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Thomas v. New York City Dep't of Educ.

United States District Court, E.D. New York

March 29, 2013

MARIE ANNE THOMAS, LEVERETT HOLMES, JOSEFINA CRUZ, BRIAN SALAZAR, DAVID PAKTER, and PAUL SANTUCCI, on behalf of all persons similarly situated pedagogues or tenured educational personnel unfairly brought up on 3020-a Disciplinary Charges since the 2002 abolishment of the NYC Board of Education and subjected to unlawful confinement in Teacher Reassignment Centers a/k/a Rubber Rooms, Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION f/k/a BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK; JOEL I. KLEIN, in his official capacity as Chancellor of the CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK and individually; LAWRENCE BECKER, in his official capacity as Chief Executive Officer DIVISION OF HUMAN RESOURCES and individually; PHILIP CROWE, in his official capacity as HUMAN RESOURCES DIRECTOR, and individually; JUDITH RIVERA, in her official capacity as DEPUTY HUMAN RESOURCES DIRECTOR and individually, Defendants

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[Copyrighted Material Omitted]

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Marie Anne Thomas, Plaintiff, Pro se, Brooklyn, NY.

Leevert Holmes, also known as Leverett Holmes, Plaintiff, Pro se, New York, NY.

For Leevert Holmes, also known as Leverett Holmes, Brian Salazar, David Pakter, Paul Santucci, on behalf of all persons similarly situated pedagogues, or tenured educational personnel unfairly brought up on 3020-a Disciplinary Charges since the 2002 abolishment of the NYC Board of Education and subjected to unlawful confinement in Teacher Reassignm, Plaintiffs: Joy Hochstadt, Joy Hochstadt, P.C., New York, NY.

Josefina Cruz, Plaintiff, Pro se, New York, NY.

For New York City Department of Education, formerly known as Board of Education of the City School District of the City of New York, Joel I. Klein, in his official capacity as Chancellor of the City School District of the City of New York and individually, Lawrence Becker, in his official capacity as Chief Executive Officer, Division of Human Resources and individually, Philip Crowe, in his offiicial capacity as Human Resources Director, and individually, Judith Rivera, in her official capacity as Deputy Human Resources Director and individually, Defendants: Maxwell Douglas Leighton, LEAD ATTORNEY, New York City Law Department, New York, NY.

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MEMORANDUM AND ORDER

SANDRA L. TOWNES, United States District Judge.

In November 2009, Plaintiff Josefina Cruz (" Plaintiff" or " Cruz" ) and four other tenured New York City public school teachers who had been removed from the classroom and subjected to disciplinary procedures by the New York City Department of Education (the " DOE" ) commenced this action, alleging various federal constitutional violations. Thereafter, the DOE and the four individuals named as defendants in this action -- all of whom are high-ranking employees of the DOE -- collectively moved to dismiss. In a memorandum and order dated March 29, 2011 (the " Prior M& O" ), this Court granted that motion in part, holding, inter alia, that the complaint failed to state a due process claim or a First Amendment retaliation claim. This Court granted the plaintiffs leave to amend their pleadings, but placed certain restrictions on the re-alleging of the due process and First Amendment retaliation claims.

In June 2011, Plaintiff, now proceeding pro se, filed an amended complaint (the " Amended Complaint" ) which re-alleges the First Amendment retaliation and due process claims. Defendants now move to dismiss the Amended Complaint, arguing (1) that the restrictions set forth in the Prior M& O preclude Plaintiff from re-alleging these claims and (2) that the claims are barred by res judicata and collateral estoppel. For the reasons set forth below, defendants' motion is granted and Plaintiff's Amended Complaint is dismissed.

BACKGROUND

Prior to her termination in December 2008, Plaintiff was a tenured New York City public school teacher employed by defendant DOE. Amended Complaint at ¶ ¶ 4, 8. In early 2005 and 2006, Plaintiff and other teachers " spoke out" on various topics which Plaintiff characterizes as " issues of public importance." Id. at ¶ 56. Plaintiff alleges that, as a result of these actions, she and the other teachers " were falsely charged or accused as being incompetent, or insubordinate or having engaged in improper sexual or corporal acts, or [being] otherwise unfit for service as teachers." Id. at ¶ ¶ 57-58.

