United States District Court, N.D. New York
DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiffs Mary Lou Hilow and Regis Hilow commenced the instant action pursuant to the provisions in the Racketeer Influenced and Corrupt Organizations Act providing for a civil right of action, 18 U.S.C. § 1964(c), as well as other causes of action. Plaintiffs allege that Defendants have engaged in a 25-year conspiracy to deprive Plaintiff Mary Lou Hilow of a tenured teaching position in the Rome City School District and prevent her from enjoying the salary and retirement benefits connected to such position. Presently before the Court are the motions to dismiss the Complaint of Defendants Rome Sentinel Newspaper Company, dkt. #10, Robert Julian, dkt. #13, New York State United Teachers, Rome Teachers Association, and James R. Sander, dkt. #14, and Karen DeCrow, dkt. #17. Also before the Court are the motions for summary judgment of Defendants Ferrara, Fiorenza, Larrison Barrett & Reitz, PC, dkt. #34, and Rome City School District, dkt. #55.
Plaintiffs' Complaint alleges that Plaintiff Mary Lou Hilow was a full-time business teacher at Rome Free Academy from 1964-1969, 1978-1983 and 1986-1989. (Complaint ("Complt."), dkt. #1 at ¶1). Mary Lou Hilow received tenure in business education in 1967 and again in 1980. (Id. at ¶ 2). She was awarded permanent certification to teach business education in New York State in 1974. (Id. at ¶ 3). In 1989, she earned additional tenure as a technology teacher. (Id. at ¶ 6). Plaintiff became a member of the Rome Teachers' Association ("RTA") and the New York State Union of Teachers ("NYSUT") in 1978 and has remained a member to this day, first as a permanent teacher, then as a per diem substitute, and finally as a retired teacher. (Id. at ¶ 4). Hilow paid appropriate dues for each position. (Id.)
Plaintiff Mary Hou Hilow alleges that Defendants knew that she had an "impeccable" work record from the beginning of her career. (Id. at ¶ 5). The records documenting her teaching career, dating to the 1960s, demonstrate her skills, credentials and record. (Id. at ¶ 7). Plaintiff was also a member of a "protected age class." (Id.). Nevertheless, Plaintiff contends, Defendants "formed an Enterprise in which members... conspired and engaged in numerous predicate acts to terminate Plaintiff's tenured teaching position three times and engage in a 31-year RICO pattern of overt discrimination, vicious retaliation, blacklisting, repeated fraud upon the court in a series of backroom legal proceedings, obstruction of justice, concealment and unprecedented pervasive cover-up." (Id.). The aim of this conspiracy was "to shatter and destroy Plaintiff's teaching career, her livelihood, her physical and mental wellbeing, her American Dream, her civil rights and the promise of equal justice for all[.]" (Id.).
Plaintiff Mary Lou Hilow lays out a series of allegations concerning her employment that extend as far back as 1970. In March of that year, she contends, she took a maternity leave. (Id. at ¶ 8). While on leave, Helen Arthur, "vice-principal [sic]" of the RFA, called Plaitniff and told her that she would have to resign and withdraw her retirement if she was unable to return to teaching by the following September. (Id.) The district needed to hire a "permanent" teacher. (Id.). This call led Plaintiff-while pregnant with her second child-to resign in a letter dated March 8, 1970. (Id. at ¶ 9). Following Arthur's direction, Plaitniff withdrew her retirement funds. (Id. at ¶ 10). Other female RFA teachers received similar directions in the 1960s and 1970s, including former English teacher Mary Ellison Smith. (Id. at ¶ 11).
Mary Lou Hilow applied for a position in business in the Rome District that was advertised in 1977. (Id. at ¶ 12). She was denied the position, even though she had five years seniority, from 1964 to 1969, and "impeccable" records as a substitute teacher and home tutor from 1964 to 1977. (Id.). Instead, a younger teacher who had been a substitute in the district for one year, Laurene Allen Zarnock, was hired at a lower salary. (Id.).
In 1978, Plaintiff Mary Lou Hilow called the Rome Free Academy Principal, Richard Valeri, and volunteered to serve as yearbook advisor. (Id. at ¶ 13). A teaching position was created for Plaintiff. (Id.). Plaintiff was hired as a business teacher and yearbook advisor to both the editorial and business staffs. (Id.). She had a full schedule with "ample student enrollment." (Id.). Plaintiff lacked a planning period, in violation of the union contract, however. (Id.). RTA officials were aware of these violations, but took no action and made no complaints. (Id.).
