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Jonathan Burke v. State University of New York

November 29, 2012


The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge


Plaintiff Jonathan Burke commenced the instant action against Defendants claiming that he was retaliated against for engaging in protected speech and that he was denied the equal protection of the laws. Presently before the Court is Defendants' motion for summary judgment seeking dismissal of the Complaint and Plaintiff's cross-motion pursuant to Fed. R. Civ. P. 56(d) and for leave to file an amended complaint.

I. FACTS*fn1

Plaintiff Jonathan Burke joined the Sherburne-Earlville Central School District ("SECSD") in September 2000 as a teacher of sixth grade social studies. At that time, Plaintiff was operating under a conditional teaching certificate issued by the New York State Education Department ("State Education Department"). In 2001, Plaintiff received a provisional teaching certificate permitting him to teach sixth grade social studies for a period of five years. The certificate was to expire on August 31, 2006.

As on December 2005, Plaintiff had neither obtained his masters degree nor completed several other requirements necessary to apply for a permanent teaching certificate. Plaintiff did obtain an extension of his provisional teaching certificate that permitted him to teach during the 2006-2007 school year.

At various times during the 2005-2006 and 2006-2007 school years, Defendant Superintendent Gayle Hellert encouraged Plaintiff to obtained his permanent certificate and advised that the failure to obtain a permanent certificate would result in termination. On May 17, 2007, Hellert instructed Plaintiff to schedule a meeting with her "prior to May 24, 2007 to discuss [his] certification issues and [his] plan to become permanently certified."

In June 2007, Hellert checked with the State Education Department's online website and learned that Plaintiff had not yet fulfilled the criteria for permanent certification. Plaintiff was warned that failure to obtain a certification or be clearly eligible for certification by August 1, 2007 would result in termination of his employment.

In the summer of 2007, Plaintiff applied to the State Education Department for an additional extension on his expired provisional teaching certificate. On the application, Plaintiff indicated that he expected to complete his master's degree by "Sept. 2006" and that he had completed all course work and was awaiting a grade on his thesis.

At the beginning of the 2007-2008 school year, Plaintiff was operating under a special time extension on his provisional certificate. His application for an additional extension was pending. As of February 2008, Plaintiff had not received a final grade on his masters thesis and not obtained his degree. On February 11, 2008, Hellert wrote Plaintiff advising that "the district will not be able to continue to employ you into the 2008-2009 school year" unless he met the certification requirements by August 1, 2008.

In March 2008, the State Education Department granted Plaintiff a further extension on his provisional teaching certificate, permitting him to teach during the 2008-2009 school year. Hellert continued to be in contact with Plaintiff concerning his certificate. On July 22, 2008, Hellert wrote Plaintiff asking him to "[p]lease submit proof of certification . . . or your resignation by August 4, 2008."

On August 8, 2008, Plaintiff delivered a letter to Hellert dated August 7, 2008 from Dr. Kahn, the professor in charge of Plaintiff's masters thesis, stating "Jonathan Burke has completed all requirements of a Masters of Art in the field of Information Design & Technology. . . ." Hellert later called Dr. Schneider, the interim Dean of the School of Arts & Sciences at SUNY IT, during which time Hellert mentioned the letter Plaintiff provided from Dr. Kahn. Schneider apparently indicated that Dr. Kahn was away on a family emergency and would not have been able to author the letter. Suspicions arose concerning whether the letter from Dr. Kahn was authentic. On August 26, 2007, Dr. Schneider wrote to Hellert and advised that Plaintiff had not completed the requirements for his masters degree.

On September 18, 2008, Hellert was contacted by the Chief of SUNY IT's Campus Police Department. Chief Jecko appeared at Hellert's office and asked for a statement concerning her receipt of the letter from Dr. Kahn and her conversations with Dr. Schneider. Hellert complied. On September 21, 2008, Plaintiff wrote an e-mail to each member of the SECSD Board of Education to request an opportunity to be placed on a future meeting agenda and to address them. The Board of Education declined to speak with Plaintiff.

By February 2009, Plaintiff had not provided Hellert with information concerning the resolution of his obtaining a masters degree. On March 18, 2009, Hellert requested a status update. Plaintiff responded that he submitted his thesis, was complying with the requirements of SUNY IT and that the college would be hearing from his attorney.

In May 2009, Hellert contacted the State Education Department and learned that Plaintiff could not obtain any further extensions of his provisional certification. By memorandum dated May 7, 2009, Hellert wrote to Plaintiff advising that he was not eligible for further extensions of his provisional certification, the failure to receive a master degree and obtain certification by September 1, 2009 would render him unemployable at the SECSD, and that if Plaintiff was unable to teach, the SECSD would commence a termination hearing under N.Y. State Ed. Law § 3020-a.

By e-mail dated May 29, 2009, Plaintiff tendered his resignation to Hellert and each member of the Board of Education. Plaintiff wrote that he resigned effective August 7, 2009, unless he received his permanent certificate before that time. Plaintiff also requested an opportunity to address the Board, which request was granted. Plaintiff and his attorney were permitted to speak with the Board during executive session on June 8, 2009. Thereafter, on that same date, the Board voted to accept Plaintiff's resignation, subject to the request contingency concerning his receipt of his permanent teaching ...

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