10-4989-cvl - nylawyer.nylj.comnylawyer.nylj.com/adgifs/decisions/021012teachers.pdf ·...

10-4989-cv(L), 11-0047-cv(CON)

United States Court of Appeals for the

Second Circuit

MICHAEL EBEWO, JOANNE HART, JULIANNE POLITO, THOMASINA ROBINSON, BRANDI SCHEINER,

Plaintiffs-Appellants,

TWANA ADAMS, MING BELL, DAVID BERKOWITZ, JONATHAN BERLYNE, ANTHONY CAMINITI, JAIME CASTRO, GLORIA CHAVEZ,

JOSEPHINA CRUZ, JAMES CULLEN, DIANE DANIELS, LOUISA GANIS,

(For Continuation of Caption See Inside Cover) _______________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF AND SPECIAL APPENDIX FOR PLAINTIFFS-APPELLANTS MICHAEL EBEWO, JOANNE HART,

JULIANNE POLITO, THOMASINA ROBINSON AND BRANDI SCHEINER

LAW OFFICES OF

NICHOLAS A. PENKOVSKY, PC Attorneys for Plaintiffs-Appellants

Michael Ebewo, Joanne Hart, Julianne Polito, Thomasina Robinson and Brandi Scheiner

314 West 231st Street, Suite 436 Riverdale, New York 10463 (347) 603-7676

Case: 10-4989 Document: 106 Page: 1 04/08/2011 258411 102

ROSELYNE GISORS, LISA HAYES, MICHAEL HOLLANDER, ELEANOR

JOHNSON, JANE LEVINE, HAZEL MARTINEZ, MICHAEL MCLOUGHLIN, RAYMOND NUNGE, ALENA RADKE-GABRIEL, DENISE RUSSO, PAUL

SANTUCCI, JENNIFER SAUNDERS, JACQUELINE SAWYER, ALEX SCHREIBER, ALAN SCHLESINGER, BARBARA SEGALL, LINDA SEIFFERT, DANIEL SMITH, GILDA TEEL, EUSTOGIO TORRES-

NOGUERAS, JACQUELINE WADE, MICHAEL WESTBAY, GEORGE ZANETIS, MAURICIO ZAPATA, OLGA BATYREVA,

Plaintiffs, – v. –

NEW YORK STATE EDUCATION DEPARTMENT, A division/organ of the State of New York, RICHARD MILLS, Commissioner of Education,

TEACHER TENURE HEARING UNIT, DEBORAH A. MARRIOTT, Manager, MICHAEL BLOOMBERG, CITY OF NEW YORK, NEW YORK

CITY DEPARTMENT OF EDUCATION, JOEL KLEIN, DAVID M. STEINER, Commissioner of Education,

Defendants-Appellees,

MARYANN FAIRMAN, Supervisor, DOUGLAS BANTLE, STUART BAUCHNER, ALAN BERG, MARY CRANGLE, HOWARD EDELMAN, DEBORAH M. GAINES, JOSHUA JAVITZ, ERIC LAWSON, ANDREE MCKISSICK, RANDI LOWITT, EARL PFEFFER, ARTHUR RIEGEL,

MARTIN SCHEINMAN, JACK TILLEM, BONNIE SILBER-WEINSTOCK, PAUL ZONDERMAN, ELEANOR M. GLANSTEIN,

Defendants.


TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUBJECT MATTER AND APPELLATE JURISDICTION . . . . . . . . . . . . . . . . . 1

ISSUES FOR REVIEW ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

COMMON FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

FACTS PERTAINING TO INDIVIDUAL APPELLANTS . . . . . . . . . . . . . . . . 11

MICHAEL EBEWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

JOANN HART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

JULIANNE POLITO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

THOMASINA ROBINSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

BRANDI SCHEINER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27


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1. PLAINTIFFS-APPELLANTS HAVE WELL-ESTABLISHED PROPERTY INTERESTS IN THEIR TENURED TEACHING POSITIONS, THEIR TEACHING LICENSES AND THEIR JOB DUTIES UNDERTHE UNITED STATES CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . 27

A. The Nature of the Numerous Protected Property Interests At Stake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

B. The District Court Erred by Holding That the Only Protected Property Interest is Plaintiffs-Appellants’ Base Salaries . . . . . . . . . . . . . . . . . . . . . . . 30

2. PLAINTIFFS-APPELLANTS HAVE ADEQUATELY STATED A CLAIM FOR VIOLATION OF PROCEDURAL DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

A. Plaintiffs-Appellants Adequately Pleaded Causes of Action for Deprivation of their Procedural Due Process Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

B. A Prompt Due Process Hearing Is Required Because Plaintiffs-Appellants Have Been Deprived of a Protected Property Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

C. The District Court Erred When It Held That a State Law Article 78 Provides Adequate Relief for Plaintiffs-Appellants’ Constitutional Claims . . . . . . . . . . 43

3. THE DISTRICT COURT ERRED WHEN IT DISMISSED MS. POLITO’S SEVENTH AND EIGHTH CAUSES OF ACTION AS BARRED BY THE STATUTE OF LIMITATIONS . . . 45

4. THE PLAINTIFFS-APPELLANTS ALLEGED A CAUSE OF ACTION FOR DEPRIVATION OF THEIR LIBERTY INTERESTS WHEN THE MUNICIPALITY AND ITS SCHOOL DISTRICT


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PLACED APPELLANTS ON THE INELIGIBLE/INQUIRY LIST THEM FROM THE USE OF THEIR STATE TEACHING LICENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

5. PLAINTIFFS-APPELLANTS HAVE PLEADED CAUSES OF ACTION FOR VIOLATION OF DUE PROCESS AND EQUAL PROTECTION RIGHTS BASED UPON AN UNLAWFUL STATUTORY SCHEME THAT LIMITS THEIR TIME TO APPEAL AN ADVERSE DECISION IN A DUE PROCESS HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

6. PLAINTIFFS-APPELLANTS MS. POLITO AND MS. ROBINSON ADEQUATELY STATED INDIVIDUAL CAUSES OF ACTION FOR FIRST AMENDMENT RETALIATION AND SPOKE AS CITIZENS ON A MATTER OF PUBLIC CONCERN WHEN THEY SPOKE OUT ABOUT FALSIFICATION OF STUDENT RECORDS . . . . . . . . . 49

7. THE DISTRICT COURT ERRED BY DISMISSING PLAINTIFFS-APPELLANTS’ CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION BY REQUIRING A HEIGHTENED PLEADING STANDARD AND MISINTERPRETING RELEVANT LAW . . . . . . . . . . . . . . . . . . . . . . . . . 53

Allegations pleaded “upon information and belief” are permissible . . . . . 53

Piggy Back or Single Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Age Discrimination Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Race and National Origin Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Polito’s Discrimination Claims Should Be Reinstated . . . . . . . . . . . . . . . . 58

Hostile Work Environment Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59


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8. THE DISTRICT COURT ERRED BY DENYING PLAINTIFFS-APPELLANTS’ REQUEST FOR LEAVE TO AMEND THEIR COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . 59

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60


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TABLE OF AUTHORITIES

Arista Records, LLC v. Doe 3, 604 F.3d. 110, 120 (2d Cir. 2010) . . . . . . . . . .4, 53

ATSI Commc’n, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) . . . . . .4

Barry v. Barchi, 443 U.S. 55 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . 4

Board of Regents v. Roth, 408 U.S. at 577, 92 S. Ct. at 2709 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir.2008). . . . . . . . . . . . . . . . . . . 54-55

Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Burkybile v. Bd. of Educ. of the Hastings-on Hudson U.F.S.D., 411 F.3d 306, 311 (2d. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Cain v. McQueen, 580F.2d 1001 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . 39

Cioffi III v. Averill Park Central Sch. Dist. Board of Ed., 444 F.3d 158, 162 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . 49, 51, 52

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985) . . . . . . . . . . . . . . . . . . . . . . 28, 35, 48

Connick v. Meyer, 461 U.S. 138, 146-148, 103 S.Ct. 1684 (1983) . . . . . . . . . . . 52

Delong v. U.S., 621 F.2d 618 (4 Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 34

DeMichele v. Greenburgh Central School Dist. No. 7, 167 F.3d 784, 789 (2d Cir 1999) . . . . . . . . . . . . . . . . . . . . . . 28

Fincher v. Depository Trust and Clearing Corp.,


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604 F.3d 712 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Garcetti v. Ceballos, 547 U.S. 410 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Geller v. Markham, 635 F.2d 1027, 1031 (2d Cir. 1980), cert denied 451 U.S. 945, 101 S.Ct. 2028 (1981) . . . . . . . . . . . . . . . . . . . . 57

Harris v. Forklift Systems, 510 U.S.17, 21-22 (1993) . . . . . . . . . . . . . . . . . . . . . . .

Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct 1701 (1993) . . . . . . . . . . . 58

Hellenic American Neighborhood Action Comm. v. City of New York, 101 F.3d. 877, 880 (2d Cir. 1996) . . . . . . . . . . . 44

Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009). . . . . . . . . . . . . . . . . . 4, 59

Holowecki v. Federal Exp. Corp., 440 F.3d 558 (2d Cir. 2006) . . . . . . . . . . . . . 58

Jerry v. Bd. of Ed. of City of Syracuse, 35 N.Y.2d 534, 544, 364 N.Y.3.2d 440, 447 (1974) . . . . . . 45

Karpova v. Snow, 473 F.3d 262, 270 (2d Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . 35

Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . 40, 44

Kuck v. Danaher, 600 F.3d 159 (2d Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 34

Ludovicy v. Dunkirk Radiator Corp., 922 F.2d 109, 111 (2d Cir. 1990) . . . . . . . 58

Matthews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902 (1976) . . . . 11, 35, 36

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Meacham v. Knolls Atomic Power Laboratory,


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554 U.S. 84, 128 S.Ct. 2395 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Muller v. First Unum Insurance Co., 341 F.3d.119, 124 (2d Cir. 2003) . . . . . . .25

O’Connor v. Pierson, 426 F.3d 187, 199 (2d Cir. 2005) . . . . . . . . . . . . .10, 30, 31

O’Neill v. City of Auburn, 23 F.3d 685, 691 (2d Cir.1994) . . . . . . . . . . . . . .46, 47

Parrett v. City of Connersville, 737F.2d 690 (7th Cir. 1984) . . . . . . . . . . . 30 - 34

Palkovic v. Johnson, 281 Fed.Appx. 62 (2d Cir. 2008) . . . . . . . . . . . . . . . . . . . . 42

Perry v. Sindermann, 408 U.S. 593, 602-03, 92 S.Ct. 2694 (1972) . . . . . . . . . . . 28

Pickering v. Bd. of Education of Township High School District 205, Will County, Illinois, 391, U.S. 563 (1968) . . . . . . . . . . . . . . . . . . . . 50

R.S. v. Board of Educ. of Hastings-On-Hudson Union Free School Dist., 371 Fed.Appx. 231, 233 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 58

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097 (2000). . . . . . . . . . . . . . . . . . . . 54

Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006) . . . . . . . . . . 53

Snyder v. Phelps, U.S. , 131 S.Ct. 1207, 1220 (2011) . . . . . . . . . . . . . . . . 52

Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . 52

Spinelli v. City of New York, 579 F.3d 160 (2d. Cir 2009) . . . . . . . . . . . . . . . . . . 39

Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 1052 (2002) . . . . . . . . . . . . . . . . . . .4, 53

Teachers4Action et al v Bloomberg, 08-CV-0548 (VM)(AJP) . . . . . . . . . . . . .7, 8

Tolliver v. Xerox Corp., 918 F.2d 1052, 1058 (2d Cir. 1990) . . . . . . . . . . . . . . . 56


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Weintraub v. Board of Education of the City School District of the City of New York, 593 F.3d 196 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

United States Constitution

U.S. Const. Amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Statutes

28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 U.S.C. §1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 U.S.C. § 621, et seq. 42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 U.S.C. § 2000-e, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

NYS CPLR 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48NYS CPLR Article 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47NYS CPLR 7511 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48NYS CPLR Article 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45NYS Education Law § 2590-j . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6NYS Education Law § 3020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27, 47NYS Education Law § 3020-a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 27

Treatises

Constitutional Law 8 Ed., § 13.8(i), th

pp. 692-693, Nowak and Rotunda . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 49

Federal Practice & Procedure, Civ. (3d ed.), Vol. 6A, § 1497, Wright, Miller, Kane, and Marcus . . . . . . . . . . . . . . . . 45


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Law Reviews

Chemerinsky, Erwin, The Future of the First Amendment, 46 Willamette L. Rev. 623, 627 (2010) . . . . . . . . . . . . . . . . . 51


PRELIMINARY STATEMENT

This is an appeal by plaintiffs-appellants Michael Ebewo, Joann Hart,

Julianne Polito, Thomasina Robinson, and Brandi Scheiner from the judgment

(SPA-24 to SPA-25) entered pursuant to the Opinion and Order of the Honorable

Victor Marrero of the United States District Court for the Southern District of

New York dated November 18, 2010 (“Decision”) (SPA-1 to SPA-23) that

adopted the Report and Recommendation of Magistrate Judge Andrew J. Peck

dated August 23, 2010 (“R&R”).A-1291 to A-1377. Plaintiffs-appellants

timely filed their Objections to the R&R dated August 23, 2010. A-1377 to 1405.

SUBJECT MATTER AND APPELLATE JURISDICTION

Plaintiffs-appellants alleged claims for declaratory, injunctive, and other

equitable relief, as well as monetary damages pursuant to 42 U.S.C. §§1981, 1983,

and 1988, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e, et seq.,

and the Federal Age Discrimination in Employment Act as amended (“ADEA”),

codified at 29 U.S.C. §621, et seq. against defendants and respondents the New

York State Education Department, (“NYSED”), Richard Mills, Former

Commissioner of Education, David M. Steiner, Commissioner of Education, City

of New York (“City”), Teacher Tenure Hiring Unit, Deborah A. Marriott,

Manager, New York City Department of Education (“DOE”), Michael Bloomberg,

Mayor of the City of New York, and Joel Klein, DOE’s Chancellor. A-1142 to A-


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1267. The trial court had jurisdiction pursuant to 28 U.S.C. §1331 and §1343.

The trial court granted defendants’ motions to dismiss the Fourth Amended

Complaint (“FAC”) on November 30, 2010. Plaintiffs timely filed their Notice of

Appeal. A-1406 to A-1407. Accordingly, this Court has appellate jurisdiction

pursuant to 28 U.S.C. §1291.

ISSUES FOR REVIEW ON APPEAL

1. Whether plaintiffs-appellants have protected Due Process Property

interests in their state issued teaching licenses, their tenured teaching positions,

and all the emoluments and benefits thereto.

2. Whether plaintiffs-appellants are entitled to Due Process hearings in a

“meaningful time and in a meaningful manner” after being suspended from their

tenured teaching assignments with no duties and only being paid their base salary.

3. Whether plaintiff-appellant Ms. Polito filed her claims of Due Process

violations harms pursuant to the United States Constitution’s Fourteenth

Amendment and 42 U.S.C. § 1983 within the three year statute of limitations.

4. Whether plaintiffs-appellants alleged a cause of action for deprivation

of their liberty interests under the United States Constitution’s Fourteenth

Amendment and 42 U.S.C. § 1983 when government actors place them on the

Ineligible/Inquiry List based upon unproven charges and thereby prevent them


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from the use of their state issued teaching licenses.