Plaintiff, despite her tenure and certification to teach business, was "wrongfully terminated from 1983 to 1986." (Id. at ¶ 14). Plaintiff alleges that "[t]he trumped-up reason given was a continuing decline in enrollments[.]" (Id.). She contends that this reason was false, and not "bone fide" grounds to terminate a tenured teacher with "impeccable records." (Id.). During three periods while Plaintiff was terminated, 1983-1986, 13 days in 1988, and from 1989 to 1996, three younger male teachers taught business at RFA, even though they lacked certfications to teach business. (Id. at ¶ 15). Jerome Tidd, Frank Martinez and Paul Adey received these positions. (Id.). Martinez and Adey were eventually transferred to the social studies department, which allowed them to keep their jobs. (Id.). Tidd retired after 28 years with the Rome District. (Id.). Plaintiff alleges that she was older than 40 at the time of each of these three terminations. (Id. at ¶ 23).
Plaintiff returned to work for the District in 1986, replacing Bob Haunfelner, a business teacher who had passed away. (Id. at ¶ 16). In March 1988, Plaintiff and seven other teachers received termination notices. (Id. at ¶ 17). Plaintiffs contend that the stated reason for this termination, declining enrollments at the secondary level, was "trumped-up[.]" In any case, a declining enrollment was not a "bona fide reason" for such terminations. (Id.). Plaintiffs allege that the terminations were "in clear violation of tenure/due process laws" and were reversed within eight days "by dumbfounded members of Rome Board of Education." (Id.). Tidd, Martinez and Adey were not part of this fired group of teachers. (Id. at ¶ 18). They were male and younger. (Id.).
Plaintiff alleges that her enrollments were not the reason for her terminations. (Id. at ¶ 19). In the 1988-1989 school year, for instance, she had 116 enrolled in the first semester and 113 in the second. (Id.). These enrollments were higher than those of three male technology teachers added together. (Id. at ¶ 22). These teachers did not lose their jobs because of low enrollments. (Id.). Indeed, her enrollments in that school year were "far higher than sixteen other male technology teachers[.]" (Id. at ¶ 21). None of these teachers lost their jobs. (Id.). Three received notices of termination, but all three were recalled in September 1989. (Id.). In all, 67 teachers were hired or recalled that year, all of them had "far less seniority than Plaintiff, " who did not get her job back. (Id.). In the end, Plaintiff ended up without a full-time position and without benefits, earning far less than the nine male teachers who did the same job. (Id. at ¶ 54). These teachers enjoyed continued employment in the Rome School District while Plaintiff suffered only discrimination, termination and retaliation. (Id. at ¶ 55).
Plaintiff participated in an arbitration hearing regarding her termination on December 14, 1989. (Id. at ¶ 24). She describes this hearing as "staged, " "a sham, " and "a dog and pony show[.]'" (Id.). The arbitration did not address wrongful termination or discrimination issues. (Id.). Plaintiff alleges that she was denied legal representation by NYSUT and the RTA. (Id.). Instead, she hired and paid an attorney, Elizabeth Gibbons, to represent her. (Id.). After Gibbons called Plaintiff to tell her that she had found a law that would advance Plaintiff's case, Gibbons was fired by her law firm. (Id.). Plaintiff contends that Rocco Deperno, a representative of the law firm, had called the NYSUT field representative, Doug Flynn, and that the two conspired to deny plaintiff a fair union representation. (Id.). The union refused to pay Plaintiff's attorney's fees, both for Gibbons' representation and in a lawsuit she filed in 1991. (Id.). Union officials would not support Plaintiff's case. Because the RTA and NYSUT refused to file a petition regarding her 1989 termination, Plaintiff herself filed a petition with Thomas Sobol, then-Commissioner of Education, in 1990. (Id. at ¶ 25).
Plaintiff filed a lawsuit alleging discrimination against the Rome City School District in 1991. (Id. at ¶ 26). The case was dismissed on summary judgment. (Id.). Plaintiff alleges that this dismissal was a result of the "deliberate bungling, attempted extortion, unprecedented legal malpractice [and] carefully-planned sabotage" of her attorney, Defendant Karen DeCrow. (Id.). The case got no publicity. (Id.).
