Opinion
101313/07.
Decided April 30, 2008.
Edward H. Wolf, Esq. Wolf Wolf, New York, For Plaintiff.
Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, New York, By: Jennaydra D. Clunis, Esq., For Defendant.
Defendant New York City Department of Education's motion to dismiss plaintiff's complaint pursuant to CPLR § 3211 (a) (5) and (7) is granted in part and denied in part, and plaintiff's cross-motion for leave to further amend her complaint is denied, as set forth more fully below.
Plaintiff, a tenured teacher employed by defendant New York City Department of Education (hereinafter "DOE"), brought this action alleging that her employer retaliated against her for lawful and protected speech in violation of the Civil Service Law § 75 and 42 U.S.C. § 1983. It should be noted that plaintiff filed her original summons and complaint pro se, but filed and served an amended summons and complaint by counsel. For purposes of this motion, therefore, the Court relies on plaintiff's amended summons and complaint.
The DOE moves to dismiss the complaint in its entirety pursuant to CPLR § 3211, on the grounds that plaintiff's action is barred by the doctrines of collateral estoppel and res judicata, that the complaint fails to state a cause of action, and that plaintiff's claims are, in part, barred by the statute of limitations. Plaintiff opposes the motion and cross-moves for leave to file and serve a second amended complaint pursuant to CPLR § 3025, alleging retaliation in violation of Education Law § 3028-d and Administrative Code of the City of New York § 12-113. The DOE opposes plaintiff's cross motion to amend her complaint, contending that plaintiff does not have a viable cause of action under either Education Law § 3028-d or Administrative Code § 12-113, and that leave should not be granted where the amended pleading would plainly lack merit.
Plaintiff makes the following relevant allegations in her amended complaint: Plaintiff was hired to work for DOE in September 1999 and worked at the Wings Academy in the Bronx until September 2003. According to plaintiff, in her evaluations at Wings Academy she was given satisfactory ratings and she was granted tenure during her time there. In September 2003, plaintiff requested and was granted a transfer to Murray Burgtraum High School (hereinafter "Murray").
The Court notes that plaintiff's complaint is lengthy and contains many factual allegations which bear no relevance to the causes of action asserted in the complaint. As such, the allegations repeated here are limited to those which are relevant to plaintiff's claims of retaliation.
On January 27-28, 2004, plaintiff took part in grading Regents Exams at Murray. According to plaintiff, she discovered that some or all teachers were given what she believed to be inaccurate instructions on how to grade the exams. On February 2, 2004, plaintiff wrote a letter to the principal at Murray, Ms. Esmilla, explaining that the procedures for scoring Regents exams mandate it to be done only in red ink or red pencil, but that teachers at Murray had used No. 2 pencils instead. Plaintiff alleges that Ms. Esmilla failed to respond, after which she contacted the Office of Special Investigations and thereafter the State Education Department. In June 2004, Ms. L. Mei, senior instructional manager of the Special Examinations Division, sent a letter to plaintiff informing her that the Division had determined that the subject Regents exam had been a "field test" and, therefore, there was no violation of Regents scoring procedure. On July 14, 2004, plaintiff also received a letter from Steven E. Katz, bureau chief of the Office of State Assessment, who repeated Ms. Mei's findings, stated that the use of #2 pencils was permitted in some circumstances, and thanked plaintiff for her efforts in preserving the integrity of State assessments.
After making her concerns known within the school and the Department of Education, plaintiff alleges that she was treated "persona non-grata" and "as a pariah" at the school. Plaintiff recounts numerous instances of allegedly retaliatory behavior by officials at the school and other teachers. Plaintiff also alleges that she was given unsatisfactory ratings for the 2003-04 and 2004-05 school years, and recites the circumstances surrounding each of the reasons cited for the score in the evaluations, contending that most of the factual allegations in the evaluations were untrue. According to plaintiff, the DOE began disciplinary proceedings against her under Education Law 3020-a, after finding there was probable cause for the following allegations: incompetence or inefficient service; neglect of duty; excessive absenteeism; insubordination; that plaintiff is unfit to perform her obligations properly to the service; conduct unbecoming her position or conduct prejudicial to the good order, efficiency or discipline of the service; and just cause for termination. According to plaintiff, she was transferred out of the classroom and to the Manhattan Regional Operation Center on December 20, 2006, awaiting determination of the charges against her by the DOE.
In deciding a motion brought pursuant to CPLR § 3211, the complaint should be liberally construed and the facts alleged in the complaint and any submissions in opposition to the motion accepted as true, according plaintiff the benefit of every possible favorable inference. ( 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144) (internal citations omitted). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'." ( Id.).