While Plaintiff's Amended Complaint alleges that Plaintiff was charged with " violations for which Defendants sought to impose discipline" in June 2009, id. at ¶ ¶ 62, 82, the pleading does not elaborate on the charges brought against her. However, this Court will take judicial notice of the fact that the " DOE asserted fourteen specifications against Cruz in categories of incompetent service, insubordination/neglect of duty, and abusive conduct during the 2004-2005, and 2005-2006 school years." Cruz v. N.Y. City Dep't of Educ., 26 Misc.3d 1208[A], 906 N.Y.S.2d 778 (Table), 2010 NY Slip Op 50016[U], 2010 WL 93235, at *6 (N.Y. S.Ct. Jan. 5, 2010). There is nothing in the Amended Complaint or elsewhere to suggest that the " abusive conduct" with which Plaintiff was charged was alleged to be of a physical or sexual nature.

As a result of these charges, Plaintiff was removed from her teaching position and reassigned to a " Teacher Reassignment Center" (or " TRC" ), colloquially referred to as a " Rubber Room." Id. at ¶ 59. Although defendant Rivera, the Human Resources supervisor in the TRC, may have improperly docked Plaintiff's pay on certain occasions after January 15, 2008, id. at ¶ 109, Plaintiff continued to receive full salary and benefits until December 2008, when her disciplinary hearing concluded

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and Plaintiff was terminated. Id. at ¶ ¶ 59, 114.

Plaintiff's Prior State Court Action

Plaintiff has been involved in several other lawsuits relating to her treatment by the DOE, two of which are relevant here. One of these -- Cruz v. N.Y. City Dep't of Educ., New York County Index No. 117004/08 -- was a State Court proceeding commenced in mid-December 2008 pursuant to Article 75 of New York Civil Procedure Law and Rules (the " CPLR" ). In that Article 75 proceeding, Plaintiff sought to set aside the arbitrator's decision that resulted in her termination.

In January 2010, Justice Saliann Scarpulla of the Supreme Court of the State of New York, New York County, ruled that Plaintiff's Article 75 proceeding was " both procedurally infirm and lack[ed] substance on the merits." Cruz, 26 Misc.3d 1208[A], 906 N.Y.S.2d 778, 2010 WL 93235, at *6. Justice Scarpulla found two procedural defects. First, the justice noted that Plaintiff had commenced the proceeding by filing a summons and notice, rather than by filing a petition as required by CPLR 304. 26 Misc.3d 1208[A], 906 N.Y.S.2d 778, 2010 WL 93235, at *3. Second, Justice Scarpulla found that the proceeding was time-barred because Plaintiff did not commence the proceeding within 10 days of her receipt of the arbitrator's decision, as required by N.Y. Educ. Law § 3020-a. Id.

Justice Scarpulla also addressed the merits of Plaintiff's claims and found Plaintiff's arguments unpersuasive. The justice rejected, inter alia, the argument that the disciplinary proceedings were " corrupt" because Plaintiff was forced to proceed without the assistance of counsel," finding that " Cruz was given ample time and opportunity to find replacement counsel" after her original counsel withdrew, but " chose not to retain replacement counsel, and not to participate or provide a defense in the proceedings against her." 26 Misc.3d 1208[A], 906 N.Y.S.2d 778, Id . at *5. In addition, Justice Scarpulla rejected arguments that the arbitrator " failed timely to hold a pre-hearing conference, did not complete the hearing within 60-days of the pre-hearing conference, and failed to issue a decision within 30 days of the final hearing date," finding that because Plaintiff " did not timely make and preserve these objections," they were waived. Id.

Plaintiff's Prior Federal Action

The second of the prior actions which merits discussion was a federal action -- Adams v. N.Y. State Educ. Dep't -- which was commenced in the United States District Court for the Southern District of New York in June 2008. The original complaint in that action was drafted by an attorney named Edward D. Fagan and named 40 plaintiffs, including Cruz, all of whom were New York City public school teachers or other DOE employees who had been charged with misconduct and were involved in disciplinary proceedings. That pleading named the New York State Education Department (" NYSED" ), its Commissioner, its Tenure Teaching Hearing Unit (the " Unit" ), and approximately 18 NYSED employees as defendants and alleged, inter alia, that the hearing procedures employed by the NYSED violated the plaintiff's Fourteenth Amendment due process rights, the terms of their collective bargaining agreement, and provisions of the New York State Education Law.