Plaintiff herself filed a brief arguing against summary judgment to the presiding Judge, United States District Judge Neal P. McCurn. (Id. at ¶ 27). Before Judge McCurn made his ruling, Plaintiff informed him that she had discharged DeCrow because she had come to realize that DeCrow was "betraying her and sabotaging her lawsuit[.]" (Id. at ¶ 29). In essence, Plaintiff alleges, she had no legal representation. (Id.). Judge McCurn "returned" this legal memorandum to Plaintiff and, "ignoring numerous material facts which should have been litigated in a court of law" and the fact that Plaintiff was not represented, issued a summary judgment opinion that Plaintiffs allege was "invalid." (Id. at ¶ 30). Judge McCurn then allegedly "ignored" "numerous letters with exhibits" that Plaintiff sent him over a period of years attempting to revive the case. (Id. at ¶ 31).
Plaintiff filed a complaint against Judge McCurn with the United States Court of Appeals for the Second Circuit in January 2001. (Id. at ¶ 32). The Court of appeals dismissed that complaint, making no mention to the public. (Id.). On August 24, 2001, Judge McCurn returned all of Plaintiff's letters and issued a "gag order" to Plaintiff, informing the Rome School District as well. (Id. at ¶ 33). Plaintiff contends that such actions constituted "facilitating and condoning fraud upon the court, transparent injustice in shocking violation of the Code of Judicial Conduct, obstruction of justice, rules of evidence and crime reporting statutes." (Id.).
Plaintiff then sent a number of detailed letters and e-mails to members of the Judiciary Committee,  United States Supreme Court Justices and Supreme Court counsel, and the Judicial Conference of the United States. (Id. at ¶ 34). She in particular sent letters to Justice Ruth Bader Ginsburg, who oversees the Second Circuit. (Id.). Plaintiff sought to initiate impeachment proceedings against Judge McCurn, but was allegedly "ignored and disregarded." (Id.). Plaintiff asserts that these officials failed to "respond to Plaintiff's earnest good-faith pleas and holistically refused to get involved in a case of fraud upon the court[.]" (Id.). Plaintiff's repeated attempts to send complaints and exhibits regarding her lawyers' and the lawyers for the defendants' alleged fraud upon the court to the New York State Attorney Grievance Committees and The Lawyers Fund for Client Protection were likewise allegedly ignored. (Id.). Only Defendant Karen DeCrow received a letter of caution in her file. (Id. at ¶ 36). Plaintiff likewise filed complaints about her next attorney, Defendant Robert Julian for alleged fraud upon the court and malpractice, but those complaints were dismissed without an investigation. (Id.). Plaintiff also alleges that the New York State Attorney Grievance Committees in Syracuse and Albany refused to file complaints against the attorneys "secretly hired and paid by Rome District behind closed doors, " as well as the NYSUT attorneys who allegedly also engaged in fraud against the Plaintiff. (Id. at ¶ 37).
In April, 2008, Plaintiff filed an unfair labor practice claim against the Rome School District, RTA and NYSUT with the Public Employees Relations Board ("PERB") and with John J. Sweeney, President of the AFL-CIO. (Id. at ¶ 38). Despite a detailed brief that alleged "a continuing RICO pattern of lawlessness and numerous ongoing predicate acts of corruption by Defendants[, ]" Plaintiff's complaint was dismissed. (Id. at ¶¶ 39-40). Plaintiff alleges that Sweeney and PERB administrators covered up "an ongoing pattern of union discrimination, misrepresentation and a RICO pattern of institutional corruption." (Id. at ¶ 40).
This alleged refusal of public authorities to take action when confronted with Plaintiff's allegations of corruption and discrimination, Plaintiff asserts, has been ongoing since 1989 through various officials. (Id. at ¶¶ 41-46). Among those who ignored Plaintiff's complaints were members of the Rome Board of Education, the New York Division of Human Rights, the Equal Employment Opportunity Commission ("EEOC"), law enforcement officials, and government officials in New York and Washington, D.C. (Id. at ¶¶ 41-44). Plaintiff also alleges that state and federal judges ignored her repeated requests to intercede and assist her; some judges placed blocks on e-mails from Plaintiff, and one even threatened legal action against her. (Id. at ¶ 58). After Plaintiff filed numerous complaints with the Commission on Judicial Conduct, this body too blocked her e-mails. (Id. at ¶¶ 59, 61).