5. Whether New York State Education Law § 3020-a(5), which by

N.Y.S. CPLR Article 75 provides a ten day statute of limitations to appeal an

adverse Section 3020-a hearing, denies plaintiffs-appellants Equal Protection

under the law or their procedural Due Process rights pursuant to the United States

Constitution’s Fourteenth Amendment and 42 U.S.C. § 1983 when other Article

75 appellants are have ninety days for an appeal, and appellants of other New

York State administrative adjudications have a four month statute of limitations.

6. Whether plaintiffs-appellants Ms. Polito and Ms. Robinson stated

causes of action for First Amendment Retaliation when they spoke to DOE

administrators and investigators about falsification of student records.

7. Whether plaintiffs-appellants adequately stated causes of action for

employment discrimination.

8. Whether the District Court erred by denying appellants’ request for

leave to amend their complaint and to replead viable causes of action.

STANDARD OF REVIEW

An order dismissing a complaint for failure to state a cause of action under

Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. The Court must

“accept[] all factual allegations in the complaint and draw[] all reasonable


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references in plaintiff’s favor. ATSI Commc’n, Inc. v. Shaar Fund, Ltd., 493 F.3d

87, 98 (2d Cir. 2007). The complaint must plead “enough facts to state a claim to

relief that is plausible on its face”. Bell Atlantic Corp. v. Twombly, 550 U.S.

544,127 S.Ct. 1955, 1974 (2007), taking as true all allegations in the complaint,

and drawing all reasonable inferences therefrom in the opponent's favor. Dismissal

may be granted only if it appears beyond doubt that the plaintiffs can prove no set

of facts in support of their his claim that would entitle them to relief. The

complaint must be read in a light most favorable to the plaintiffs, and all factual

allegations accepted as true. Id.

A plaintiff may allege facts upon information and belief where the facts are

peculiarly within the possession of the defendant. Arista Records, LLC v. Doe 3,

604 F.3d. 110, 120 (2d Cir. 2010)(Citations omitted). “[A]t the pleading stage an

employment discrimination plaintiff who alleges facts that provide fair notice of

the claim need not also allege specific facts establishing a prima facie case.” Id.

(Citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 1052

(2002). A denial of leave to replead “is reviewed for abuse of discretion”. Holmes

v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009).

STATEMENT OF THE CASE

Plaintiffs-appellants Mr. Ebewo, Ms. Hart, Ms. Polito, Ms. Robinson, and


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Ms. Scheiner are all licensed and tenured teachers in the New York City Public

School system. All are employed by the City and all are over forty years of age.

Beginning in 2006, each of the plaintiffs-appellants was systematically

suspended and removed from their classroom teaching positions in their respective

schools. After years of exemplary service, each was suddenly alleged to have

committed some form of misconduct, or deemed by their school’s principals to be

incompetent teachers. Upon suspension each was reassigned to Temporary

Reassignment Centers (“TRCs”). The TRCs are popularly referred to in the media,

and among educators, politicians, and the public as “Rubber Rooms”.

Upon being suspended, the City and DOE also placed each of the plaintiffs-

appellants on its Ineligible/Inquiry List. As a result of this placement, plaintiffs-

appellants are barred from teaching assignments not only in the State and City of

New York, but also other jurisdictions. This bar on licensed teaching employment

occurs because City and DOE report to potential employers who inquire, that the

plaintiff-appellant is suspended, ineligible for assignment and under inquiry.

During the time at issue in this lawsuit, the City and DOE assigned

thousands of tenured City Public School teachers to TRCs throughout the five

boroughs. Plaintiffs-appellants soon discovered that the teachers assigned to the

TRCs were, by a vast majority, older tenured teachers. Plaintiffs-appellants also


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noted that the representation of Black, Hispanic, and other minority men and

women teachers in the TRCs were in numbers beyond their proportionate

representation of City Public School teachers.

In the TRCs plaintiffs-appellants were not given any teaching or any other

work assignments. In the TRCs they anxiously awaited their respective due

process hearings that are required to be held for suspended tenured teachers

pursuant to New York State Education Law § 2590-j, §3020 and § 3020-a. The

New York State Commissioner of Education establishes rules and procedures for

the conduct of § 3020-a hearings. N.Y.S. Ed. L.§ 3020-a(c)(I). The Commissioner

is also required to set the time for hearings and arrange for an arbitrator (also

known as a Hearing Officer) once charges are brought against a tenured teacher

who wishes to defend against the charges. Id. The City and DOE are required to

bring charges against the tenured teacher and inform the State Commissioner of

Education of the tenured teachers request for a name clearing hearing.

Plaintiffs-appellants waited for extended periods of time for City and DOE

to bring charges against them and then for a hearing. Each had been sent to a TRC

only after a preliminary investigation by their principals who determined that

allegations, whether of misconduct or incompetence were founded. Once

allegations were preliminarily founded, the respective plaintiff-appellant was


-7-

suspended from teaching assignments, placed on the Ineligible/Inquiry List, and

they could not use their teaching licenses until the allegations were dropped or

converted into charges to be heard at a due process hearing commenced at the

direction of the State Education Commissioner. Prior to suspension, the tenured

teacher is afforded an opportunity to attend a disciplinary conference conducted by

the principal in which the teacher is afforded the opportunity to view evidence

against the teacher and provide a defense.

During their time in the TRCs, plaintiffs-appellants joined with numerous

other tenured teachers in TRCs to file a lawsuit seeking relief from delayed due

process hearings and the horrific conditions in the TRCs that constituted a hostile

work environment. A-417.1 to A-417.33. That suit, Teachers4Action v.

Bloomberg, et. al., Case No. 08 CV 548 (S.D.N.Y.) A-601 to A-652 was

discontinued. A-650, A-651. Prior to discontinuance, plaintiffs-appellants had

sought to sever their claims from the claims of other plaintiffs in order to render

the case manageable and to pursue their similar claims together. A-647.

That request was denied. The Magistrate ruled that plaintiffs-appellants

could discontinue Teachers4Action and commence a new lawsuit with all the same

causes of action as initiated in Teachers4Action. Plaintiffs-appellants then

commenced this lawsuit. A-239 to A-243; A-417.1 to A-417.33.


-8-

However, prior to plaintiffs-appellants being allowed to proceed with their

lawsuit several unfortunate events occurred. After filing an Amended Complaint

their attorney was disbarred. The City moved for Fed. R. Civ. P. 41 sanctions for

the plaintiffs-appellants’ discontinuing Teachers4Action and commencing a new

lawsuit on the same facts and circumstances. A-237to A-244, A-214 to A-234.

Sanctions were awarded and plaintiffs-appellants paid the sanction In August

2009. A-437 to A-517. During the time they were pro se they also filed a Second

Amended Complaint (“SAC”). A-95 to A-211. The Magistrate ordered defendants

to serve answers to the SAC and also move to dismiss the suit. A-235 to A-238.

In September 2009, Plaintiffs-appellants retained new counsel who

requested leave to serve a Third Amended Complaint (“TAC”) after deeming the

SAC inadequate. A-864 to A-870. The Magistrate denied the request A-871 to A-

873. The SAC was dismissed on the recommendation of the Report and

Recommendation in reliance on Iqbal. A-1004 to A- 1092. However, the District

Judge granted leave for plaintiffs-appellants to file and serve a Third Amended

Complaint within thirty days. A-1125 to A-1136.

Plaintiffs-appellants filed and served a Third Amended Complaint.

Plaintiffs-appellants and their co-plaintiffs asserted thirty-two causes of action

based upon their suspensions, their assignments to TRCs and defendants not


This cause of action was asserted by Ms. Adams, Ms. Polito, and Ms. Robinson. Ms.1

Adams represented by other counsel did not appeal the dismissal of her lawsuit.

-9-

affording them timely name-clearing hearings required for their returning to work

or to use their teaching licenses, which had been suspended for years. The causes

of action asserted were based upon plaintiff-appellants’ experiences and

observations in their respective schools TRCs.

Plaintiffs-appellants asserted cases of action violation of their due process

and equal protection rights, violation of liberty interests, unlawful retaliation of

First Amendment rights to speak on issues of public concern , and various causes1

of action for employment discrimination under Title VII, the ADEA, the

Fourteenth Amendment’s protection against Age, Gender, Race, and National

Origin Discrimination, and for Hostile Work Environment.

On May 13, 2010, the Magistrate wanted the complaint to more clearly

reflect the defendants in each cause of action and this was timely completed and a

Fourth Amended Complaint [Corrected] (“FAC”) was filed. A-1140, A-1141. All

defendants promptly moved to dismiss the FAC pursuant to Fed R. Civ. P.

12(b)(1) and (6). Plaintiffs opposed the motions which had been referred to the

Magistrate for a Report and Recommendation. A-1271 to A-1278, A-1279.

On August 23, 2010, the Magistrate issued a Report and Recommendation


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(“R&R”) recommending dismissal of the FAC pursuant to Fed. R. Civ. P. 12(b)(6)

without leave to amend. A-1291 to 1376. Plaintiffs-appellants timely filed

Objections. A-1377 to 1405. On November 18, 2010, the District Judge adopted

the entirety of the R&R and added additional grounds to dismiss the First

Amendment Retaliation Claims and Due Process Claims. SPA-1 to SPA-23.

The order dismissing the FAC must be reversed. Plaintiffs-appellants

adequately pleaded facts in the FAC as to each of their respective causes of action.

The decision engaged in impermissible fact finding and did not follow the correct

standard of review on a Fed. R. Civ. P. 12(b)(6) motion, in construing facts against

non-movant plaintiffs-appellants, and it failed to follow this Circuit’s precedents

on protected property interests and Due Process hearings.

The order dismissing the FAC must be reversed because there are ample

facts pleaded based upon plaintiff-appellants own experiences and based upon the

information they learned during their confinements to TRCs to lawfully plead facts

based upon information and belief.

The order dismissing the due process claims must be reversed. It failed to

recognize a protected property interest was violated by long term assignment to a

TRC (O’Connor v. Pierson, 426 F.3d 187, 199 (2d Cir. 2005)) and that “the

fundamental requirement of due process is the opportunity to be heard at a


-11-

meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S.

319, 333, 96 S.Ct. 893, 902 (1976)..

The order dismissing the First Amendment Retaliation claims must also be

dismissed because it incorrectly substituted its determination of plaintiff-

appellants’ job duties without recourse to any record before it and it

STATEMENT OF THE FACTS

COMMON FACTS

Plaintiffs are tenured teachers employed by City and assigned to teach in

the public schools operated by DOE. A-1143. Each is licensed by the New York

State as teachers and qualified to teach in the City Public School System. All are

employees within the meaning of Section 630(f) of the ADEA. A-1146, A-1147.

Each has been removed from their teaching assignments and assigned to a TRC for

extraordinary periods of time. While in the TRC each has not had any duties

except for the requirement to report and sit during school hours. In the TRCs

plaintiffs-appellants have been subjected to a hostile work environment and

DOE’s imposition of arbitrary rules and regulations promulgated in breach of

plaintiffs’ Collective Bargaining Agreement (“CBA”) with the City. A-1143.

FACTS PERTAINING TO THE INDIVIDUAL PLAINTIFFS

MICHAEL EBEWO is employed by DOE as a Special Education


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classroom teacher and has worked for DOE from September 1990 until June 1992,

and then from September 1996 to the present. He has taught for 33 years at the

High School, Middle School, Elementary School and College levels in the United

States and Nigeria. He was born in Nigeria, is a Black Man over forty years of age,

and a naturalized United States citizen. A-1145. During his years of service Mr.

Ebewo’s record was unblemished and he had always received the highest ratings

for his performance. This changed in or about September 2004 when his school’s

new Principal made false, spurious and unfounded allegations against him of

incompetency and inability to control his classroom. A campaign of harassment

continued throughout the academic years 2004-2005 and 2006 -2007 and into

October 2007. A-1159. Mr. Ebewo has a Nigerian accent, but his diction and

speech are clear and understandable. However, his principal continually harangued

him about his accent but never mentioned this criticism in any written Observation

Report or Performance Review. A-1239. The administration refused to assist him

with disciplining unruly and misbehaving students and rewarded them with treats

of soda and cookies and encouraged their misbehavior by telling them that Mr.

Ebewo would be fired and removed from their classroom. On one occasion,

students beat and robbed him in his classroom and the Principal refused to assist

him or call the police. A-1159.


-13-

The principal prepared a series of untruthful Observation Reports and

encouraged other DOE employees to do the same, all remove Mr. Ebewo from his

tenured teaching position. A-1159. These untruthful Observation Reports formed

the basis for two consecutive years of Unsatisfactory Annual Performance

Reviews resulting in his being removed from his tenured classroom assignment in

September 2007 and his being replaced by a junior employee and being assigned a

day-to-day substitute teaching position. A-1159, A-1160.

In October 2007, Mr. Ebewo was told to immediately leave the school’s

premises and to leave all of his personal and professional property behind,

including his lesson plans and other items he used in his teaching position. When

he was permitted to return to the school to retrieve his property, it all was gone

and his Principal told him that she had directed staff to throw it into the garbage.

A-1159, A-1160. Mr. Ebewo was reassigned to a TRC and was placed on the

Ineligible/Inquiry List making him ineligible to work as a teacher. He has lost

wages, pension benefits, and professional development opportunities. A-1161.

In March 2008, NYSED filed formal charges against him pursuant to New

York State Education Law based upon DOE’s tainted Annual Performance

Reviews. He requested a formal hearing pursuant to state statute to challenge the

charges In December 2009, more than two years after being suspended from his


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teaching job and reassigned to a TRC, Mr. Ebewo’s administrative hearing to

clear his name and reputation, and seek reinstatement was commenced. At the time

of filing the FAC he remained in a TRC. A-1161, A-1162.

JOANN HART is employed by DOE as a Special Education Classroom

Teacher. She has worked for DOE since March 1977 as Special Education

classroom teacher. Id. She is a white woman over forty years of age. A-1145.

Ms. Hart has enjoyed an unblemished teaching career receiving the highest

ratings for her performance. A-1169. In 2006 she was working as a Special

Education Individualized Education Plan (“IEP”) teacher which involved her in

determinations as to those students who needed academic intervention services

prior to their receiving an IEP. A-1165. In May 2006 DOE falsely alleged that Ms.

Hart committed corporal punishment upon a child in her school and commenced

an investigation. Ms. Hart alleges that DOE falsely charged her, suspended her

from her job, removed her from her school, assigned her to a TRC, and placed her

name on the Ineligible/Inquiry List making her ineligible to work as a teacher. As

a result, she lost wages, pension benefits, and professional development

opportunities. A-1166.

In November 2006, after being in a TRC for approximately six months,

DOE through NYSED finally filed formal charges against her. In or about April


-15-

2007, eleven months after Ms. Hart was suspended from her tenured teaching job

DOE and NYSED commenced Hart’s due process hearing. After her hearing she

was exonerated of the charges against her. However, the Hearing Officer fined her

in order “send a message” and to preclude her from returning to her tenured

teaching position. Afer being exonerated, Ms. Hart remained in a TRC and in

April 2008 she was not returned to her job as a tenured teacher as required but

instead became an Absent Teacher Reserve (“ATR”) which requires her to seek a

new teaching position with DOE. A-1165 to A-1167.