As a preliminary matter, the facts in plaintiff's complaint and motion papers which can be considered in support of plaintiff's causes of action under Civil Service Law § 75 and 42 U.S.C.
§ 1983 are limited by the doctrines of collateral estoppel and res judicata. New York has adopted the "transactional analysis approach" to deciding res judicata issues. ( Lanzano v The City of New York, 202 AD2d 378, 379 [1st Dept 1994]). "[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even in based upon different theories or if seeking a different remedy." ( Id., citing to O'Brien v City of Syracuse, 54 NY2d 353, 357). This approach also precludes claims "predicated on the same facts that could have been raised" in the prior action." ( Battery Park City Authority v Sikula, 213 AD2d 273 [1st Dept 1995], citing to Couri v Westchester Country Club, 186 AD2d 715 [2d Dept 1992]; lv dismissed and denied, 81 NY2d 912). Likewise, the doctrine of collateral estoppel bars re-litigation,
where there is an identity of issue which has necessarily been decided, although not actually litigated, in the prior action which is decisive of the present action and where the party seeking to defeat the application of the doctrine, [here, plaintiff], have had a full and fair opportunity to contest the decision now said to be controlling.
( Lanzano v The City of New York, 202 AD2d 378, 379 [2d Dept 1994], citing to Kaufman v Lilly Co., 65 NY2d 449). As with the doctrine of res judicata, plaintiff cannot avoid preclusion by collateral estoppel by offering a different theory of relief "predicated upon the same foundation and series of transactions" as were asserted in a prior action. ( Lanzano v The City of New York, supra).
On June 1, 2006, plaintiff filed an Article 78 petition in New York County Supreme Court, seeking review of the DOE's denial of her appeal of unsatisfactory review ratings for the 2003-2004 and 2004-2005 school years. ( Matter of Olga Batyreva v New York City Department of Education, Index No. 107548/06). In her petition, plaintiff claims that her unsatisfactory ratings and other treatment by the DOE were, inter alia, retaliation for her "whistleblower" letter exposing what she believed to be improper grading of Regents exams. In a decision, order and judgment entered on November 3, 2006, Hon. Marylin G. Diamond found that the DOE's ratings were not arbitrary or capricious, were supported by the evidence in the records, and that plaintiff's petition was without merit. Further, Justice Diamond stated that "the court has reviewed petitioner's claims of discrimination, retaliation and defamation and has found them to be unsupported by the record." Plaintiff appealed Justice Diamond's decision to the Appellate Division, First Department. In a decision rendered on April 1, 2008, Justice Diamond's decision was unanimously affirmed. ( Batyreva v New York City Department of Education, 2008 NY Slip Op 02902 [1st Dept April 1, 2008]). In affirming Justice Diamond, the Appellate Division wrote that,
the record evidence, including seven unsatisfactory classroom observations of petitioner's classroom performance for the 2003-2004 school year, and four unsatisfactory observation reports for the 2004-2005 school year establishes that the administrative decision to uphold petitioner's unsatisfactory reviews was not arbitrary, capricious or irrational. ( Id.).
In her amended complaint, plaintiff makes many factual allegations to support her claim of retaliation that were also alleged on the petition, in which she claimed that the unsatisfactory review ratings were motivated by discrimination on the basis of her national origin and retaliation for speaking out about the alleged improper grading of Regents exams. Specifically, the following paragraphs of plaintiff's amended complaint contain allegations which are either, in sum and substance, duplicative of those made in her Article 78 petition, or are amplifications of factual allegations made in her previous petition: 7-21; 23-43; 45-57; 59-62; 64-85; 89-90; 92-110. To the extent that plaintiff contends in this action that her unsatisfactory ratings or the underlying bases for those ratings were discriminatory, retaliatory, defamatory or arbitrary and capricious, those claims are barred by both the doctrine of collateral estoppel and res judicata. Plaintiff had the opportunity to challenge the ratings in her Article 78 petition, which she did, and may not now seek a different determination on the same facts presented by fashioning her claims as whistleblower claims. CPLR § 7803 specifically provides the opportunity to challenge an administrative body's actions as "an abuse of discretion," which includes actions taken in violation of law. Plaintiff's Article 78 petition was her opportunity to allege that the actions taken against her up until the filing of that petition were, taken in violation of Civil Service Law § 75 and 42 U.S.C. § 1983. Any attempt to re-litigate those issues or claims here is precluded.