Complaints with New York State Attorney Grievance Committees led to similar results. (Id. at ¶ 61). "[D]aily emails" sent to New York County District Attorney Cyrus Vance, officials at the New York Prosecutors Training Institute, and the New York State Task Force on White Collar Crime from January 11, 2013 to March 16, 2013 lead to no action. (Id. at ¶ 62). A complaint filed on April 26, 2013 against several members of the Task Force was summarily dismissed on December 16, 2013. (Id. at ¶ 63). Plaintiff's FBI complaint did not lead to any investigation, though an official purporting to be from the FBI visited her home on November 1, 2012 about "hundreds" of emails allegedly sent by Plaintiff to the FBI in 2012; the official allegedly informed Plaintiff that her e-mails contained a "veiled threat." (Id. at ¶ 65).
Officials have also refused since 1989 to comply with Plaintiff's requests for public information concerning the discrimination she allegedly suffered. (Id. at ¶ 60). This "cover-up" allegedly continued beginning in 2006, when attorneys specializing in the Freedom of Information Act refused to provide Plaintiff with a written opinion on these alleged violations of her rights. (Id. at ¶ 47). Newspaper reporters and members of the press have also refused, Plaintiff contends, to publicize the discrimination she has suffered. (Id. at ¶¶ 48, 57).
In the end, Plaintiff alleges, she has been subjected to a 25-year journey "through the underbelly of the justice system, " discovering "a pervasive prevailing ignorance, the lack of a public forum and the lack of competent advocacy in civil rights issues throughout all three branches of government, throughout watchdog organizations, throughout women's rights advocates, throughout the legal community, throughout administrative agencies, throughout law enforcement offices, throughout the media, throughout organized labor, and throughout the public." (Id. at ¶ 53).
Plaintiffs filed a Complaint in this action on March 17, 2014. See dkt. #1. The Complaint alleges a 31-year pattern of lawlessness by the Defendants, who conspired to deny her a position and then retaliated against her for complaining about their actions. Plaintiffs contend that these actions violated Mary Lou Hilow's constitutional rights to equal protection and due process. Such actions, Plaintiffs contend, also constitute "an ongoing pattern of deliberate invidious discrimination, retaliation and blacklisting with the deliberate intention to harm Plaintiffs and their family and to continue an official policy of racketeering to deny Plaintiff her tenured teaching position, her livelihood, all rights and benefits including insurance for herself and her husband and her fair retirement pension with benefits, rights and insurance[.]" (Id. at ¶ 121). This enterprise also worked to defame Plaintiff, labeling her a "troublemaker, a loose canon and a disgruntled employee." (Id. at ¶ 156). Plaintiffs also allege a cover-up by officials who control records of her teaching career and others teaching in the Rome District. The Complaint alleges that her unions failed to provide her with fair representation and instead sided with the district in a labor dispute. (Id. at ¶ 143). Named as Defendants are the Rome City School District, the RTA, NYSUT, the law firm of Ferrara, Fiorenza, Larrison, Barett & Reitz, PC, Attorney Karen DeCrow, Attorney Robert Julian, James R. Sander, a former NYSUT attorney, and the Rome Sentinel Newspaper Company.
Defendants Rome Sentinel Newspaper Company, Robert Julian, RTA, NYSUT, and Karen DeCrow all filed motions to dismiss the Complaint. See dkt. ##s 10, 13, 14, and 17. Plaintiffs filed a response. See dkt. #24. Defendants Ferrara, Fiorenza, Barrett & Reitz, PC, and Rome City School District filed motions for summary judgment. See dkts. ##34, 55. Despite being given an extension of time to file a response to Defendants' summary judgment motions, Plaintiffs have not filed any response. See dkt. #57. The deadline for filing such a response has long since passed.
II. ANALYSIS-MOTIONS TO DISMISS
Several of the Defendants have filed motions to dismiss Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argue that Plaintiffs has not stated a claim upon which relief could be granted, even if all factual allegations in the complaint were proved true. In addressing such motions, the Court must accept "all factual allegations in the complaint as true, and draw all reasonable inferences in the plaintiff's favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id . (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)).
