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Leo v. New York City Department of Education

United States District Court, E.D. New York

November 17, 2014

SCOTT LEO, Plaintiff,


RAYMOND J. DEARIE, District Judge.

Plaintiff Scott Leo brings this action against the New York City Department of Education ("DOE") and Joseph Attilio pursuant to 42 U.S.C. § 1983 seeking redress for retaliation in violation of his First Amendment rights. Leo also sues for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Executive Law § 296 et seq., the New York City Human Rights Law, N.Y. City Administrative Code § 8-108, and for intentional infliction of emotional distress under New York law. Defendants have moved, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the complaint on the grounds that Leo's claims are barred by res judicata and/or collateral estoppel, because he has failed to satisfy certain statutory prerequisites to suit, and because he has failed to plead plausible claims. For the following reasons, defendants' motion to dismiss is granted.


Leo was a probationary English teacher at Information Technology High School ("ITHS") from August 2008 until September 2011. He was hired by Nancy Casella, ITHS's principal, who had taught Leo in college and had recruited him to join the ITHS faculty. For the 2008-2009 and 2009-2010 school years, Casella issued Leo overall satisfactory end-of-year performance reviews.

On October 29, 2010, the DOE relieved Casella of her position. Casella's removal was based on allegations filed by Joseph Attilio, an assistant principal at ITHS. Following Casella's removal, the chapter leader of the teachers' union - who was also Attilio's cousin - circulated a petition to fill the vacant principal position with an in-house assistant principal. Leo refused to sign the petition on November 2, 2010 "for his own personal reasons."

According to the complaint, because of Leo's refusal to sign the petition, and because he had supported Casella at a hearing prior to her removal, he was harassed by Attilio "on a daily and weekly basis." On November 4, 2010, Attilio conducted a "bogus impromptu" observation of Leo's classroom lesson without giving Leo notice or scheduling a pre-observation meeting. Leo's lesson asked students to identify how different ethnic groups are portrayed in the media. The following day, when Attilio held a post-observation conference with Leo, he deemed the lesson "distasteful" and rated it "unsatisfactory." Attilio also reminded Leo that his probationary period was soon ending and that his eligibility for tenure was approaching. In concluding the meeting, Attilio gave Leo a list of "rigorous requirements" that Leo was forced to comply with. Leo alleges that he met these requirements and subsequently received four "satisfactory" classroom reviews. While Leo kept a log detailing Attilio's harassment, the only other allegation of harassment in the complaint is that during the administration of the regents exams, Attilio assigned more proctoring assignments to Leo than any other teacher.

As the end of the school year approached, on May 9, 2011, Patricia Martin, the acting interim principal, attempted to "coerce" Leo into signing an agreement to extend his probationary period. Leo refused. On June 27, 2011, Leo received an "unsatisfactory" rating on his annual performance review. Among other things, the performance review lists Leo's refusal to sign the extension of probation as a reason for the "unsatisfactory" rating. On July 9, 2011, Leo received a letter terminating his employment and placing him on the DOE's ineligible list. Leo alleges that he is an excellent teacher and that his termination was "pure retaliation."

Leo filed a notice of claim with the DOE on August 4, 2011, a copy of which has since been included in Leo's briefing. On October 18, 2011, the DOE held a hearing to review Leo's claim and sustained the decision to terminate his employment. Leo's termination was reaffirmed by the superintendent on April 20, 2012.

Though the complaint does not reference the fact, on December 13, 2011, Leo commenced an Article 78 proceeding in New York Supreme Court, appearing pro se, challenging the termination of his employment, his "unsatisfactory" performance review, the revocation of his teaching certification, and his placement on the ineligible list. The DOE cross-moved to dismiss, and on March 21, 2012, the Supreme Court granted that motion. Leo v. New York City Dept. of Educ., No. 113955/2011, 2012 NY Slip Op 30735(U), 2012 N.Y. Misc. Lexis 1354 (Sup.Ct., N.Y. Cty. Mar. 21, 2012). The record in the Article 78 proceeding was considerably more detailed than the instant complaint. In her opinion, Judge Kerns quotes from "evidence supporting [Leo's] unsatisfactory rating" such as classroom observation reports and letters from Attilio and Martin, and also relies on the testimony from Leo's DOE Office of Appeals and Reviews ("OAR") hearing held on October 18, 2011. Id. at *3-9. For instance, the observation report "details" how Leo's lesson on stereotypes was "distasteful and inappropriate" and caused "several students... to feel uncomfortable, " and that Leo's lesson plan for the class "appeared to be a half-finished draft' on his mobile phone" showing "nothing alluding to higher-order questioning, '... and it did not make any provisions for an evaluation of how well [Leo's] students could demonstrate the mastery of the [lesson's] aim.'" Id. at *4. The letters "further detailed" Leo's "hostile attitude" toward administrators and an incident where Leo began "screaming" at a co-worker. Id. at *6. At the OAR hearing, Principal Martin "explained how the effort required to properly prepare [Leo] to deliver a lesson was very expensive, ' necessitating numerous pre-observation meetings and rewriting of petitioner's lesson plans" and stated that Leo "demonstrated unprofessional' characteristics, including being evasive' when supervisors discussed his ability to deliver a lesson." Id. at *8. Leo even "admit[ted] to falsely telling ITHS administrators that he had been discussing his issues with an individual at... the DOE's central headquarters, hoping that ITHS administrators would be scared.'" Id. at *6. On the basis of that record, the Supreme Court concluded that Leo did not satisfy "his burden of showing that the termination of his probationary teaching position was in bad faith." Id. at* 12. As the Supreme Court reasoned:

While petitioner asserts that he was subject to "harassment" by administrators making "political" moves, he does not provide any factual allegations supporting his speculative reasons behind ITHS's decision to terminate him. The DOE terminated petitioner based on petitioner's overall [unsatisfactory] rating for the 2010-2011 school year, the unsatisfactory classroom observation conducted on November 4, 2010, petitioner's strained relationship with other teachers and his supervisors, petitioner's unprofessional attitude toward ITHS administrators, including his refusal to agree to an extension of his probationary period and the supporting testimony of Principal Martin and [assistant principal] Attilio at petitioner's OAR hearing. As petitioner has not demonstrated that the DOE's actions were taken in bad faith, that portion of petitioner's petition challenging his termination as a probationary teacher must be denied.

Id. at 12-13. The court also denied the portion of Leo's petition seeking to challenge his "unsatisfactory" rating as premature since the chancellor of the DOE had not yet denied his appeal. Id. at 13.

The Appellate Division affirmed the Supreme Court's decision on November 20, 2012, stating that "the court correctly sustained [the revocation of Leo's teaching certification, the placement of his name on the ineligible/inquiry list, ] and the determination terminating petitioner from his probationary employment because petitioner failed to establish that his termination was done in bad faith." Leo v. New York City Dept. of Educ., 100 A.D.3d 536, 536-37 (1st Dep't 2012). The First Department added that "the record contains evidence of good faith on respondent's part - for example, Principal Martin's intention was not to terminate petitioner's employment but to extend his probation for an additional year - as well as evidence of deficiencies in petitioner's performance." Id. at 537. The Appellate Division also found that the challenge to the "unsatisfactory" rating "was premature because [Leo] did not exhaust his administrative remedies." Id.

On April 15, 2013, through counsel, Leo filed the instant suit, alleging that he was terminated for exercising his First Amendment rights. Defendants ...

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