On October 8, 2008, Fagan was granted leave to withdraw as counsel for approximately half of the 40 plaintiffs, not including Plaintiff. Later that month, Fagan filed an amended complaint on behalf of Plaintiff and his other remaining clients, which discontinued the action against all but one of the 18 NYSED employees and added four new defendants: the City of New York; its Mayor, Michael Bloomberg; the DOE; and Chancellor Klein (collectively, the " City Defendants" ).

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In late 2008, Fagan was disbarred, rendering all of the plaintiffs pro se . Thereafter, many of the original 40 plaintiffs either voluntarily dismissed their actions without prejudice or had their actions dismissed without prejudice for failing to appear at conferences or otherwise failing to prosecute their actions. However, Plaintiff and ten other plaintiffs continued to prosecute the action pro se . On January 7, 2009, those plaintiffs were granted leave to file a second amended complaint.

Eight of the remaining plaintiffs -- including Plaintiff -- jointly filed a second amended complaint.[1] That pleading, which named the same defendants as the first amended complaint alleged, inter alia, that the defendants violated the plaintiff's First Amendment rights " by retaliating against them after they spoke out against the polices and programs that the . . . City Defendants . . . 'implement[ed]' in the New York City school system and the 'unconstitutionality' of New York Education Law § 3020-a 'as enacted, changed and/or implemented against them.'" Adams v. New York State Educ. Dept., No. 08 Civ. 5996 (VM)(AJP), 2010 WL 624020, at *1 (S.D.N.Y. Feb. 23, 2010) (quoting 2d Am. Compl. ¶ ¶ 556-66, 627, 631-34). In addition, the complaint alleged that the City Defendants deprived the plaintiffs of " their due process rights to 'fair and impartial' § 3020-a hearings" by including in Article 21G of their collective bargaining agreement with the United Federation of Teachers (the " CBA" ) provisions " in contravention of NYS Education Law § § 3020 and 3020-a." Id. (quoting 2d Am. Compl. ¶ ¶ 591-605).

In August 2009, about six months after the second amended complaint was filed, Magistrate Judge Peck held a status conference at which one of Plaintiff's co-defendants voluntarily dismissed her action. Judge Peck gave the remaining seven pro se plaintiffs the option of further amending their pleading. However, those defendants elected not to do so.

On September 11, 2009, the City Defendants moved to dismiss the second amended complaint, arguing, inter alia, that the First Amendment retaliation claim failed to allege " any details of the plaintiffs' alleged protected speech" and contained " only conclusory allegations of retaliation" and (2) that the due process claim failed to establish that plaintiffs had a " constitutionally protected property interest" and did not receive the process that was due. Id. Less than two weeks later, the plaintiffs retained an attorney -- Nicholas Alexander Penovsky -- to represent them. Penovsky represented all of the remaining plaintiffs for about a month until Plaintiff retained another attorney, Joy Hochstadt, in mid-November 2009. A few weeks later, another plaintiff -- Twana Adams -- also retained Hochstadt, but Penovsky continued to represent the other five defendants.

Penovsky and Hochstadt ultimately filed a joint memorandum in opposition to the City Defendants' motion. Thereafter, the motion was referred by District Judge Marrero to Magistrate Judge Peck pursuant to 28 U.S.C. § 636(b)(I)(B). On February 23, 2010, Judge Peck issued a lengthy report and recommendation, in which he recommended that the City Defendants' motion be granted and that the plaintiffs, who " previously had been given a chance to file a third amended complaint and declined to do so," not be granted leave to amend their pleadings. Adams, 2010 WL 624020, at *39.

