saturday, Educating Minority Children, and this was a very interesting statistic that [was] brought -- that [was] brought up. Out of five minority school districts, which Brentwood is one, they -- those five districts educate an average of 86.42 percent of minority students in grades -- grades pre-K through 12. Suffolk County's average is 26.8. But on the other hand, those same five districts only employ and average of 22.4 percent minority teachers.
Now, I know minority teachers that have tried to get into this District. I know white teachers that have tried to get into this District. And when you start correcting it, then I'll vote for it.
Right now I am not voting for it, because you know what, call a spade a spade or whatever, but right is right, and until you prove to me that you're going to accept other people, other nationalities. I hear that this year it was Tanya Moss in the elementary school and another teacher at the secondary level. Only two black teachers were hired in this District this summer, and that is ridiculous. I don't care if you don't agree with me, but that's ridiculous. (Transcript of October 18, 2007 Board Meeting ("Tr.") at 54-55, Defs.' Ex. II.)
The Board then voted, with all three individual defendants again abstaining, effectively depriving plaintiff of the super majority that she needed, and denying her the position. (Id. ¶ 243.) Shortly after this vote, but while the meeting was still in session, plaintiff, who was in the audience, took the public podium to address the Board. ((Id. ¶ 252.) The following dialogue ensued.
Plaintiff: Can you please explain to me, with my credentials, my years working in this District, why I am not qualified, and why you abstain against me?
Del Rio: I'm going to -- I don't have anything personal against you, like Mr. Talley didn't have anything personal against Tanya Moss.
Plaintiff: He [George Talley] didn't.
Del Rio: But he voted against her. And the fact remains that if that position was terminated June 30th, what happened to all the teachers that were licensed that were waiting to get that position? Plaintiff: I had a pending certification, which everybody gets before they have their initial certification. I have every right to be in that classroom. The State knows it. Michael Cohen was ...