Plaintiff's voluminous complaint contains many irrelevant factual allegations which do not bear on her alleged causes of action here. Eliminating of those factual allegations which are either irrelevant to plaintiff's claims or which are precluded as provided above, plaintiff's complaint essentially alleges the following: charges brought against her under Education Law 3020-a, seeking disciplinary action or removal, and her transfer to the Manhattan Regional Operation Center in December 2006 to await a determination on those charges, were both in retaliation for plaintiff's actions in drawing attention to improper grading of Regents exams in January 2004. According to plaintiff, these actions constitute unlawful retaliation under both Civil Service Law § 75 and 42 U.S.C. § 1983.
The DOE now moves to dismiss plaintiff's claim under Civil Service Law § 75, contending that plaintiff fails to state a cause of action under the statute and that such a claim is barred by Civil Service Law § 75-b where plaintiff is subject to a collective bargaining agreement which contains a grievance procedure.
Civil Service Law § 75-b(2)(a) states that,
[a] public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a government body information: (I) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee . . . which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.
It is an essential element of any claim brought under this provision that the plaintiff alleges either (I) actual "violation of a law, rule or regulation and a consequent danger to public health and safety," ( Finkelstein v Cornell Univ. Med. College, 269 AD2d 114, 116 (1st Dept 2000); or (ii) that the employee reasonably believed the public employer or employee violated a law, rule or regulation. (Civil Service Law § 75-b(2)(a)).
In the instant matter, plaintiff has failed to identify any law, rule or regulation allegedly violated by the DOE. Rather, plaintiff alleges that the DOE failed to follow its own internal guidelines for the proper grading of Regents exams. Plaintiff cites no codification of these guidelines nor any law, rule or regulation that would require the DOE to follow these guidelines. Therefore, even accepting as true plaintiff's allegation that fellow teachers scored the Regents exams in violation of the DOE's grading guidelines and that she was thereafter retaliated against for reporting her fellow teachers' actions, plaintiff cannot state a cause of action under Civil Service Law § 75 where she cannot point to any law, rule or regulation she reasonably believed to have been violated. As such, the Court need not determine whether this claim is barred in part by the statute of limitations or whether plaintiff was required to pursue remedies found in her collective bargaining agreement before bring this action.
To state a cause of action under 42 U.S.C. § 1983 for violation of a public employee's First Amendment rights under the United States Constitution, plaintiff must allege that she,
1) was speaking as a citizen, rather than in her official capacity as a public employee; 2) that the matter she spoke out about was a matter of public concern; and 3) that her speech was a substantial or motivating factor in the government employer's decision to take adverse action against her. ( Garcetti v Ceballos, 547 US 410, 418; citing Pickering v Board of Education, 391 US 563). "Government employers, like private employers, need a significant degree of control over their employees' words and actions." ( Garcetti v Ceballos, id.). This control, however, may not extend "incidentally or intentionally, [to] the liberties employees enjoy in their capacities as private citizens." ( Id. at 419).
Plaintiff alleges that, while engaged in grading Regents exams, she discovered that other teachers were not following procedure and were grading exams with a #2 pencil rather than a red pencil/pen. Plaintiff contends that this is an important deviation, and therefore a matter of public concern, because the results of Regents exams can have an impact on certain funding structures, including the size of the bonus awarded a principal. Accepting plaintiff's allegations as true, as the Court must do on a motion to dismiss pursuant to CPLR § 3211, it is clear that incorrect grading of Regents exams, because of the larger significance of the test results, is a matter of public concern.
Plaintiff has also alleged sufficient facts to establish, solely for the purposes of stating a cause of action and surviving this motion to dismiss, that she was speaking as a citizen and not in her official capacity as a public employee. Courts, in evaluating whether an individual's actions were taken as an employee or a citizen, must look to what the plaintiff's job duties were and whether her speech was part of those duties. In Garcetti, the United States Supreme Court found that speech by a Los Angeles District Attorney was not protected by the First Amendment, even where it was on a matter of public concern. The Court stated, "The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy." ( Garcetti v Ceballos, 547 US 410, 421). As Ceballos was engaged in speech that was "part of what he . . . was employed to do," ( Id.), he was not acting as a private citizen and could not, therefore, avoid employer action by claiming the First Amendment protected his speech. Likewise, in Ruotolo v City of New York, ( 514 F.3d 184 [2d Cir 2008]), the court dismissed claims of retaliation for failing to state a cause of action, where the claimed protected speech was a report concerning health conditions at plaintiff police officer's precinct, which he was directed to prepare in his role as precinct safety officer.