JULIANNE POLITO has been employed by DOE as a Special Education

classroom teacher and an administrator with a total of 21 years experience as a

teacher and an administrator. She is a white woman over forty years of age. A-

1145 to A-1146. Ms. Polito asserts causes of action arising from the times when

Polito was an Administrator (A-1171 to A-1178) and subsequent demotion to a

teaching position (A-1178 to A-1191). She was a tenured administrator and an

innovative manager of middle schools and special education programs and won

grants for her programs in DOE schools. A-1171. As a result of her years planning

reform initiatives for District 1 Middle Schools and submitting proposals to DOE,

DOE rewarded her by allowing her to found and open a DOE Middle School,

named Technology Arts & Sciences Studios (“TASS”). TASS opened in


-16-

September 2005. As TASS’s founder and Interim Acting Principal, Ms. Polito had

an established entitlement to seek a permanent appointment as Principal of TASS

for the ensuing academic years. A-1171, A-1172.

Ms. Polito enjoyed an unblemished teaching and administrative career

receiving the highest ratings for her performance. However, in January 2006 the

District’s Learning Instructional Superintendent and DOE Employee Alexis

Penzel, with the cooperation of other employees of DOE, falsely alleged that

Polito committed numerous acts of misconduct and impropriety. Ms. Penzel

enlisted the cooperation of parents and students to support these false, spurious,

and unfounded allegations against Ms. Polito, including, (1) failing to follow

procedures when a student was allegedly assaulted, when in fact, she consulted

with the Regions’ Head of Safety to assure compliance with all reporting

requirements of the incident to DOE, New York City Police Department, and the

parents of the children involved; (2) charging Ms. Polito with being a racist for her

calling a community meeting to stop gang related activity in TASS; (3) accusing

Ms. Polito of committing “corporal punishment” by requiring students to write in

their journals to explore their motivations for hitting each other instead of their

choosing to talk through their differences with each other; and (4) committing

other acts of misconduct and impropriety for failure to follow policies that Ms.


On this single occasion, Polito was reassigned to alternative duties in conformity with2

her skills and not to what are known as TRCs.

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Polito was not required to implement. A-1173 to A1176.

The false allegations led DOE to investigate of Ms. Polito and suspended

her from her job as Interim Acting Principal, removed her from her school and her

administrative duties, reassigned her to a position within the District offices , and2

placed her name on the Ineligible/Inquiry List making her ineligible to work as an

administrator or teacher and resulting in lost wages, pension benefits, and

professional development opportunities. A-1174. She never had a hearing on any

of these allegations and in May 2006 lost her right to seek continued employment

as TASS’s principal and was demoted to a teaching position. A-1174 to A-1175.

In September 2006 DOE hired Ms. Polito as a 6 Grade English teacher in ath

Middle School in West Harlem whereupon Ms. Polito’s Principal enlisted the

cooperation of students to falsely allege that Ms. Polito committed two acts of

corporal punishment of a student in October 2006.. Polito was suspended from

teaching, assigned to a TRC, and her principal and DOE commenced an

investigation resulting in Ms. Polito’s name being placed on the Ineligible/Inquiry

List making her ineligible to work as a teacher, and to take other action against

her resulting in her losses of wages, pension benefits, and professional


-18-

development opportunities. A-1178 to A-1179. In or about June 2007, after eight

months in a TRC and without being given charges or a hearing, Ms. Polito was

returned to the classroom to teaching in a combined 6 through 7 grade Selfth th

Contained Special Education Class. A-1180.

DOE repeated this pattern of falsely charging corporal punishment and

removing Polito from her teaching assignment only to return her to the classroom

toward the end of the semester for the ensuing academic years 2007-2008, 2008-

2009, and 2009-2010. A-1180 to A-1186. During this time as a teacher students

routinely called her “white bitch” and “white whore” and defendants failed to take

corrective action against the students. DOE failed to discipline students in her

class who have brought weapons to her class and required by DOE regulations,

and failed to protect her from these students’ on-going racial harassment racial.

DOE and the City failed to remove disruptive students from her classroom, have

denied her access to her employee records and personnel file and falsified

personnel records including charging her with unauthorized absences including

absences on non-working days and other false and trumped up charges of

malfeasance. A-1233 to A-1235.

In April 2009, Ms. Polito learned that her school’s principal, Rashaunda

Shaw, was falsifying attendance records by marking “absent” students “present”


This is particularly of moment because that particular week there was huge public3

concern and news coverage of a reported “drop” in students’ scores on state wide evaluationexams and the “regrading” of New York City’s Public Schools.

While this issue is not presently before the Court, Polito in was also given an4

Unsatisfactory rating on her 2009-2010 Annual Performance review without benefit of any

-19-

and raising students’ grades to grades that the students had not legitimately

earned. As a result, Ms. Polito prepared and signed a letter to DOE’s Office of3

Special Investigations (“OSI”) informing OSI of the Principal’s misconduct. 4AC

at ¶ 294. This letter was written on a subject of public concern, i.e., the education

of New York City’s public school students, it was not part of her job to write this

letter, and she was speaking not on her own behalf but on behalf of the students

who often cannot speak on their own behalf and can only be heard through the

efforts of their teachers. A-1188 to A-1189.

Although OSI investigated the alleged misconduct during the summer of

2009, OSI never interviewed Ms. Polito and the investigation was confined to the

school’s administrators and Principal. A-1189. Ms. Polito submits that she was

charged with corporal punishment in October 2009 and reassigned to a TRC in

retaliation for her writing the letter. A-1188 to A-1190.

By contrast to previous years, at the conclusion of the 2009-2010 academic

year, Polito was not returned to the classroom and formal charges were filed

against her. The issue of those charges being made against her in June 20104


Formal Observations by the Principal and despite not teaching since October 2009. This 2010rating was made after a previous attempt to rate Polito unsatisfactory in June 2009 was disruptedwhen Polito made known the falsified rating sheet which had never been placed in her personnelfile.

The podcasts and articles on the Internet which also include interviews of Ebewo and Scheiner5

conducted by Beth Fertig, WNYC’s Education Reporter are available at, among other websites:

http://www.npr.org/templates/story/story.php?storyId=126055157; http://www.npr.org/blogs/thetwo-way/2010/04/new_york_city_to_stop_paying_t.html;http://beta.wnyc.org/articles/wnyc-news/2010/apr/16/city-agrees-to-shut-the-rubber-rooms/;http://beta.wnyc.org/articles/wnyc-news/2010/apr/14/life-in-the-rubber-room-where-suspended-teachers-await-due-process/; http://beta.wnyc.org/articles/wnyc-news/2010/apr/15/nyc-to-close-rubber-rooms/;

http://www.wqxr.org/articles/wqxr-news/2010/apr/16/end-rubber-rooms/.

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within 10 weeks of Polito’s being featured in a two day story on the TRCs being

broadcast on WNYC-FM and National Public Radio and subsequently on their

Internet outlets as retaliation for her exercising her First Amendment Rights is not

presently before the Court.5

THOMASINA ROBINSON was constructively terminated from her

employment with DOE in October 2009 choosing retirement rather than continued

confinement in a TRC. She worked for DOE as a classroom teacher, Athletic

Director, and interscholastic athletics coach from 1990 to her constructive

termination in October 2009. Ms. Robinson has a total of 32 years experience as a

teacher, administrator, and coach, both in high school and college. Id. She is an

African-American Black Woman over forty years of age. A-1146.

Ms. Robinson enjoyed an unblemished teaching career receiving the highest

ratings for her performance. In September 2006 she was employed as a Physical


As with Ms. Polito, this is particularly of moment in that has been huge public concern6

and news coverage of a reported “drop” in students’ scores on state wide evaluation exams andthe “regrading” of New York City’s Public Schools. Public Officials and educators have madenumerous comments on this phenomenon in the press.

-21-

Education teacher and coach at DOE operated Fashion Institute High School

(“FIHS”) in Manhattan. In October 2006, the principal at FIHS, informed Ms.

Robinson that she was displeased with the grades in that Ms. Robinson had given

failing grades to too many students in her physical education classes. She asked

Ms. Robinson to change the grades. A-1192 to A-1199. Ms. Robinson told the

principal that the grades were based upon the students’ failing to attend classes

and state laws required that they given failing grades. The principal told Ms.

Robinson to change the failing grades to passing grades. Robinson disagreed with6

the principal and sought clarification from her Union’s Chapter Chair. Upon

clarification and verification of Ms. Robinson’s viewpoint, she informed her

principal that she continued to believe that the principals’ request violated the law.

She was threatened with being charged with insubordination if she did not change

the grades. A-1198 to A-1199. Ms. Robinson’s job was merely to report her

students’ grades as earned and not to advise the principal on State law or to

disagree with the principal.

Later that semester in December 2006, Ms. Robinson’s principal informed


-22-

her that certain students in her physical education class alleged that Ms. Robinson

had pulled a student’s ponytail, cursed at the student and had acted in an

aggressive and threatening manner to students in her class. A-1192, A-1199. The

principal either knew or should have known that these allegations were false since

the principal misquoted the students and enlisted the cooperation of faculty. The

principal also dropped disciplinary charges against the students who cooperated in

supporting the allegations against Ms. Robinson. A-1192 to A-1199.

As a result of false and unfounded allegations of corporal punishment DOE

investigated Ms. Robinson, suspended her from her teaching job, removed her

from her school and her teaching assignments, assigned her to a TRC, and placed

her name on the Ineligible/Inquiry List making her ineligible to work as a teacher,

resulting in her losing wages, per session fees, pension benefits and professional

development opportunities. A-1196, A-1197 and A-1199 to A-1200.

In May 2007, after Robinson was in a TRC for approximately six months,

DOE through NYSED filed formal charges against Robinson pursuant to New

York State Education Law based upon the false and unfounded allegations. In

February 2009, two years and two months after Robinson’s being suspended from

her tenured teaching job, Robinson’s hearing was commenced. A-1193. In October

2009, Robinson decided to retire because of her age, and physical and emotional


The Extended Day Session is not actual classroom instructional time but is time set aside for7

tutoring students.

-23-

exhaustion resulting from continued confinement in a TRC for nearly three years

and which would continue for the duration of the hearing which at a minimum

would continue for the remainder of the academic year. A-1193 to A-1194.

BRANDI SCHEINER was employed by DOE as a classroom teacher from

1984 until November 2009 with 26 years experience as a teacher. Id. She

constructively terminated in November 2009 choosing a disability retirement

rather than continued confinement to a TRC. Ms. Scheiner is a white woman over

forty years of age. A-1146. Ms. Scheiner enjoyed an unblemished teaching career

receiving the highest ratings for her performance. A-1207. On or about March 8,

2007, she slipped and fell in the hallway of her school building suffering a line of

duty injury. A-1201 to A-1202. Despite continued pain, she returned to work on

March 26, 2007. When she found her injuries rendered her unable to perform her

job duties, she took permitted medical leave for the remainder of the semester. Id.

Also on March 26 the District’s assigned District’s Learning Instructional

Superintendent (“LIS”) entered Ms. Scheiner’s classroom at 10:50 A.M., the time

when the class is usually dismissed. However, this was an Extended Day Session7

that ran until 11:00 A.M. Against all work rules, the LIS conducted an


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Observation of Ms. Scheiner’s teaching performance during less than ten minutes

of non-instructional time and prepared a Formal Observation Report in which she

evaluated her performance as “Unsatisfactory.”A-1202. Ms. Scheiner’s Principal

used this unlawfully prepared Formal Observation Report as the basis for giving

Ms. Scheiner an Unsatisfactory Rating on her Annual Performance Review for the

academic year 2006 -2007. Because the Formal Observation was prohibited, this

rating was not a legal evaluation of Ms. Scheiner’s teaching or classroom

management abilities. A-1202.

In addition, Ms. Scheiner was falsely charged in her Pre-K class with : (1)

poor rug management; (2) allowing excessive use of glue; (3) writing below the

lines; (4) improper snack time; (5) improper use of capital letters; and (6) other

false and unfounded allegations. A-1202 to A-1203. In addition, she was charged

with excessive absences despite her permitted medical leave for a line of duty

injury. A-1203. As a result of the false and unfounded allegations DOE

commenced an investigation of Ms. Scheiner. The commencement of the

investigation resulted in DOE suspending her from her teaching job in June 2007,

assigning her to a TRC, and placing her name on the Ineligible/Inquiry List

making her ineligible to work as a teacher, resulting in Scheiner’s losses of wages,

pension benefits, professional development opportunities. A-1203.


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In or about May 2008, after Ms. Scheiner was in a TRC for nearly one year,

DOE through NYSED filed formal charges against Scheiner pursuant to New

York State Education Law based upon the false and unfounded charges. In or

about October 2009, more than two years year after Scheiner’s being suspended

from her tenured teaching job DOE and NYSED commenced Scheiner’s hearing.

In November 2009, Scheiner decided to take a disability retirement based upon her

physical pain and suffering that was exacerbated by the harsh conditions in the

TRCs in which she was forced to sit on plastic chair and work on bridge tables,

and also due to her physical and emotional exhaustion from more than two years

confinement in a TRC, a confinement she knew would continue for the remainder

of the academic year at a minimum while her hearing continued. A-1204.

Ms. Scheiner filed the original complaint and amendments within ninety

days of receipt of a Notice of Right to Sue Letter from the United States Equal

Employment Opportunity Commission (“EEOC”). A-876 to A-902, A-1144.

SUMMARY OF THE ARGUMENT

This Court should review the District Court’s dismissal of the Fourth

Amended Complaint de novo. Muller v. First Unum Insurance Co., 341 F.3d.119,

124 (2d Cir. 2003). Upon review this Court should find that plaintiffs-appellants

alleged facts sufficient to raise causes of action for denial of a protected property


-26-

interest that required a due process hearing. That they also pleaded facts sufficient

to raise claims for an unconstitutional denial of their rights to a prompt hearing.

Plaintiffs-appellants have adequately alleged claims for deprivation of their liberty

interests by defendants false statements and depriving them from using their

teaching licenses. Plaintiffs-appellants have adequately alleged a statutory scheme

that deprives them and other teachers who wish to appeal an adverse due process

hearing decision of both equal protection of the law and denial of due process.

Ms. Polito and Ms. Robinson spoke on matters of public concern that were

not within the scope of their duties as employees and sufficiently raised claims for

First Amendment Retaliation. The District Court applied a heightened pleading

standard to plaintiffs-appellants employment discrimination claims and

erroneously dismissed them. In all instances the District Court erroneously

engaged in fact finding and in construing facts against plaintiffs-appellants on the

motions to dismiss pursuant to Fed. R. Civ. P 12(b)(6).

Finally, the District Court abused its discretion in denying plaintiffs-

appellants to amend their complaint.


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ARGUMENT

1. PLAINTIFFS-APPELLANTS HAVE WELL-ESTABLISHEDPROPERTY INTERESTS IN THEIR TENURED TEACHINGPOSITIONS, THEIR TEACHING LICENSES AND THEIR JOBDUTIES UNDER THE UNITED STATES CONSTITUTION

A. The Nature of the Numerous Protected Property Interests At Stake

This Court must conduct a de novo review of the District Court’s error in

dismissing plaintiffs-appellants’ claims for violation of their constitutionally

protected property interests in their tenured teaching positions and teaching

licenses.

