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Micillo v. New York City Department of Education

United States District Court, S.D. New York

February 2, 2015

JOHN MICILLO, Plaintiff,

For John Micillo, Plaintiff: Christine Ann Palmieri, Liddle & Robinson, LLP, New York, NY, USA.

For New York City Department of Education, Defendant: Daniel J. Larose, LEAD ATTORNEY, Nyc Law Dept., New York, NY, USA; Grace Diane Kim, LEAD ATTORNEY, New York City Law Department, New York, NY, USA.


GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiff John Micillo brings this action alleging claims under 42 U.S.C. § 1983, the National Labor Relations Act, 29 U.S.C. § § 151 et seq. (" NLRA"), and New York State Civil Service Law § 75-b, arising out of the termination of his employment with the New York City Department of Education (" DOE"). The DOE now moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[1] For the following reasons, this motion should be granted.


For purposes of deciding the DOE's motion to dismiss, the Court assumes the allegations in Micillo's amended complaint are true and draws all reasonable inferences in Micillo's favor. See, e.g., Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014).

Micillo began his employment with the DOE as a teacher in 1995 and subsequently received tenure. First Amended Complaint, filed Mar. 24, 2014 (Docket # 4) (" Compl."), ¶ 6. In 2002, Micillo " became an Assistant Principal and achieved tenure for that role in 2007." Id. Throughout his employment as an Assistant Principal, Micillo was " a member of Local 1 of the American Federation of School Administrators, known as the Council of Supervisors and Administrators of the City of New York ('CSA')." Id. ¶ 7.

On September 21, 2012, Micillo became " re-employed" by the DOE as an " Interim Acting Assistant Principal for The High School for Medical Professionals" at the Canarsie Educational Campus in Brooklyn, New York. Id. ¶ 8. " On October 25, 2012, Micillo was named the Athletic Director for the Campus." Id. ¶ 9. " One of Micillo's responsibilities in that role was to collect and submit payroll for the coaches." Id.

On November 16, 2012, Micillo received completed timecards and time sheets for three football coaches, including the head football coach, for the period ending November 15, 2012. See id. ¶ 11, 13. After reviewing the cards, Micillo noticed all three were identical. Id. ¶ 12. Micillo then reviewed the timecards for the three football coaches for the previous period ending October 31, 2012. See id. ¶ ¶ 10, 12. Micillo saw that those cards were also identical. Id. ¶ 12. " That same day, November 16, 2012, Micillo informed his Principal, Joseph Scarmato, and another Principal on the Campus, Adaleza Michalena, that he believed the football coaches were engaging in timecard fraud and that the head coach was punching in and out for all three coaches." Id. ¶ 13. Micillo was informed by Principal Michalena that " there had been a similar problem with the prior coach" but that he " should not do anything about his discovery other than speak to the coaches to institute new procedures that would make it more difficult for the fraud to occur in the future." Id. ¶ 14.

On Monday, November 19, 2012, Micillo " attended his second interview in the Regulation C-30 process, which governs the selection and appointment of principals and assistant principals." Id. ¶ 15. During this interview, in which Principals Scarmato and Michalena both participated, Micillo was treated " coldly" even though his first interview had gone well. Id. The following day, Micillo and Principal Scarmato met with the three football coaches to " explain the new timecard procedures." Id. at ¶ 16. The head coach responded hostilely. Id. The day after that, " Principal Scarmato demanded that Micillo submit the coaches' timecards and time sheets for the periods ending October 31 and November 15, 2012 so that they could be paid." Id. ¶ 17.

" On November 26, 2012, Micillo was informed that his employment would be terminated effective January 2, 2013, " and he received written confirmation of his termination the following day, November 27, 2012. Id. ¶ 18. No reason was provided for his termination and no one else had been selected to fill the position. Id. On November 28, 2012, Micillo " reported the timecard fraud and his retaliatory termination to his CSA representative, as well as to The Special Commissioner of Investigation for the New York City School District, which is a unit of the New York City Department of Investigations [sic]." Id. ¶ 19. Shortly thereafter, Micillo " was informed that he was no longer welcome in the school because he was not a team player. He was instead issued daily assignments outside of the school building as a mentor to schools in need of assistance." Id. In early December 2012, " the head football coach acknowledged he had punched the timecards of all three coaches, " during a meeting in the presence of Micillo, Principals Scarmato and Michalena, and others. Id. ¶ 20.


A party may move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) where the opposing party's pleading " fail[s] to state a claim upon which relief can be granted." While a court must accept as true all of the allegations contained in a complaint, that principle does not apply to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" [A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.") (citation, internal quotation marks, and brackets omitted). In other words, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678, and thus, a court's first task is to disregard any conclusory statements in a complaint, id. at 679.

Next, a court must determine if a complaint contains " sufficient factual matter" which, if accepted as true, states a claim that is " plausible on its face." Id. at 678 (citation and internal quotation marks omitted); accord Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (" [A] complaint must allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion.") (citations omitted). " 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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). " [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ...

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