Each of the Defendants offer several grounds for granting their motion to dismiss. The Court will address each Defendants' motion in turn.
1. Motion of Rome Sentinel Company
Defendant Rome Sentinel Company, identified in the Complaint as Rome Sentinel Newspaper Company, seeks dismissal of the Complaint on various grounds. Defendant reads Plaintiffs' Complaint, which does not lay out separate causes of action but instead narrates conduct described as contrary to the law, to raise claims under three sources: (1) the Racketeer Influenced and Corrupt Organizations ("RICO") statute; (2) discrimination by the newspaper in writing articles about employment discrimination but not including Mary Lou Hilow's experience; and (3) common law fraudulent conspiracy and aiding and abetting. Plaintiffs do not appear to dispute that they raise those claims, though they contend that other statues apply for other Defendants.
i. Duty to Publish
First, Defendant argues as a general matter that the gravamen of Plaintiffs' Complaint against the company is an allegation that the newspaper refused to publish details about Plaintiff Mary Lou Hilow's employment and litigation history with the Defendant School District, and that this failure to publish somehow violated Plaintiffs' rights. Defendants argue that First Amendment law prohibits a Court from compelling a publisher to disseminate particular information, and that the relief that Plaintiffs seek-an "admonishment" against censorship against the newspaper for failing to publish details of the case and an order compelling publication in the future-is unavailable in this forum. Plaintiffs respond that failing to report their allegations violates crime reporting and obstruction of justice statutes, that the newspaper has become part of a criminal conspiracy by concealing accounts of lawlessness, and that the press has a responsibility to the public to report lawlessness.
The Court will grant the motion on this basis. Plaintiffs seek to predicate liability for the newspaper defendant on the newspaper's failure to publish stories that Plaintiffs find important. Plaintiffs' Complaint mentions the Defendant Newspaper in paragraph 26, which alleges that the Rome Daily Sentinel publicized allegations of sexual harassment against a principal in 1999, but did not mention her 1991 lawsuit against the School District. (Complt. at ¶ 26). Likewise, the newspaper published information on a "notice of claim" filed by another teacher in 2013, but "repeatedly refused for over 17 years to publicize Plaintiffs' story." (Id. at ¶ 48). Plaintiffs also allege that Plaintiff, presumably Mary Lou Hilow, "continually wrote numerous members of the media including Daily Sentinel President/Publisher Stephen B. Water in October 2004" to inform them about "flaws in the legal system." (Id. at ¶ 57). These correspondents "disregarded and ignored" her letters. (Id.). This failure to publish, Plaintiffs contend, was part of a pattern of "concealment and coverup, " a "refus[al] to expose transparent injustice" and the "urgent need for common sense reform" in the justice system. (Id.). In the end, Plaintiffs allege, "[i]n refusing to tell Plaintiff's story to the public, members of the media including controlling officers and reports of Rome Daily Sentinel who were continually contacted by the Plaintiff have conspired to engage in concealment and cover-up." (Id. at ¶ 156). In short, Plaintiff's complaint against the Defendant Newspaper Company is that the Company refused to print stories about Plaintiff Mary Lou Hilow's treatment and the corruption she alleges pervades the New York education and justice systems, despite her entreaties.
Such allegations do not amount to any violation of Plaintiff's rights that could be compensated in this Court. The Supreme Court has found that a Court's order to a newspaper to include particular content violates the First Amendment because "[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials-whether fair or unfair-constitute the exercise of editorial control and judgment." Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 (1974). The Second Circuit cited to this principle in addressing a First Amendment and RICO claim brought by a teacher who "went to the reception area at one of [the] A[ssociated] P[ress]'s offices... to deliver information about an alleged racketeering and conspiracy scheme" involving "the New York City Board of Education, the United Federation of Teachers, and the New York City Corporation Counsel." Newman v. AP, No. 96-7176, 1996 U.S.App. LEXIS 27141 at *2 (2d Cir. Oct. 15, 1996). The AP refused to publish her information and Plaintiff sued, alleging a First Amendment violation. Id. at *3. In affirming dismissal, the Court found that "[t]he First Amendment does not guarantee publication of personal views upon demand." Id . Plaintiffs therefore cannot make out a claim based on the newspaper's decision not to publish information about Mary Lou ...