Plaintiffs-appellants are all tenured teachers employed by the City of New

York and assigned to teach in the public schools operated by defendant New York

City Department of Education (“DOE”). Each is and have been duly licensed by

the State of New York as teachers and qualified to teach in the New York City

Public School System. Their tenure interests arise from their contract with DOE

and pursuant to New York State law as provided in New York State Education

Law § 3020 and § 3020-a. Consequently, their teaching positions are a

constitutionally protected property interest.

It is well settled that tenured teachers such as plaintiffs-appellants have a

constitutionally protected property interest in their tenure. Board of Regents v.


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Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709 (1972), see also Perry v.

Sindermann, 408 U.S. 593, 602-03, 92 S.Ct. 2694 (1972), see also, DeMichele v.

Greenburgh Central School Dist. No. 7, 167 F.3d 784, 789 (2d Cir 1999). Their

property interests arise not from the constitution but from a separate source such

as state law. Board of Regents v. Roth, 408 U.S. at 577, 92 S. Ct. at 2709 (1972),

see also Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct

1487, 1491 (1985). Plaintiffs-appellants’s tenured teaching interests are therefor a

property interest recognized by the United States Constitution.

Notwithstanding this well recognized principal of Constitutional Law, the

District Court adopted the R&R and its ambiguous dismissal of plaintiffs-

appellants’ property interests. After first recognizing a protected property interest

in their tenure, the r7r goes on to state that the “DOE did not deprive plaintiffs of a

property interest by sending them to the TRCs and prohibiting them from teaching

and ‘associating with teaching colleagues who are performing classroom duties.’”

Rnr p44. This conclusion fails to acknowledge the full scope of plaintiffs-

appellants’ pleadings and their protected property interests.

Plaintiffs-appellants also alleged that in addition to their salaries they have

also alleged that their constitutionally protected interest in their continued

employment requires that the removal to TRCs prevented from seeking alternate


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employment with their licenses or even seeking other licenses in that their

constitutional deprivation extends to their having suffered additional harm in the

way of being placed on the Ineligible/Inquiry List making [them] ineligible to

work as a teacher in “any state including the State of New York,” and to take other

action against [them] “including but not limited to losses of wages, pension

benefits, professional development opportunities” all as a result of the

constitutional deprivations they have suffered. Ms. Robinson was the athletic

director and coach of two sports teams at her school for twenty-years and that she

received additional pay for these assignments; pay that she did not receive once

she was reassigned.

The decision below thus fails to recognize that plaintiffs-appellants pleaded

not only a loss of additional and established income but also an entire array of

property interests arising from their tenure and their teaching licenses.

Consequently, the decision below failed to accept as true that the reassignments to

TRCs have deprived plaintiffs-appellants of protected property interests..

Plaintiff-appellants maintain significant property interests in their job and

the use of their teaching skills aw well as the use of their teaching licenses. They

also are deprived of earning the full potential of income and ability to seek other

teaching positions while defendants hold their licenses hostage in TRCs in which


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they sit without assigned duties. They are also deprived of associating with

teaching colleagues who are performing classroom duties.

B. The District Court Erred by Holding That the Only Protected PropertyInterest is Plaintiffs-Appellants’ Base Salaries

The Decision erroneously held that defendants did not violate plaintiffs-

appellants property interests when they were suspended with pay. SPA-20. As a

result, it failed to recognize not only the full panoply of plaintiffs-appellants’

compensation but also that the duration of the respective suspensions as pleaded in

and of themselves violate plaintiffs-appellants’ property interests.

This Court has stated that if a tenured employee who has been “suspended

with pay can make out a claim of constructive discharge, then he may have the

same right to bring a procedural due process claim that he would have if he were

fired.” O’Connor v. Pierson, 426 F.3d 187, 200, n. 5. (Citing Parrett v. City of

Connersville, 737 F.2d 690, 694 (7th Cir.1984), cert dismissed, 469 U.S. 1145,

105 S.Ct. 828 (1985).

In O’Connor, the appellant was a tenured teacher employed in Connecticut.

O’Connor v. Pierson, 426 F.3d at 196. Originally, the appellant had brought two

substantive due process claims (1) violation of his right to privacy, and (2)

unconstitutional deprivation of a property interest as a tenured teacher relating to


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his loss of salary while suspended. Id., 426 F.3d at 199. On appeal the appellant

had narrowed his claim to the right to privacy. Therefore, despite this Court’s

stating that under the facts presented in Parrett a plaintiff may have the right to

bring a procedural due process claim the Rnr and the decision below erred by not

recognizing that plaintiffs-appellants had raised a cognizable claim for violation of

their procedural process rights arising from their reassignment to the TRCs.

O’Connor v. Pierson, read in conjunction with Parrett v. City of

Connersville, makes it readily apparent that plaintiffs-appellants have raised a

claim for a deprivation of a substantive property interest in their teaching positions

and its emoluments, beyond that of receiving a base salary. “[T] Fourteenth

Amendment’s Due Process Clause forbids the government from burdening, in a

constitutionally arbitrary way, an individual’s property rights. O’Connor v.

Pierson, 426 F.3d at 204 (citations omitted). That property right extends to a

tenured employee’s right to be free from miserable working conditions. Parrett v.

City of Connersville, 737 F.2d at 694.

The decision below erroneously held that O’Connor required plaintiffs-to

“expressly assert constructive discharge either as a distinct claim or as a theory of

liability” p.20. The error arises from the District Court’s mistaken belief that the

appellant in Parrett raised a claim for constructive discharge. In fact, the appellant


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raised a claim for damages under 42 U.S.C. § 1983 alleging that the municipality

had taken “away his job as a policeman in circumstances that amounted to a

deprivation of property without due process of law, thus violating the Fourteenth

Amendment.” Parrett v. City of Connersville, 737 F.2d at 692. A jury awarded

him compensatory and punitive damages. Id. On appeal, defendants “argue[d]

principally that they did not take away his job.” Id.

The police officer’s working conditions in Parrett, and those of plaintiffs-

appellants are strikingly similar. In Parrett, the appellant was reassigned from his

position as “chief of detective and transferred to the uniformed force as ‘line

captain’ without reduction in pay.” Id., 737 F.2d at 694. He was given no duties

and spent his shift doing nothing but sitting at a desk and chair in an windowless

room with no telephone or other furniture. Id..737 F.2d at 694. After a time the

enforced idleness made him ill and he retired. Id.

Similarly, plaintiffs-appellants have alleged that they were reassigned from

their teaching positions and made to report to TRCs where they were given no

duties and spent their working hours doing nothing. FAC and DKT 113. They

have elaborated on the conditions of the TRCs. The respectable conditions

attendant to the their profession was gone. Lack of professional development and

association with colleagues worked to erode their skills. Also similar to the


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appellant in Parrett, plaintiffs-appellants have all alleged physical and emotional

injury arising from their reassignment from the duties and dignity of their

profession. In failing to find that plaintiffs-appellants had adequately alleged a

deprivation of a property interest, the decision below disregarded the significant

words of Judge Posner who wrote:

“[t]o pay a man without asking him to do any work in exchange mightappear to be the antithesis of constructive discharge-might appear tomake his “working” conditions paradisal rather than infernal. Thismight well be true if the work was dirty, dangerous, unhealthy,backbreaking, repetitive, or otherwise disagreeable, or if the workerhad the personality of a remittance man. But as a former chief ofdetectives, still young, Parrett was not a drudge or a time-server butan ambitious professional. Enforced idleness was not only ahumiliating counterpoint to his years as detective chief but would ifprolonged have depreciated his professional skills to the point whereit would have been difficult for him to work his way back, inConnersville or elsewhere, to a responsible position. For anyone withsome self-respect the position that Cordes and the other defendantsplaced Parrett in was intolerable; even if his health had not collapsedunder the strain, he would have had to quit. The responsibility for hisleaving was thus the defendants’... given the defendants’determination that Parrett should do no police work but just twiddlehis thumbs in the closet.”

Id., 737 F.2d 690, 694 (7th Cir.1984) (Posner, C.J.)

The issue of tenured public employee reassignments that by their conditions

rise to a constitutional violation of protected property interest are not unknown to

this Court which, in O’Connor, favorably cited Parrett v. v. City of Connersville


In Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998), the Seventh Circuit in8

reliance upon Parrett v. City of Connersville affirmed the denial of motion to dismiss whenthe defendants who barred a physician whose good reputation spanned several continents fromseeing patients for eleven months and who was then assigned to review old medical films wherethere was a constitutionally inadequate process for him to confront the charges against him.Levenstein v. Salafsky, 164 F.3d at 351.

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eleven years after the decision was rendered. In Delong v. U.S., 621 F.2d 618 8

(4 Cir. 1980), the Fourth Circuit stated, “[T]he issue thus becomes whether theth

specific reassignment or transfer does in fact impose upon the employee such a

Hobson’s choice between resignation and surrender of protected rights as to be

tantamount to outright dismissal ... It is obvious that not every reassignment or

transfer can fairly be thought to have this quality. It is equally obvious that in

practical terms some might.” Delong v. U.S., 621 F.2d at 624.

As can be seen from O’Connor, Parrett, and Delong, the decision below

erred in finding that plaintiffs-appellants did not have a constitutionally protected

property interest beyond receiving a base salary.

2. PLAINTIFFS-APPELLANTS HAVE ADEQUATELY STATED ACLAIM FOR VIOLATION OF PROCEDURAL DUE PROCESS

This Court must conduct a de novo review of the District Court’s error in

dismissing plaintiffs-appellants’ claim for violation of their constitutionally

protected right to a prompt due process hearing.


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A. Plaintiffs-Appellants Adequately Pleaded Causes of Action forDeprivation of their Procedural Due Process Rights

The Fourteenth Amendment provides that a governmental entity may not

“deprive any person of life, liberty, or property without due process of law.” U.S.

Const. amend. XIV, §1. Due process of law requires that “no person may be

deprived of life, liberty, or property without reasonable notice and an opportunity

to be heard.” Karpova v. Snow, 473 F.3d 262, 270 (2d Cir. 2007). “The

fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S.

319, 333, 96 S.Ct. 893, 902 (1976). (Internal quotations and citation omitted).

Having established that plaintiffs-appellants have a protected property in

interest in their tenured teaching positions and their teaching licenses, it is

incumbent upon the defendants provide plaintiffs-appellants with a due process

hearing when they are suspended from their jobs and their licenses are suspended.

Each of the plaintiffs-appellants has been assigned to TRCs without a due process

hearing for at least two years. During that time they have been on an Ineligible /

Inquiry List preventing them from the use of their licenses. Plaintiffs-appellants

have also alleged that, among other allegations, this extraordinarily lengthy delay

in which the defendants schedule plaintiffs-appellants § 3020-a due process


See e.g., Matthews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903 (listing the three9

distinct factors of a due process consideration, “First, the private interest that will be affected bythe official action; second, the risk of an erroneous deprivation of such interest through theprocedures used, and the probable value, if any, of additional or substitute procedural safeguards;and finally, the Government's interest, including the function involved and the fiscal andadministrative burdens that the additional or substitute procedural requirement would entail”).

This Court may take Judicial Notice of the many news reports that have10

highlighted the cost to the government not only of the salaries paid to suspended teachers butalso the cost of operating the TRCs.

-36-

hearings violates their procedural due process right to a hearing in a meaningful

time and in a meaningful manner.

By pleading this lengthy delay for a hearing, plaintiffs have adequately

alleged causes of action for violation of their procedural due process rights.

Although the government can come forward and provide a reason for such delay ,9

on these Motions to Dismiss, in which there has not been any discovery, there is

no evidence by the government to excuse delaying plaintiffs-appellants’

§ 3020-a Hearings.10

The decision below erred in two respects. First, it erred when it

distinguished between post-deprivation and pre-deprivation hearing requirements

and finding that plaintiffs-appellants had not been deprived of a protected property

interest. Second, it erred in finding that “Polito, Robinson, and Scheiner do not

have standing to claim that the § 3020-a hearings do not provide adequate due

process” because they did not have § 3020-a hearings. These two findings


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disregard that the suspensions and placement on the Ineligible/Inquiry List have

deprived plaintiffs-appellants of a protected property interest that requires a post-

suspension hearing in a meaningful time and meaningful manner. The delay in

providing a due process hearing unlawfully delays plaintiffs-appellants ability to

clear their names and makes it impossible to work as a teacher in any school

during the delay. All of the plaintiffs-appellants have waited years for a hearing

while remaining in TRCs without duties therefore they all have standing to raise

the claim of the deprivation of their constitutional right to a timely hearing.

B. A Prompt Due Process Hearing Is Required Because Plaintiffs-Appellants have been Deprived of a Protected Property Interest

Although state law may provide for a due process hearing that state law

must still meet the federal law, and federal law determines the adequacy of the

remedy, not the state law. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. ? at 540,

105 S.Ct. at 1492. The decision below erred when it held that the statutory scheme

that provides for a due process hearing for teachers without consideration as to the

fact that these statutes do not provide for a time when the hearings must be held

nor are plaintiffs-appellants’ hearings being held in conformity with the

constitutional mandate.

Both the United States Supreme Court and this Court have held that failing


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to provide individuals whose licenses to practice their professions or engage in

their chosen businesses have been suspended with a due process hearing in a

meaningful time and in a meaningful manner is a constitutional violation. These

precedents, although not concerning teaching licenses, have provided guidance as

to determine the element of a meaningful time in which to conduct a hearing

concerning the suspended licenses.

The United States Supreme Court has held that a New York State licensed

harness racing trainer whose license was suspended was entitled to a prompt post-

suspension hearing to determine the validity of the state’s accusations. Barry v.

Barchi, 443 U.S. 55, 99 S.Ct. 2642 (1979). As in the instant case, Barry concerned

a thorough due process procedure, but the application of the statute at issue was

unconstitutionally applied to the suspended trainer. Id., 443 U.S. at 63-64, 99 S.Ct.

at 2648-2649. In Barry, the regulations at issue provided for a post-suspension

hearing but “specifie[d] no time in which the hearing must be held.” Id., 443 U.S.

at 60, 99 S.Ct. at 2647. The Supreme Court noted that “[o]nce suspension has been

imposed, the trainer’s interest in a speedy resolution of the controversy becomes

paramount.” Id., 443 U.S. at 65, 99 S.Ct. at 2650. The Court also noted that an

“early and reliable determination” was as much in the State’s interest as it was in

the trainers. Id.


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Similar to the statute at issue in Barry §§ 3020 and 3020-a provide a

procedural structure in which hearings concerning suspensions are to be held.

However, these statues are also silent as to a specified time when disciplinary

charges are to be brought and a hearing held. Consequently, the statutes do not

provide plaintiffs with adequate due process protections in conformity with the

constitutional mandate that requires that a hearing be held in a meaningful time

and in a meaningful manner.

This Court has held that a delay of fifty-eight days before holding a hearing

is a significant constitutional deprivation. Spinelli v. City of New York, 579 F.3d

160 (2d. Cir 2009). This Court found that New York City’s blanket policy of

providing a hearing only after completing an investigation that may take months or

years could not be “squared with due process.” Id., 579 F.3d at 173. In reaching

this conclusion, this Court stated, “the holding of a hearing possibly years after a

license suspension cannot amount to a justifiable delay.” Id.