Judge Peck's report and recommendation specifically addressed both the plaintiff's

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First Amendment retaliation and due process claims. With respect to the former, Judge Peck noted that the speech which allegedly prompted the retaliation against Cruz consisted of complaints " about classroom overcrowding and teacher schedules." [WL] at *26. Since Plaintiff's speech " concerned her personal grievances." rather than matters of public concern, it could not serve as the basis for a valid First Amendment retaliation claim. Id.

With respect to the due process claim, Judge Peck first noted that the plaintiffs contended that Article 21G of the CBA violated their due process rights in three respects: " (1) replacing the three-member panel with a single hearing officer; (2) providing for an " expedited hearing process" where the DOE seeks to discipline teachers for absences or lateness and does not seek to terminate them; and (3) implementing a 'permanent rotational panel' of hearing officers who are allowed to serve 'excessive periods of time' and earn up to $1900 per day." [WL] at *31 (quoting 2d Am. Compl. ¶ ¶ 540, 592, 594.). Judge Peck declined to address the argument relating to the expedited hearing process, noting that none of the plaintiffs alleged that the DOE was seeking an expedited hearing to discipline them for tardiness or lateness. Id., n. 37. Then, citing to Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 547-48, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and other cases setting forth the constitutional due process requirements, Judge Peck concluded:

Replacing the three-member panel with a single hearing officer and implementing a " permanent rotational panel," neither affects whether a tenured teacher receives " oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story," as due process requires.

[WL] at *31.

The plaintiffs objected to Judge Peck's report and recommendation, arguing that it " did not take into account relevant facts alleged as to each Plaintiff that, if accepted as true for the purposes of evaluating a motion to dismiss, would be sufficient to state a cognizable claim for First Amendment retaliation . . . [and] denial of due process . . . ." Adams v. New York State Educ. Dept., 705 F.Supp.2d 298, 301 (S.D.N.Y. 2010). Accordingly, Judge Marrero reviewed both the First Amendment retaliation and due process claims de novo. See 28 U.S.C. § 636(b)(i). In a Decision and Order dated April 6, 2010, Judge Marrero held that the plaintiff's First Amendment retaliation claims were " deficient because in each case the incidents upon which Plaintiffs base their pleadings concerned personal grievances expressed as employees generally relating to their official duties, work schedules, working conditions, or employer administrative policies and internal operations, rather than to any matters of public concern raised by Plaintiffs as private citizens." Adams, 705 F.Supp.2d at 302-03. Judge Marrero also rejected the due process claims, noting that New York State Education Law § 3020(4) expressly provided that the procedures set forth in § 3020-a could be modified by collective bargaining agreements. Id. at 303. Accordingly, the judge adopted the report and recommendation to the extent that it found that the plaintiff's complaint failed to state First Amendment retaliation and due process claims.

However, Judge Marrero rejected that portion of the report and recommendation that denied the plaintiff leave to file a third amended complaint. The judge noted that the second amended complaint had been " prepared pro se ," and that the plaintiffs

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had retained counsel sometime after rejecting Judge Peck's offers to allow them to amend the pleading. Id. at 301. " Recognizing the extensive complexities and many pitfalls that are inherent, even for trained attorneys, in drafting a complaint sufficiently alleging multiple constitutional and statutory claims under both federal and state law," Judge Marrero granted the plaintiffs leave to file a third amended complaint. The judge expressly noted that, " [o]n repleading," the plaintiffs could " elaborate on their allegations that Defendants denied them due process of law by not affording them sufficient opportunity to be heard at disciplinary proceedings within a meaningful time." Id. at 303.

On May 6, 2010, Penovsky and Hochstadt jointly filed a third amended complaint on behalf of Plaintiff and her six remaining co-plaintiffs. By order dated May 13, 2010, Judge Peck identified certain problems with that pleading and directed the attorneys to file a fourth amended complaint to cure those problems. That pleading, filed June 11, 2010, added one defendant -- David M. Steiner, the new State Commissioner of Education -- but continued to name all of the City Defendants as parties. The fourth amended complaint alleged, inter alia, violations of the plaintiffs' procedural due process rights and First Amendment retaliation in connection with the filing of another lawsuit: Teahers4Action v. Bloomberg, S.D.N.Y. Docket No. 08 Civ. 548. The complaint also alleged that the defendants violated three co-plaintiff's First Amendment rights " by ...


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