In support of its conclusion in Spinelli, this Court cited Cain v. McQueen,

580F.2d 1001 (9th Cir. 1978) and Brown v. Bathke, 566 F.2d 588 (8th Cir. 1977).

Both Cain and Brown concerned the denial of a prompt formal hearing for

terminated teachers. This Court having adopted the reasoning of Eighth and Ninth

Circuit precedents has recognized that license suspensions are akin to termination.


-40-

In Kuck v. Danaher, 600 F.3d 159 (2d Cir. 2010), this Court has recently

held that under the Mattthews analysis a delay of months may be reasonable. Kuck

concerned the attempt of an individual renewal of a Connecticut gun permit. Kuck

v. Danaher, 600 F.3d at 161-163. In reliance upon Spinelli, this Court reversed

dismissal of the complaint for failure to state a cause of action and found “that

Kuck has stated a procedural due process claim”. Id., 600 F.3d at 167.

In Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), this Court required that

the City of New York provide a prompt hearing to persons whose vehicles had

been seized pursuant to state statute following an arrest for driving while

intoxicated. Krimstock v. Kelly, 306 F.3d at 44. In this civil forfeiture case this

Court held that the “Fourteenth Amendment guarantees that deprivations of

property be accomplished only with due process of law requires that plaintffs be

afforded a prompt post-seizure, pre-judgment hearing.” Id., 306 F.3d 67.

The time span in which plaintiffs have been deprived of a due process

hearing are clearly well in excess of the time frame in which a due process hearing

must be held to protect a property interest and cannot be squared with the

requirements of due process.

Sections 3020 and 3020-a provide a procedural structure in which hearings

are to be held. However, § 3020-a is silent as to a time when disciplinary charges


-41-

are to be brought and a hearing held. Consequently, the statutes do not provide

plaintiffs with adequate due process protections in conformity with the

constitutional mandates of a hearing to be held in a meaningful time and in a

meaningful manner. Hearings are not held in a meaningful time. Plaintiffs languish

in TRCs for two years and more waiting to receive notice of the charges against

them and for hearings to be held. A-993 to A-996.

Plaintiffs-appellants have specifically alleged that they have waited

extensive amounts of time in the TRCs waiting for due process hearings. They

have alleged that defendants have not provided them with constitutionally timely

post-suspension hearings. Plaintiffs have also alleged that such misconduct

violates the Fourteenth Amendment to the United States Constitution, 42 U.S.C. §

1983 and deprives them of their due process protections.

Ms. Polito stands in a unique position. At the time the FAC was filed she

had spent 49 of the last 54 months in a TRC while allegations against her at the

beginning of each of the last four school years were investigated. She was returned

to the classroom at the end of each school year when the investigation was

completed. Until June 2010, she was never charged with any wrongdoing pursuant

to Education Law § 3020-a. Consequently, for four and one half years she had

spent more than 4 years in a TRC. She has continually been deprived of the use of


-42-

her license without even Notice or an Opportunity to be heard.

Her situation is akin to the plaintiff in Palkovic v. Johnson, 281 Fed. Appx.

62 (2d Cir. 2008). In Palkovic the school district subjected the plaintiff to

numerous unsuccessful disciplinary proceedings pursuant to § 3020-a. Id., 281

Fed. Appx. at 65. Similarly, Ms. Polito has continually been subjected to repeated

allegations that have confined her to TRCs without any hearing. Defendants’

bringing these unproven allegations against her so as to suspend her license the

defendants can “achieve the desired result” of removing her from the classroom

without notice of charges or a hearing violates Ms. Polito’s due process rights. She

has satisfied her pleading obligations in stating a claim for denial of her due

process rights. See Palkovic v. Johnson, 281 Fed. Appx. at 66 (Holding that

plaintiff who alleged she was repeatedly subjected to unfounded § 3020-a charges

has stated a cause of action for the denial of her due process rights).

Conclusively, the United States Supreme Court and this Court have

repeatedly held that due process hearings that implicate a property interest must

commence in a meaningful time and in a meaningful manner, unless rebutted by

some overriding governmental concern. In the procedural posture of this case in

the District Court, a motion to dismiss without any discovery, there is no evidence

of any overriding governmental concern but ample allegations by plaintiffs-


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appellants of the deprivation of a substantial property interest. Plaintiffs-appellants

have adequately pleaded causes of action for deprivation of protected property

interests and the defendants’ failure to provide plaintiffs with an opportunity for

prompt hearings concerning the deprivation of their property interests.

The court below erred when it failed to apply this Circuit’s precedents

which recognize a that a constitutional deprivation of a protected property interest

occurs on suspension of the privilege. Additionally, the court below erred by

holding that the only protectible interest is a loss in salary. The line of cases in this

Court, while not dealing specifically with tenure or teachers’ licenses, clearly

establishes that suspension of licenses and state interference with protected

property interests require prompt post-suspension hearings. Because plaintiffs-

appellants’ rights to a prompt post-suspension hearing are well established in this

Circuit, the decision below must be reversed and their claim for violation of their

procedural due process rights reinstated.

C. The District Court Erred When It Held that A State Law Article 78Provides Adequate Relief for Plaintiffs-Appellants Constitutional Claims

Lawsuits alleging violations of due process right under 42 U.S.C. § 1983

and the Fourteenth Amendment are properly brought before a United States Court.

This Court has distinguished between claims based on state procedures and those


-44-

claims based upon random unauthorized acts of state employees in which Article

78 might be an adequate remedy. Hellenic American Neighborhood Action Comm.

v. City of New York, 101 F.3d. 877, 880 (2d Cir. 1996)(citations omitted).

However, plaintiffs-appellants have alleged nearly identical deprivations of

property interests and failure to provide prompt hearings to adjudicate those

deprivations. This their claims are not those of a random unauthorized act of a

state employee. The decision below further erred when it held that an Article 78

would have adequately provided the necessary due process procedure. Report and

Recommendation, p 48, n.40. This reasoning disregard this Court’s precedents

which hold that when claims such as those plaintiffs-appellants allege, based on

established state procedures for constitutional deprivations, then “the availability

of [state] post-deprivation procedures will not, ipso facto, satisfy due process.”

Hellenic Am. Neighborhood Action Committee v. City of N.Y., 101 F.3d at 880 (2d

Cir. 1996) (citations omitted). See also, Krimstock v. Kelly, 306 F.3d at 60.

(Concluding that an Article 78 proceeding is not effective for challenging

automobile seizures and citing cases that federal or constitutional claims

concerning procedural requirements are a matter of federal law.) New York State

law also recognizes that where, as here, plaintiffs-appellants seek relief from the

application of Section 3020-a under the United States Constitution, “an article 78


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proceeding is not the proper vehicle for such a review.” Jerry v. Bd. of Ed. of City

of Syracuse, 35 N.Y.2d 534, 544, 364 N.Y.3.2d 440, 447 (1974).

3. THE DISTRICT COURT ERRED WHEN IT DISMISSED MS.POLITO’S SEVENTH AND EIGHT CAUSES OF ACTION ASBARRED BY THE STATUTE OF LIMITATIONS

The dismissal of Ms. Polito’s causes of action on statute of limitations

grounds is reviewed de novo. The decision below erred in dismissing Ms. Polito’s

Seventh and Eighth Causes of Action as barred by the three year statute of

limitations for § 1983 actions. The decision also erred in holding that Polito never

raised her constitutional deprivations as an Administrator until the FAC. Id. at p.

42, n 32. This is inaccurate. Ms. Polito raised these claims of a constitutional

deprivation as an administrator in her original lawsuit commenced on June 30,

2008. In the FAC Ms. Polito’s realleges her administrative claim on identical,

albeit with more clear and concise allegations.

Where a claim in an amended pleading “arises out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in the original

pleading” then Federal Rule of Civil Procedure 15(c)(1)(B) provides that for

statute of limitations purposes that claim “will relate back to the original pleading”

and is therefore not time barred. See Federal Practice & Procedure, Civ. (3d ed.)

Vol. 6A, § 1497. Wright, Miller, Kane, and Marcus (Emphasis Supplied).


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Ms. Polito’s Seventh and Eight Causes of Action in the FAC allege facts

arising from conduct commencing in January 2006 and occurred two years and

five months prior to the commencement of suit on June 30, 2008 and are within

the applicable three year statute of limitations. The Decision below entirely

overlooked the fact that Polito alleged facts of defendants’ misconduct with

respect to Polito’s position as an Administrator in the Plaintiffs’ SAC. Ms.

Polito’s allegations in both the SAC and the FAC concern misconduct by a Local

Instructional Superintendent who set out to destroy Ms. Polito’s career and led to

Polito’s being removed from her position as Interim Acting Principal of TASS, the

Middle School she Polito had founded and her subsequent reversion to a teaching

position. Ms. Polito’s causes of action for must be reinstated.

4. THE PLAINTIFFS-APPELLANTS ALLEGED A CAUSE OFACTION FOR DEPRIVATION OF THEIR LIBERTY INTERESTSWHEN THE MUNICIPALITY AND ITS SCHOOL DISTRICTPLACED APPELLANTS ON THE INELIGIBLE / INQUIRY LISTTHEM FROM THE USE OF THEIR STATE TEACHING LICENSES

The dismissal of plaintiffs-appellants Liberty Interests Claims is reviewed

de novo. A Liberty Interest is effected when the government engages in conduct

that damages the plaintiff’s reputation “accompanied by some significant

deprivation, such as dismissal from government employment.” O’Neill v. City of

Auburn, 23 F.3d 685, 691 (2d Cir.1994). This test for liberty interest claims


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stemming from alleged government defamation is commonly referred to as the

“stigma plus” test. Id., 23 F.3d at 667. The stigmatizing statements at issue here

are unproven allegations leading to plaintiffs-appellants being placed on the

Ineligible/Inquiry List plus their removal from teaching duties and its related

property interests. Because the District Court failed to find a protected property

interest based solely upon plaintiffs-appellants’s being paid a salary, the analysis

and resulting conclusion dismissing plaintiffs-appellants liberty interest claims

was erroneous and must be reversed.

5. PLAINTIFFS-APPELLANTS HAVE PLEADED CAUSES OFACTION FOR VIOLATION OF DUE PROCESS AND EQUALPROTECTION RIGHTS BASED UPON AN UNLAWFULSTATUTORY SCHEME THAT LIMITS THEIR TIME TO APPEALAN ADVERSE DECISION IN A DUE PROCESS HEARING

The dismissal of plaintiffs-appellants Second Cause of Action is reviewed

de novo. The Decision erred in dismissing plaintiffs-appellants’ second cause of

action for deprivation of their Due Process and Equal Protection Rights under the

Fourteenth Amendment arising from inadequate process for appealing a decision

in a § 3020-a hearing. Section 3020-a(5) provides for a ten day limitations period

to file a CPLR Article 75 lawsuit to appeal an adverse decision. The statute thus

classifies tenured teachers differently from both the class of other arbitration

appellants under Article 75 which has a ninety day statute of limitations to appeal


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an arbitrator’s decision (CPLR 7511(a)), and the class of appellants of state

administrative adjudications under Article 78 which has a four month statute of

limitations (CPLR 217). Section 3020-a(5)’s severely cramped statute of

limitations is irrational and thus constitutionally infirm. Plaintiffs-appellants

alleged hardship of the limitations and how it was entirely inadequate to protect

their interests and treated them differently from other arbitration appellants.

Plaintiffs-appellants Ms. Hart, Ms. Robinson, and Ms. Scheiner have all alleged

injury from Section 3020-a(5), while Mr. Ebewo and Ms. Polito Robinson had

Section 3020-a hearings sub judice and requested the relief of enjoining

enforcement of Section 3020-a(5).

This Court has held that a section 3020-a hearing is an administrative

adjudication. Burkybile v. Bd. of Educ. of the Hastings-on Hudson U.F.SD., 411

F.3d 306, 311 (2d. Cir. 2005). As a result, the reduced statute of limitations for

tenured teachers clearly departs from the rights enjoyed by other appellants of

administrative adjudications. Whenever a law provides for differing burdens or

benefits, it will be tested under the equal protection clause. See § 14.1, p. 741,

CONSTITUTIONAL LAW 8 Ed., Nowak and Rotunda (2010). By its terms, Sectionth

3020-a(5) clearly burdens the class comprised of teachers and treats them

differently from other individuals who seek relief from arbitral or administrative


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agency decisions. Alternatively, Section 3020-a(5) denies tenured teachers an

adequate post-deprivation review procedure. When state law provides for a due

process hearing it must still meet the federal law and federal law determines the

adequacy of that remedy, not state law. Cleveland Bd. of Ed. v. Loudermill, 470

U.S. 532, 540, 105 S.Ct. 1487, 1492 (1985) (Citations omitted). See also § 13.8(I),

pp. 692-693, CONSTITUTIONAL LAW 8 Ed., Nowak and Rotunda (2010). Theth

District Court’s decision to dismiss this cause of action must be reversed.

6. PLAINTIFFS-APPELLANTS MS. POLITO AND MS. ROBINSONADEQUATELY STATED INDIVIDUAL CAUSES OF ACTION FORFIRST AMENDMENT RETALIATION AND SPOKE AS CITIZENSON A MATTER OF PUBLIC CONCERN WHEN THEY SPOKE OUTABOUT FALSIFICATION OF STUDENT RECORDS

The dismissal of Ms. Polito’s and Ms. Robinson’s First Amendment

Retaliation Claims are reviewed de novo. The Decision erroneously dismissed Ms.

Polito’s and Ms. Robinson’s First Amendment Retaliation claims by engaging in

impermissible fact finding as to their job duties. SPA-9. It also erred in dismissing

these claims because it determined that plaintiffs-appellants communication were

internal. SPA-16 to SPA-19. Finally, the Decision substituted its own

interpretation of the facts and misapplied the Iqbal/Twombley standard.

The decision renders Ms. Robinson’s job duties to simply obey a principal’s

directive to change her student grades even when Ms. Robinson had believed the


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changes violated state law. Ms. Robinson told her principal as much and made

inquiries of union Chapter Chair who confirmed the law with NYSED. Ms.

Robinson reported the communication to her principal who insisted that the grades

be changed, which was done. Nonetheless, within two months the principal

retaliated by having DOE investigate false corporal punishment allegations made

by a student against Ms. Robinson. Ms. Robinson was subsequently suspended

and sent to a TRC. A-1197 to A-1201.

Ms. Polito became aware that her principal was falsifying records in the

Spring of 2009. She then went outside the chain of command to DOE’s Office of

Special Investigation. OSI investigated during the summer of 2009. In October

2009, the principal falsely charge Ms. Polito with corporal punishment, suspended

her and sent her to a TRC. A-1188 to A-1191.

“It is well settled that public school teachers … do not check their First

Amendment rights at the schoolhouse door when they enter public employment.”

Cioffi III v. Averill Park Central School District Board of Ed., 444 F.3d 158, 162

(2d Cir. 2006). “It is essential that they be able to speak out freely without fear of

retaliatory dismissal.” Pickering v. Bd. of Education, 391 U.S. at 563, 572, 88


With regard to retaliation, TRCs are an effective means of silencing teachers similar to11

“freeway therapy” used by Los Angeles Police Department supervisors who transfer officers whoreport misconduct“to the precinct furthest from where they live.” Erwin Chemerinsky, TheFuture of the First Amendment, 46 Willamette L. Rev. 623, 627 (2010).

-51-

S.Ct. at 1731, 1736 (1968). The decision ignored these guiding principles and11

erroneously relied upon Weintraub v. Board of Education of the City School

District of the City of New York, 593 F.3d 196 (2d Cir. 2010). SPA-11.

Weintraub is readily distinguishable from the facts on this appeal. In

Weintraub this Court held, “that Weintraub, by filing a grievance with his union to

complain about his supervisor's failure to discipline a child in his classroom, was

speaking pursuant to his official duties and thus not as a citizen.” Id., 593 F.3d at

203. In addition, Weintraub was decided on Summary Judgment after an

examination of the full record.

Ms. Polito and Ms. Robinson have adequately alleged a claim for First

Amendment Retaliation. To raise a claim of First Amendment employment

retaliation a public employee “must show that: (1) his speech addressed a matter of

public concern, (2) he suffered an adverse employment decision, and (3) a causal

connection exists between the speech and that employment decision, so that it can

be said that plaintiff’s speech was a motivating factor in the adverse employment

action.” Cioffi v. Averill Park Central School District Board of Ed., 444 F.3d at


-52-

162. Just because a public employee “speaks inside his office rather than publicly

is not dispositive. Garcetti v. Ceballos, 547 U.S. 410, 420 (206). See also Cioffi v.

Averill Park Central School District Board of Ed., 444 F.3d at 165. “[S]tatements

concerning the quality of education in schools is a matter of public concern.” Id.,

444 F.3d at 164.

Under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006), the public

employee must also not be speaking pursuant to official business or simply

performing job duties. Id., 547 U.S. at 423. In Garcetti, the Court did not

“articulate a comprehensive a comprehensive framework for defining the scope of

an employee’s duties in cases where there is room for serious debate.” Id., 547

U.S. at 424, 126 S.Ct. at 1961. Essentially, Garcetti requires the development of a

full record before a determination can be made as to whether the speech at issue

was made within the scope of employment. See Snyder v. Phelps, U.S. ,

131 S.Ct. 1207, 1220 (2011)(First Amendment cases require that courts carefully

review the record) See also Sousa v. Roque, 578 F.3d 164, 170 (2d Cir. 2009)

(“[w]hether an employee's speech addresses a matter of public concern must be

determined by the content, form, and context of a given statement, as revealed by

the whole record.” citing Connick v. Meyer, 461 U.S. 138, 146-148, 103 S.Ct.

1684 (1983). A court may not dismiss a First Amendment retaliation claim without


-53-

a clear record as to the scope of an employee’s job duties. Skehan v. Village of

Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006). The lack of a full record and the

Decision’s ignoring that Ms. Polito and Ms. Robinson spoke on matters of public

concern require reversal.

7. THE DISTRICT COURT ERRED BY DISMISSING PLAINTIFFS-APPELLANTS’ CAUSES OF ACTION FOR EMPLOYMENTDISCRIMINATION BY REQUIRING A HEIGHTENED PLEADINGSTANDARD AND MISINTERPRETING RELEVANT LAW

The dismissal of plaintiffs-appellants’ employment discrimination claims is

reviewed de novo. A plaintiff may allege facts upon information and belief where

the facts are peculiarly within the possession of the defendant.(Citations omitted).

“At the pleading stage an employment discrimination plaintiff who alleges

facts that provide fair notice of the claim need not also allege specific facts

establishing a prima facie case.” Arista Records, LLC v. Doe 3, 604 F.3d. at 120

(2d Cir. 2010) (Citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512, 122 S.Ct.

992, 1052 (2002). The District Court erroneously relied upon an interpretation of

the Iqbal/Twombley and failed to recognize that plaintiffs-appellants had pleaded

causes of action for employment discrimination.

Allegations pleaded “upon information and belief” are permissible

In a case such as this, plaintiffs-appellants’ discrimination claims, whether


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brought under Section 1983 or Title VII should be “analyzed under the now

familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04, 93 S.Ct. 1817(1973). Under McDonnell Douglas and its

innumerable progeny, (1) a plaintiff must first establish a prima facie case of

discrimination; (2) the burden then shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its actions; if the employer does so, the McDonnell

Douglas framework and its presumptions and burdens disappear, leaving the sole

remaining issue of “discrimination vel non;” and, thus, (3) the burden shifts back

to the plaintiff to prove that the employer's stated reason is merely pretextual and

that race discrimination was an actual reason for the adverse employment action.

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097

(2000). Although intermediate evidentiary burdens shift back and forth under this

framework, “[t]he ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all times with the

plaintiff.” Id.

The Twombly plausibility standard, which applies to all civil actions, see

Iqbal, 129 S.Ct. at 1953, does not prevent a plaintiff from “pleading facts alleged

‘upon information and belief’ where the facts are peculiarly within the possession

and control of the defendant”, . see, e.g., Boykin v. KeyCorp, 521 F.3d 202, 215


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(2d Cir.2008), or where the belief is based on factual information that makes the

inference of culpability plausible, see Iqbal, 129 S.Ct. at 1949 (“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 Twombly Court stated that “[a]sking for plausible grounds to infer an

agreement does not impose a probability requirement at the pleading stage; it

simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence of illegal[ity].” Id. 550 U.S. at 556.

Piggy Back or Single Filing

Plaintiff s Adams and Scheiner filed the original lawsuit and/or subsequent

amendments within ninety days of receipt of a Notice of Right to Sue Letter from

the United States Equal Employment Opportunity Commission (“EEOC”) and all

other plaintiffs are permitted to piggy back on these right to sue letters because

their claims allege facts substantially similar to, or nearly identical to, those claims

recognized by the Right to Sue Letters.

Ms. Scheiner submitted her right to sue letter in this amendment as well as

in the prior filing. Her right to sue letter pertains to age discrimination; Adams’

right to sue letter pertains to race claims which would permit . In order to invoke

the single filing rule there must be “[s]ome indication that the grievance affects a


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group of individuals defined broadly enough to include those who seek to

piggyback on the claim.” Tolliver v. Xerox Corp., 918 F.2d 1052, 1058 (2d Cir.

1990). Ms. Scheiner has done this with respect to all of the age discrimination

claims, by her alerting the NYS Division of Human Rights in her complaint as to

the use of the TRCs for older and suspended teachers. The agency’s subsequent

investigation and a finding of the City defendants’ misconduct permit plaintiffs-

appellants to piggy back their claims on Ms. Scheiner’s Right to sue letter.

Age Discrimination Claims

The decision erred by analyzing the age discrimination claims on the basis

of “seniority”. This is the wrong analysis. The proper analysis and the one that the

City defendants recognized is under a “disparate impact” analysis. However, the

City defendants motion to dismiss raises an issue of fact which is not permissible

under a Rule 12 motion Plaintiffs-appellants allege causes of action for age

discrimination under both Section 1983 and ADEA.

The City’s policy of assigning tenured teacher to TRCs is a first step in the

firing or suspension process, may actually appear facially neutral. However,

plaintiffs-appellants may raise the issue of Age Discrimination as a disparate

impact claim because their claim “result[s] from the use of employment practices

that are facially neutral in their treatment of different groups but that in fact fall


-57-

more harshly on one group than another and cannot be justified by business

necessity.” Geller v. Markham, 635 F.2d 1027, 1031 (2d Cir. 1980), cert denied

451 U.S. 945, 101 S.Ct. 2028 (1981) (Citations omitted). “Proof of motive is not

required to sustain a claim of disparate impact.” Id., 635 F.2d at1031.

As this Court stated in Geller, “discriminatory impact may be established by

showing that an employer's facially neutral practice has a disparate impact upon

members of plaintiff’s class, in this case teachers over 40 years of age.” Id., 635

F.2d at1032. (Citations omitted).

The decision mistakenly relied upon the issue of plaintiffs-appellants

“seniority”. The dismissal of the age discrimination claims must be reversed and

discovery permitted “discriminatory impact is frequently evidenced by statistics

from which it may be inferred that an employer's selection methods or employment

criteria result in employment of a larger share of one group (here, teachers under

40 years of age) than of another (teachers over 40).” Id. An employer facing a

disparate impact claim must produce evidence that reasonable factors other than

age motivated the unlawful action and also persuade the fact finder of the merits of

the defense. Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 128 S.Ct.

2395 (2008).

Plaintiffs-appellants plaintiffs have been treated differently than other


-58-

employees because of their age. This treatment known as “disparate treatment” is

available as a means of redress under ADEA which provides that, “[i]t shall be

unlawful for an employer ... to fail or refuse to hire or to discharge any individual

or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's age.”

29 U.S.C. § 623(a)(1). Disparate treatment is cognizable as a cause of action under

ADEA. See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct 1701

(1993). “There may well be cases in which seniority is simply a code word for age

discrimination.” Ludovicy v. Dunkirk Radiator Corp., 922 F.2d 109, 111 (2d Cir.

1990) (Citations omitted)(Internal quotations omitted). The court must reinstate

the age discrimination claims under either an equal protection or under ADEA.

Race and National Origin Claims

The Decision erroneously dismissed Ms. Robinson and Mr. Ebewo’s Race

Claims by failing to recognize not only the right to sue letters obtained by Ms.

Adams. These claims can also be raised under either Sections 1981 or 1983.

Consequently they have properly raised these claims.

Polito’s Discrimination Claims Should Be Reinstated

Ms. Polito obtained a right to sue letter based upon incidents that occurred


-59-

within 300 days of the filing of the FAC. Thus, her Causes of Action for to gender

and race discrimination to proceed. See e.g., Holowecki v. Federal Exp. Corp., 440

F.3d 558, 561 (2d Cir).

Hostile Work Environment Claims

All prior allegations of the FAC are realleged as if fully set forth in the

cause of action for hostile work environment. The decision erroneously dismissed

hostile work environment claims by failing to recognize that these claims were

related to the Title VII, ADEA Sections 1981 and 1983 claims. See Harris v.

Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367 (1993) (Hostile work

environment claim and gender claim); R.S. v. Board of Educ. of Hastings-On-

Hudson Union Free School Dist., 371 Fed.Appx. 231, 233 (2d Cir. 2010) (Hostile

work environment claim with Section 1983 equal protection claim); Fincher v.

Depository Trust and Clearing Corp., 604 F.3d 712 (2d Cir. 2010) (Hostile work

environment claim with Section 1981 claim).

8. THE DISTRICT COURT ERRED BY DENYING PLAINTIFFS-APPELLANTS’ REQUEST FOR LEAVE TO AMEND THEIRCOMPLAINT

Denial of leave to Amend a Pleading is reviewed for an abuse of discretion.

Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009). A court should freely give


leave to amend when justice so requires. Id. In the matter on appeal, plaintiffs-

appellants' present counsel has prepared one complaint for then1, the F AC. The

F AC was merely a version of the Third An1ended Complaint that was drawn to

streamline it with new headings to clearly identify the defendant charged in each

Cause of Action. All scheduling Orders were complied with and given the

important considerations at stake, the District Court abused its discretion by

denying leave for counsel to amend the complaint.

CONCLUSION

For the foregoing reasons, the order of the trial court granting defendants'

motions to dismiss should be reversed and the cause remanded for further

proceedings.

Dated: Bronx, NY

April 8, 2011

Respectfully submitted,

LAW OFFICES OF NICHOLAS A. PENKOVSKY, P.C.

By: Ih~ t? ~~J~ Nicholas A. Penkovsky, Esq., Bar Number 05-177878

Attorneys for Plaintiffs-Appellants, Michael Ebewo, Joann Hart, Julianne Polito, Thomasina Robinson, and Brandi Scheiner

314 West 231 8t Street, Suite 346

Riverdale, New York 10463

Tel. (347) 603-7676

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leave to amend when justice so requires. Id. In the matter on appeal, plaintiffs-

appellants' present counsel has prepared one complaint for then1, the F AC. The

F AC was merely a version of the Third An1ended Complaint that was drawn to

streamline it with new headings to clearly identify the defendant charged in each

Cause of Action. All scheduling Orders were complied with and given the

important considerations at stake, the District Court abused its discretion by

denying leave for counsel to amend the complaint.

CONCLUSION

For the foregoing reasons, the order of the trial court granting defendants'

motions to dismiss should be reversed and the cause remanded for further

proceedings.

Dated: Bronx, NY

April 8, 2011

Respectfully submitted,

LAW OFFICES OF NICHOLAS A. PENKOVSKY, P.C.

By: Ih~ t? ~~J~ Nicholas A. Penkovsky, Esq., Bar Number 05-177878

Attorneys for Plaintiffs-Appellants, Michael Ebewo, Joann Hart, Julianne Polito, Thomasina Robinson, and Brandi Scheiner

314 West 231 8t Street, Suite 346

Riverdale, New York 10463

Tel. (347) 603-7676

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CERTIFICATION

I, Nicholas A. Penkovsky, counsel of record for plaintiffs-appellants

Michael Ebewo, Joann Hart, Julianne Polito, Thomasina Robinson, and Brandi

Scheiner, do hereby certify that the foregoing brief is an oversized brief

and complies with the Order of this Court dated 8 day of April, two thousandth

eleven before Raymond J. Lohier, Jr., Circuit Judge permitting Appellants to file

an oversized brief of up to 60 pages. The total number of words in the foregoing

brief is not more than 11, 811.

/s/ Nicholas A. Penkovsky

Nicholas A. PenkovskyBar Number 05-177878


SPECIAL APPENDIX


i

SPECIAL APPENDIX TABLE OF CONTENTS

Page

Decision and Order of the Honorable Victor Marrero, dated November 18, 2010 ....................... SPA-1

Judgment, entered November 30, 2010 ..................... SPA-24


Case 1:08-cv-05996-VM-AJP Document 280 Filed 11/18/10 Page 1 of 23

SPA-1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X TWANA ADAMS, et al.,

Plaintiffs,

against

NEW YORK STATE EDUCATION DEPARTMENT, et al.,

Defendants. -----------------------------------X

r

: ')OC :;;; .+1 _--:-_..........,=-; l~f\'T~: F: ,:;b· /1~ g -lo . ::.=" "~~:~::.;;:::f:;;::::::::::::-:~:.=.::::-::~: '<~~<

08 Civ. 599f(VM)

DECISION ~ ORDER

VICTOR MARRERO, United States District Judge.

I . BACKGROUND

Plaintiffs Twana Adams ("Adams" ) and I h" Josef> ~na Cruz

("Cruz"), and Michael Ebewo ("Ebewo"), Joanne Hart ("Hart"),

Julianne Polito ("Polito"), Thomasina Robinson ("J,obinson")'

and Brandi Scheiner ("Scheiner") 1 (collectively, "p~aintiffsll)

brought this action against the New York State\ Education

Department ("NYSED" ) and certain NYSED officials

(collectively, the "State Defendants"), and the c[ity of New I

York (the "City") , the City's Department of Educat~on ("DOE")

Adams and Cruz (together, the "Hochstadt Plaintiffs") are\ represented in this action by Attorney Joy Hochstadt ("Hochstadt"), while IEbewo, Hart, Polito, Robinson, and Scheiner (together, the "Penkovsky Plailntiffs") are separately represented by Attorney Nicholas penkovsky ("penkdvsky"). The two groups of Plaintiffs assert some claims common to all, so~ pertaining to one group and not the other, and some pertaining individu~lly to some members of each group but not the others. Prior to defendants' filing of the motions to dismiss at issue here, members of both groups ~ropped some of their claims, but not necessarily the same ones withdrawn by the other. The specific claims made by Plaintiffs individually and coll~ctively are detailed in their Fourth Amended Complaint and, to the extent 1 such claims remain in the action, summarized in the Report and Recomnjendation of Magistrate Judge Andrew Peck described below.



SPA-2

and certain City and DOE officials (collectively,! the "City

Defendants") . In their Fourth Amended Complaint, I Plaintiffs I

assert claims alleging various deprivations by th1 State and

City Defendants of Plaintiffs' rights arising underlthe United I

States Constitution, specifically procedural due ~rocess of

freedom of speech, and I

involuntary servitude, as well as violations $f federal

law, equal protection of the laws,

! statutes prohibiting discrimination on the basis of race,

I gender, age, disability and national origin. ~laintiffs'

claims arise from their placement in Temporary Re!asSignment

Centers ("TRCs"), so-called "Rubber Rooms," pendihg NYSED's I

adjudication of disciplinary proceedings broug~t against

Plaintiffs by DOE.2

By Order dated August 23, 2010, Magistrate Ju~ge Andrew

Peck, to whom this matter had been referred for supe~vision of I

pretrial proceedings, issued a Report and Recommendrtion (the

"Report"), a copy of which is attached and iniorporated

herein, recommending that the motions of DOE andi NYSED to

2 The relevant facts, prior proceedings and procedural I background regarding this litigation are set forth in an earlier decirion of the Court adopting the Report and Recommendation of Magistrate J~dge Andrew Peck dated February 23, 2010, in Magistrate Judge Peck's I Report and Recommendation of that date, as well as in the Report and Recpmmendation at issue here. See Adams v. New York State Educ. Dep't, 630 F. Supp. 2d 333 (S.D.N.Y. 2009); Adams v. New York State Educ. Dep't, 08 Civ. 5996, 2010 WL 624020 (S.D.N.Y. Feb. 23, 2010); Adams v. New York tate Dep't, 705 F. Supp. 2d 298 (S.D.N.Y. 2010).

-2-



SPA-3

dismiss Plaintiffs' Fourth Amended Complaint be gJanted. The

Report further recommends that the Court den~ leave to

replead, and directed Plaintiffs I to show cause why sanctions !

against them or their counsel under Federal Ru~e of Civil

Procedure 11 should not be imposed. plaintiffs f~led timely

objections to the Report. 3 For the reasons statedl below, the !

Court adopts the recommendations of the Report in their

entirety.

II. STANDARD OF REVIEW

A district court evaluating a Magistrate JUd~e'S report

may adopt those portions of the report to which nOI "specific,

written objection" is made, as long as the factual and legal

bases supporting the findings and conclusions s1t forth in

! those sections are not clearly erroneous or contrary to law.

Fed. R. Civ. P. 72(b) i see also Thomas v. Arn, 471 u.s. 140,

149 (1985) i Greene v. WCI Holding Corp., 956 F. Supp. 509, 513 I

(S.D.N.Y. 1997) "Where a party makes a 'speci~ic written

objection after being served with a I

copy of

hdwever,

the

[magistrate judge's] recommended disposition,' the

district court is required to make a de novo deiermination

regarding those parts of the report." Cespedes v.! Coughlin,

3 Penkovsky filed a brief on behalf of the five Plaintiffs he \represents. Hochstadt filed a one-page Declaration on behalf of Adams and:Cruz joining in Penkovsky's submission. !

-3-



SPA-4

956 F. Supp. 454, 463 (S.D.N.Y. 1997) (citing United States v.

Raddatz, 447 U.S. 667, 676 (1980»; Fed. R. Civ. P. 72(b).

The Court is not required to review any portion of a

Magistrate Judge's report that is not the subject of an

objection. See Thomas, 474 U.S. at 149. A district judge may

accept, set aside, or modify, in whole or in part, the

findings and recommendations of the Magistrate Judge as to

such matters. See Fed. R. Civ. P. 72(b) i DeLuca v. Lord, 858

F. Supp. 1330, 1345 (S.D.N.Y. 1994).

III. DISCUSSION

Upon de novo review of the full factual record in this

litigation, including the pleadings and the parties'

respective papers submitted in connection with the underlying

motions to dismiss in this proceeding, as well as the Report

and applicable legal authorities, the Court concludes that

dismissal

warranted.

of Plaintiffs' Fourth Amended Complaint is

A summary of earlier proceedings in this litigation may

help as backdrop for the Court's ruling which follows. By

Decision and Order dated April 6, 2010, this Court adopted the

previous Report and Recommendation of Magistrate Judge Peck

dated February 23, 2010, which recommended dismissal of

Plaintiffs' pro se Second Amended Complaint. However, the

-4-



SPA-5

Court did not accept the recommendation that leave to replead

should be denied. At that time, Plaintiffs sought an

opportunity to retain counsel to assist them in preparing a

revised complaint, and, aided by counsel, Plaintiffs filed a

Third Amended Complaint, which Magistrate Judge Peck reviewed

and still found deficient in substantial respects. By Order

dated May 13, 2010, Magistrate Judge Peck not only granted

Plaintiffs leave to file a Fourth Amended Complaint, he also

offered detailed guidance regarding the relevant pleading

standards as well as analysis of substantive law, and

specified how the pleadings could be restated to address the

deficiencies he had identified. In that same Order,

Magistrate Judge Peck put Plaintiffs on notice of the prospect

of sanctions pursuant to Federal Rule of Civil Procedure 11 in

the event their amended pleadings, without stating new facts

or law, merely retreaded claims previously dismissed, thus

doing nothing more than reargue matters that had already been

resol ved against them. Largely ignoring the law primer

Magistrate Judge Peck had provided, and despite the Magistrate

Judge's strong warnings of the potential for sanctions,

Plaintiffs, in their Fourth Amended Complaint, substantially

-5-



SPA-6

failed to heed the Magistrate Judge's guidance. 4

Had Plaintiffs paid closer attention to the critiques of

their earlier pleadings laid out by Magistrate Judge Peck and

this Court in previous rulings, they could have avoided at

least some of the more grievous flaws embodied in the Fourth

Amended Complaint. It is not necessary for the Court to

belabor those defects here because they are already

sufficiently detailed in the lengthy Report, the factual

content and legal analysis of which the Court has adopted as

its own, and because those shortcomings were borne out in the

Court's own de novo review of the Fourth Amended Complaint,

motion papers and other relevant documents on the record.

Here, the Court highlights some of the deficiencies in

general terms to offer an overview of its findings of proper

grounds for dismissal. By way of some salient examples, the

Fourth Amended Complaint reasserts claims that: continue to

mistate or omit necessary elements to sufficiently plead

The Court acknowledges that Plaintiffs did make attempts in the Fourth Amended Complaint to streamline their pleadings, and to add factual allegations necessary to flesh out some claims. But while the current version is a far cry from the pro se complaint the Court had dismissed, Plaintiffs' efforts still fall short. This may suggest that plaintiffs failed to take the steps required to sufficiently cure deficient pleadings, or it may simply reflect the reality that no amount of restatement of certain remaining claims could prove fruitful. It is also conceivable that Plaintiffs left some of the claims in the Fourth Amended Complaint substantially unchanged so as to preserve them on appeal. However, although Plaintiffs were instructed to identify any portions of their amended pleadings that retained any claims unaltered for this purpose, they failed to so indicate.

-6-



SPA-7

certain of its causes of action; are time-barred by applicable

statutes of limitations; name as defendants State agencies or

officials whose public duties are protected by constitutional

immunity, or City officials who clearly had no direct personal

involvement in the wrongs Plaintiffs allege; challenge the

constitutionality of a provision of the New York Education Law

on the basis of a decidedly incorrect standard of review i

allege unlawful employment discrimination claims based on

race, age, gender or national origin without adequately

specifying what role race, age, gender or national origin

played in the conduct Plaintiffs assail, or filed against

State agencies or officials not qualifying as their employer,

and invoke rights under constitutional provisions, such as the

Thirteenth Amendment's prohibition against involuntary

servitude, or under other federal statutory law, such as

hostile work environment discrimination, that on their face

have no application to the facts presented, and that thus

assert claims palpably frivolous.

Moreover, as the Report also notes with particularity,

the Court finds numerous instances of fatal errors and

omissions in the briefs both groups of Plaintiffs filed in

response to Defendants' motions. Repeatedly, their papers

fail to address substantive grounds raised by Defendants'

-7-



SPA-8

motions, thereby supporting a finding that the underlying

claims have been abandoned. Plaintiffs' opposition briefs

also impermissibly introduce into the litigation for the first

time substantial factual allegations, legal theories and

claims not stated in the Fourth Amended Complaint. Indicative

of these failings, Hochstadt's brief consists primarily of a

polemic that fills 50 pages swelled with accusations attacking

New York school politics and policies while only collaterally

and rhetorically touching upon legal points germane to

Plaintiffs' claims.

Plaintiffs' objections to the Report raise two issues

that do merit more particular consideration because they

contend that Magistrate Judge Peck engaged in impermissible

fact-finding. As regards their claims alleging First

Amendment violations, Plaintiffs ~ssert that in determining

that the speech in question related to internal school

matters, rather than to issues of more general public concern,

the Report failed to assume facts as Plaintiffs alleged them.

Specifically, Adams's allegations of retaliation are based on

her complaining to her principal that a predominantly white

school occupying the same building as her predominantly

African-American school had better facilities than those

-8-



SPA-9

available in her school.s Polito alleged that she suffered

retaliation when she complained to DOE's Office of Special

Investigations charging that her principal had falsified her

school's students' attendance and grade records. Robinson

alleged that she challenged an instruction by her principal

directing her to make improper changes of her students'

grades.

Polito and Robinson contend that it was not part of their

job description to make such complaints, and argue that when

they did report their principals' misconduct on those

occasions they were not speaking on their own behalf, but on

behalf of their students. Thus, they argue that these

allegations should not be dismissed absent discovery needed to

develop a fuller record documenting the scope of their job

duties as teachers.

These Plaintiffs' conclusory statements that making the

complaints in question did not fall within the scope of their

job descriptions does not end the inquiry so as to

automatically defeat a motion to dismiss and entitle them to

5 The Report recommends dismissal of Adams's First Amendment claim because she did not respond to Defendants' motion to dismiss as to this claim and thus that the claim should be deemed abandoned. See Report at 59. Because the Court's review confirms the Report's finding in this regard, the Court dismisses Adams's First Amendment claim on this ground and will not address it further below. Consequently, the references to Plaintiffs in the remaining discussion of the First Amendment claims pertain only to those asserted by Polito and Robinson.

-9-



SPA-10

discovery on this issue. Reviewing such First Amendment

retaliation claims brought by public employees, the Supreme

Court and the Second Circuit have recently provided clear

instructions articulating the standards that govern a court's

determination of whether a particular public employee's speech

is expressed as a private citizen addressing a matter of

general public concern and thus shielded by the First

Amendment, or else made pursuant to his official job duties

and consequently beyond the ambit of constitutional

protection. This guidance is relevant in the Court's

evaluation pursuant to the Twombly/Iqbal plausibility rule to

test the sufficiency of a cause of action alleging unlawful

retaliation under the First Amendment. See Ashcroft v. Iqbal,

129 S. Ct. 1937 (2009) i Bell Atlantic Corp. v. Twombly, 550

U.S. 544 (2007).

In Garcetti v. Ceballos, the Supreme Court reaffirmed

that "the First Amendment protects a public employee's right,

in certain circumstances, to speak as g citizen addressing

matters of public concern." 547 U.S. 410, 417 (2006)

(emphasis added). Elaborating on the scope of that protection,

the Court narrowed its bounds i it held that "when public

employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First Amendment

-10-



SPA-11

purposes, and the Constitution does not insulate their

communications from employer discipline." Id. at 421. The

Garcetti Court further defined speech made "pursuant to" a

public employee's job duties as "speech that owes its

existence to a public employee's professional

responsibilities." Id. Though the Court declined to

"articulate a comprehensive framework" for this assessment, it

counseled that the applicable test is a "practical one," and

explained that:

[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.

Id. at 424-25.

Applying Garcetti, the Second Circuit has declared that

"speech can be made 'pursuant to' a public employee's official

job duties even though it is not required by, or included in,

the employee's job description, or in response to a request by

the employer." Weintraub v. Board of Ed., 593 F.3d 196, 203

(2d Cir. 2010). In Weintraub, the Circuit Court held that the

plaintiff, a public school teacher who had filed a union

grievance against his supervisor for failure to discipline a

student in Weintraub's classroom, was speaking "pursuant to"

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SPA-12

his official duties and thus not as a private citizen. rd. at

203. Like Plaintiffs here, Weintraub asserted that he did not

file his complaint pursuant to his official duties because his

responsibilities as a school teacher did not require him to

lodge such complaints, and because nothing in his job

description or the Board of Education's rules unequivocally

stated that the speech for which he claimed retaliation was

made pursuant to his duties as a public school teacher. The

Second Circuit rejected those arguments, finding that

Weintraub's grievance constituted "'part-and-parcel of his

concerns about his ability to properly perform his duties. '11

rd. (citation omitted) .

To distinguish unprotected speech from some expressions

related to a speaker's public job that may be safeguarded by

the First Amendment, the Weintraub Court pointed to Garcetti' s

observation that '" [w] hen a public employee speaks pursuant to

employment responsibilities ... there is no relevant analogue

to speech by citizens who are not government employees,'" rd.

at 203 (quoting Garcetti, 547 U.S. at 424). Under this test,

the Second Circuit found that Weintraub's lodging of his

grievance was "not a form or channel of discourse available to

non-employee citizens," and that, rather than voicing his

complaint through public means available to citizens

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SPA-13

generally, what weintraub had expressed, primarily as a public

school teacher rather than as a private citizen, was "an

internal communication" governed in the first instance by

employer policy. Id. at 204.

Significant for a resolution of the instant motions, the

Circuit Court characterized the issue of whether a public

employee has spoken pursuant to official duties as an

"objective inquiry." Id. at 202. To this Court, this guidance

means that the Court is permitted to resolve a motion to

dismiss a First Amendment retaliation claim as a matter of law

under the Twombly/Iqbal plausibility analysis by making an

objective, practical and common sense appraisal of a public

employee's official duties, and not relying solely on the

factual or conclusory allegations contained in Plaintiffs'

pleadings about what their job description includes or does

not provide for as part of their official duties.

In determining whether a claim is plausible, the Court

must evaluate the substantive elements plaintiffs must plead

to sufficiently state a prima facie cause of action, an

examination which is contextually grounded on applicable case

law. See Iqbal, 129 S. Ct. at 1947. Here, Garcetti

prescribes the substantive "pursuant to" element that governs

the content of a properly stated First Amendment retaliation

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SPA-14

claim, and that, along with Weintraub, elaborates further case

law context to guide the Court's plausibility assessment.

In the light of the unequivocal and controlling

instructions Garcetti and Weintraub provide to direct the

Court's "objective inquiry," Weintraub, 593 F.3d at 202, the

on the issue before it, the Court is not persuaded by

Plaintiffs' contention that it must accept as decisive fact

their assertion that their job description as teachers did not

provide for Plaintiffs' making the complaints at issue, and

that discovery and further proceedings are necessary to create

a fuller factual record for the Court to properly consider

this point. In this Court's view, when the substantive

elements embodied in Plaintiffs' retaliation claim are weighed

against the applicable case law, the facts as pled in the

Fourth Amended Complaint are insufficient "to raise a

reasonable expectation that discovery will reveal evidence of

illegal [ity] ." Twombly, 550 U. S. at 556. As a starting

point, for the purposes of this analysis the Court accepts as

true Plaintiffs' factual allegations as now described in the

Fourth Amended Complaint concerning the expressions for which

they suffered retaliation. Under the Twombly/Iqbal standard

Plaintiffs may be entitled to seek relief under the First

Amendment if they can state a claim "plausible on its face."

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SPA-15

Twombly, 550 U.S. at 570. To do so they must sufficiently

show that in connection with the speech at issue, they were

speaking as private citizens rather than as public employees

and that their statements were not made "pursuant to" their

job duties. In other words, Plaintiffs must show that their

professional responsibilities as public school teachers did

not encompass calling to their supervisors' attention the

misconduct of their principals pertaining to student records

for which Plaintiffs alleged retaliation.

In the Court's analysis, Plaintiffs' First Amendment

claim as pled is not plausible on its face because it does not

comport with a practical test of objective experience nor

with common sense -- the controlling guidance that applicable

case law prescribes. See Iqbal, 129 S. Ct. at 1950 (declaring

that in determining the plausibility of a claim under the

Twombly/Iqbal rule, courts may view the plaintiff's factual

allegations in the light of the court's "judicial experience

and common sense.").

Court's conclusion.

Two maj or considerations compel the

First, under Iqbal, and when viewed

within the legal framework provided by Garcetti and Weintraub,

Plaintiffs' conclusory allegation that it was not part of

their job description to complain to supervisors within the

chain of command or pursuant to employer policy about their

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SPA-16

principals' improper conduct in question" [is] not entitled to

an assumption of truth." Iqbal, 129 S. Ct. at 1950. Garcetti

expressly counsels that formal job descriptions "often bear

little resemblance the duties an employee actually is expected

to perform," and that the listing of a specific task in a job

description "is neither necessary nor sufficient" to

demonstrate that performing the particular task at issue falls

within the scope of the employees official duties for First

Amendment purposes. 547 U.S. at 424-25 (emphasis added).

Just as explicitly, Weintraub instructs that speech can be

made "pursuant to" a public employee's official duties even if

"not required by, or included in," the employee's job

description. 593 F.3d at 203. Accordingly, in passing upon

the sufficiency of Plaintiffs' First Amendment retaliation

claim, it is not the case that the Report, or the Court on

this occasion, has impermissibly engaged in fact-finding or

failed to assume as true Plaintiffs' factual allegations as

pled. Rather, the Court expresses a determination that, for

the reasons stated, it cannot assume the truth of particular

facts as alleged by Plaintiffs.

Second, even if the Court did accept all of Plaintiffs'

factual allegations as pled, it nonetheless finds their First

Amendment claim as a whole implausible for other reasons.

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SPA-17

Analogous to swallowing a poison pill, for the purposes of

this analysis assuming the truth of a fallacy embodied in a

supposed factual allegation actually works to invalidate the

entire claim by rendering it implausible, if not bizarre. To

elaborate further, Plaintiffs cannot plausibly show, as was

the case in weintraub as well, that the complaints they filed

with school authorities alleging that their principals were

"falsifying attendance records and raising students' grades to

grades that the students had not legitimately earned," did not

relate to Plaintiffs' responsibilities as public school

teachers. (Plaintiffs' Objections to Magistrate's Report and

Recommendations Dated August 23, 2010, dated September 29,

2010, at 16, 17). In this connection, the Court notes that in

voicing those complaints, Plaintiffs assert that they spoke to

their principals or administrators, not to sources external to

the public school system. To that extent, what they expressed

in each instance constituted an "internal communication"

conveyed through a channel of discourse not available to non-

employee citizens. Weintraub, 593 F.3d at 204. This

circumstance further undercuts the plausibility of Plaintiffs'

showing that they uttered the speech at issue as private

citizens rather than as public school teachers.

Accordingly, the Court concludes that, based on the

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SPA-18

objective inquiry Weintraub instructs, it cannot find

plausibility in Plaintiffs' First Amendment claim based on

their allegations about the scope of their professional duties

as teachers. Only in an odd Wonderland world could a court of

law find it plausible that a public school principal's

explicit order to a teacher directing her to falsify her own

students' grades "has no bearing" on the teacher's official

responsibilities as a teacher, or that in such a case the

teacher's "job duties were to obey the principal or face

insubordination charges" (rd. at 17.) Arguably, on objective

consideration Plaintiffs' contention regarding the scope of

their professional duties might have plausible bearing as

applied to a complaint about falsification of student records

lodged with the principal by a school custodian or crossing

guard, or to a teacher's report to school officials alleging

that a principal beat his spouse at home. But for the

purposes of reviewing the instant motions, this Court cannot

find plausible the necessary implications of Plaintiffs' First

Amendment claim as it pertains to a teacher speaking within

the practical domain of what reason and common sense would

classify as the proper scope of a teacher's duties: that a

public school principal's direction to a teacher to falsify

her students' grades and attendance records is none of that

-18-



SPA-19

teacher's business. Thus, here closer to home, Plaintiffs'

argument would suggest that New York's public school system

operates akin to a military regime, with principals as

martinets and the teachers as obedient good soldiers, their

official duties encompassing only those responsibilities

minutely spelled out in a written code, and demanding

mechanical compliance with all orders of the principal except

as they relate to any tasks specifically excluded by the job

description as beyond the scope of the teacher'S official

roles. Under Iqbal's "common sense" counsel, as well as under

Garcetti's "practical" test, that proposition cannot hold.

Plaintiffs' cannot plausibly establish that their complaining

about a principal's falsification of student grades or

attendance records is not "part-and-parcel" of their concerns

as school teachers. Weintraub, 593 F.3d at 203.

The second of Plaintiffs' objections to the Report that

the Court will address more specifically relates to their

Fourteenth Amendment due process claim. In reviewing this

cause of action as stated in the Fourth Amended Complaint, the

Report, relying on O'Connor v. Pierson, 426 F.3d 187 (2d Cir.

2005), found no deprivation of property rights as regards to

Plaintiffs' employment as tenured teachers because Plaintiffs

were not terminated prior to the conclusion of their

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SPA-20

disciplinary hearings, but instead were relieved of their job

duties and transferred to the TRC's while maintained on fully

paid leave. In O'Connor, the Second Circuit stated that "no

court has held that an employee on fully paid leave has been

deprived of a property right merely by virtue of being

relieved of his job duties." rd. at 199.

Plaintiffs' objections to the Report point to a footnote

in O'Connor in which the Circuit Court noted that a teacher

suspended with pay but who resigns may have grounds to bring

a procedural due process claim as if actually fired from his

job if he can state a claim of constructive discharge. See

id. at 200 n.5 (citing Parrett v. City of Connersville, 737

F.2d 690, 694 (7th Cir. 1984». But, though in opposition to

dismissal of their due process claim Plaintiffs now rely on

language from Parrett to support their proposition that they

were unconstitutionally deprived of a property interest in

their positions as tenured teachers while suspended with pay,

the Court finds no provision in the Fourth Amended Complaint

in which Plaintiffs expressly assert constructive discharge

either as a distinct claim or as a theory of liability.

Nonetheless, even if any of their allegations could be fairly

construed to state such a claim, the Court is not persuaded

that the circumstances alleged here would come remotely close

-20-



SPA-21

to those presented in Parrett to satisfy the rigorous test of

sufficient deliberate, abusive or otherwise intolerable

working conditions that must exist to justify an involuntary

resignation, thus warranting an application of the

constructive discharge doctrine. See Chertkova v. Connecticut

General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996); Stetson

v. Nynex Servo Co., 995 F.2d 355, 360 (2d Cir. 1993).

The Court notes that except for Robinson and Scheiner,

none of the Plaintiffs actually resigned involuntarily from

their positions prior to the resolution of their disciplinary

hearings. Rather, they remained on fully paid leave at all

times. Moreover, even if any of the Plaintiffs could establish

a deprivation of property by means of constructive discharge

for the purposes of Fourteenth Amendment analysis, they

nonetheless could not sufficiently state such a claim if they

received all the process of law that was due under the

circumstances.

737 F. 2d at

See O'Connor,

695-96. Here,

426 F.3d at 198-200; Parrett,

the Court is persuaded that

Plaintiffs could not make out a sufficient claim of denial of

due process, for either pre- or post-deprivation loss of

property, in view of their having received all the process

that was due through the availability of adequate remedies

provided under Article 78 of the New York State Civil

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SPA-22

Procedure Law and Rules, both to challenge as unreasonable the

pre-deprivation delays they experienced, or to attack their

resignations as coerced. See New York State Nat/l Org. for

Women v. Pataki, 261 F. 3d 156, 168 (2001), Giglio V. Dunn, 732

F.2d 1133, 1135 (2d Cir.), cert. denied, 469 U.S. 932 (1984).

Accordingly, for substantially the reasons set forth in

the Report, the Court grants the motions of DOE and NYSED to

dismiss Plaintiffs' Fourth Amended Complaint herein.

IV. ORDER

For the reasons discussed above, it is hereby

ORDERED that substantially for the reasons stated in the

Report and Recommendation of Magistrate Judge Andrew Peck

dated August 23, 2010 (the "Report," Docket No. 237), the

motions of defendants New York State Education Department,

Richard P. Mills, David Steiner and Deborah Marriott (Docket

No. 217), and of defendants New York City Department of

Education, Michael Bloomberg, and Joel Klein (Docket No. 214),

to dismiss the Fourth Amended Complaint of plaintiffs Twana

Adams, Josephina Cruz, Michael Ebewo, Joanne Hart, Julianne

Polito, Thomasina Robinson, and Brandi Scheiner (collectively,

"Plaintiffs") without leave to replead are GRANTEDi and it is

further

-22-



SPA-23

ORDERED that Plaintiffs' objections to the Report (Docket

Nos. 251 and 252) are DENIED; and it is finally

ORDERED that the Clerk of Court is directed to dismiss

Plaintiffs' Fourth Amended Complaint with prejudice.

SO ORDERED.

Dated: NEW YORK, NEW YORK 18 November 2010

/ ~.

Victor Marrero U.S.D.J.

-23-



SPA-24

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X 1W ANA ADAMS, et aI.,

Plaintiffs,

-against-

NEW YORK STATE EDUCATION DEPARTMENT, et aI.,

Defendants. -----------------------------------------------------------X

"USDC SONY DOCU'\1ENT ELECTRONICALLY FILED

)\ ~~~:~lLED;---'ln.,;:-

08 CIVIL 5996 (VM)

JUDGMENT

Whereas on August 23, 2010, the Honorable Andrew J. Peck, United States Magistrate

Judge, having issued a Report and Recommendation (the "report") recommending that the

motions of DOE and NYSED to dismiss plaintiffs' Fourth Amended Complaint, and that the Court

deny leave to replead, and directed plaintiffs to show cause why sanctions against them or their

counsel under Fed. R. Civ. P. II should not be imposed, and the matter having come before the

Honorable Victor Marrero, United States District Judge, and the Court, on November 18, 2010,

having rendered its Decision and Order adopting the report, granting the motions of defendants New

York State Education Department, Richard P. Mills, David Steiner and Deborah Marriott, and of

defendants New York City Department of Education, Michael Bloomberg, and Joel Klein, to dismiss

the Fourth Amended Complaint of plaintiffs TwanaAdams, Josephina Cruz, Michael Ebewo, Joanne

Hart, Julianne Polito, Thomasina Robinson, and Brandi Schemer without leave to replead, denying

Plaintiff s' objections to the Report, and directing the Clerk of Court to dismiss Plaintiffs' Fourth

Amended Complaint with prejudice, it is,

ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the

Court's Decision and Order dated November 18, 2010, the report is adopted; the motions of



SPA-25

defendants New York State Education Department, Richard P. Mills, David Steiner and Deborah

Marriott, and of defendants New York City Department of Education, Michael Bloomberg, and Joel

Klein, to dismiss the Fourth Amended Complaint of plaintiffs Twana Adams, Josephina Cruz,

Michael Ebewo, Joanne Hart, Julianne Polito, Thomasina Robinson, and Brandi Schemer without

leave to replead are granted; Plaintiff s' objections to the Report are denied; and Plaintiffs' Fourth

Amended Complaint is dismissed with prejudice.

Dated: New York, New York Novemher 29, 2010

RUBY J. KRAJICK

Clerk of Court BY: ~~

Deputy Clerk

THIS D0CUME." I WAS ENTERED ON THE DOCKET ON ___ _


STATE OF NEW YORK COUNTY OF NEW YORK

) ) )

ss.:

AFFIDAVIT OF SERVICE BY MAIL

I, Mariana Braylovskiy, being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age and resides at the address shown above or at

On April 8, 2011 deponent served the within: Brief and Special Appendix for Plaintiffs-Appellants Michael Ebewo, Joanne Hart, Julianne Polito, Thomasina Robinson and Brandi Scheiner

upon: JOSEPHINA CRUZ Plaintiff-Appellant Pro Se 301 Cathedral Parkway, #1J New York, New York 10026 the address(es) designated by said attorney(s) for that purpose by depositing 2 true copy(ies) of same, in a postpaid properly addressed wrapper in a Post Office Mail Depository, under the exclusive custody and care of the United States Postal Service, within the State of New York. This document was also submitted via the CM/ECF Case Filing System. Filing and service were performed by direction of counsel. Sworn to before me on April 8, 2011

Maryna Sapyelkina Notary Public State of New York

No. 01SA6177490 Qualified in Kings County

Commission Expires Nov. 13, 2011

Job #235645


STATE OF NEW YORK COUNTY OF NEW YORK

) ) )

ss.:

AFFIDAVIT OF CM/ECF SERVICE

I, Mariana Braylovskiy, being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age.

On April 8, 2011 deponent served the within: Brief and Special Appendix for Plaintiffs-Appellants Michael Ebewo, Joanne Hart, Julianne Polito, Thomasina Robinson and Brandi Scheiner

upon: See attached Service List

via the CM/ECF Case Filing System. All counsel of record in this case are registered CM/ECF users. Filing and service were performed by direction of counsel. Sworn to before me on April 8, 2011

Maryna Sapyelkina Notary Public State of New York

No. 01SA6177490 Qualified in Kings County

Commission Expires Nov. 13, 2011

Job # 235645


SERVICE LIST: SUDARSANA SRINIVASAN, ESQ. NEW YORK STATE OFFICE OF THE

ATTORNEY GENERAL Attorney for Defendants-Appellees

New York State Education Department, A division / organ of the State of New York, Richard Mills, Commissioner of Education, Teacher Tenure Hearing Unit, Deborah A. Marriott, Manager and David M. Steiner, Commissioner of Education

120 Broadway New York, New York 10271 (212) 416-8000 RONALD EMANUEL STERNBERG NEW YORK CITY LAW DEPARTMENT Attorney for Defendants-Appellees Michael Bloomberg, City of New York, New York City

Department of Education and Joel Klein 100 Church Street New York, New York 10007 (212) 788-0303


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