In this action, plaintiff has alleged that she was charged with grading Regents exams as part of her employment, but that while engaged in grading, she observed what she believed to be improper behavior by her coworkers. Nowhere in plaintiff's complaint, or in the opposition papers, is it alleged that plaintiff was in a supervisory position or that it would have part of her official responsibilities to report any suspected or real diversions from proper grading procedures. On a CPLR § 3211(a)(7) motion to dismiss, the movant bears the burden of establishing that, giving plaintiff the benefit of all reasonable inferences, plaintiff fails to state a cause of action. ( 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144). Here, the DOE has failed to meet its burden of establishing that plaintiff has no cause of action under 42 U.S.C. § 1983, as the facts alleged, if proved, may show that plaintiff was speaking in her capacity as a citizen and not as part of her official duties, on a matter of public concern, and was thereafter retaliated against by the DOE when it transferred her out of the classroom and began disciplinary proceedings against her. The Court makes no determination as to whether plaintiff can ultimately satisfy her burden of proving that he speech was on a matter of public concern, only that she has alleged sufficient facts to state a cause of action under 42 U.S.C. § 1983. This portion of the DOE's motion must, therefore, be denied.
Finally, plaintiff cross-moves for leave to amend her complaint to include claims for retaliation pursuant to Education Law § 3028-d and Administrative Code § 12-113. First, it should be noted that plaintiff has not included a proposed second amended complaint with her cross-motion. As such, the Court must presume that plaintiff intends to rely on the same factual allegations as are made in her original complaint, but that she will allege those same facts give rise to two additional causes of action. The Court has also considered those supplemental allegations found in plaintiff's motion papers, which would presumably be included in any supplemental pleading.
A motion for leave to further amend the pleadings should generally be freely granted. (CPLR § 3025(b)). However, "where the amended pleading plainly fails to state a cause of action and, thus, lacks merit," leave may not be granted. ( Stroock Stroock Lavan v Beltramini, 157 AD2d 590, 591 [1st Dept 1990] [ citing Thomas Crimmins Contracting Co., Inc. v City of New York, 74 NY2d 166; Daniels v Empire-Orr, Inc., 151 AD2d 370 [1st Dept 1989]).
Plaintiff's attempt to amend her complaint to include a cause of action for retaliation in violation of Administrative Code § 12-113, must be denied. First, plaintiff fails to identify which subsection she claims was violated and provides the relief sought. In addition, and more importantly, Administrative Code § 12-113 does not provide for a private cause of action to enforce its provisions. As the DOE correctly points out in its opposition to plaintiff's cross-motion, Administrative Code § 12-113(d) provides that upon receipt of a report of violation of any of the provisions listed therein, the Commissioner of the Department of Investigations is charged with investigating such complaints. The provisions provide solely for an administrative remedy, to be determined by the commissioner and/or agency head or, in some cases the mayor of the City of New York, and do not create a private right of action. ( See Healy v City of NY Dep't of Sanitation, 2006 US Dist LEXIS 86344 [SDNY November 22, 2006; Fabbricante v City of New York, 2002 US Dist LEXIS 27815 [EDNY November 18, 2002]). As such, plaintiff cannot plead a cause of action under Administrative Code § 12-113 and this portion of her motion must be denied.
Likewise, leave to further amend the complaint to add a cause of action pursuant to Education Law § 3028-d, may not be granted. That provision protects employees who report fiscal practices or actions which the employee has reasonable cause to suspect violate any local, state, or federal law or rule and regulation relating to the financial practices of the school or school district. (Education Law § 3028-d). Plaintiff, however, has alleged no fiscal practices or actions that she reported. In her motion papers, plaintiff states that the results of the Regents exam could have an impact on certain monetary allocations, including bonuses to principals. However, plaintiff also alleges that she was informed that the particular exams being graded at her school were part of a "field test," and that the Office of Special Investigations and Office of State Assessment investigated the matter and found no wrong-doing or cause for further investigation. In fact, plaintiff submits a letter from John Perez, High School Superintendent in the DOE's Division of Assessment and Accountability, dated June 3, 2004, which specifically states that the "field test" "grades were for in house use only." Nowhere in plaintiff's motion papers or amended complaint does plaintiff allege that test scores were altered, that incorrect test scores were reported, or that money allocations were, in fact or upon information and belief, affected by the allegedly improper grading of the Regents exams. Plaintiff's speculation that the alleged deviation in grading she observed in 2004 could have resulted in fiscal impropriety is insufficient to state a cause of action under Education Law § 3028-d and, therefore, the portion of her cross-motion seeking leave to amend to add such cause of action must be denied. Accordingly, it is;
ORDERED that the portion of defendant's motion seeking an order dismissing plaintiff's cause of action brought pursuant to Civil Service Law § 75 is granted; it is further
ORDERED that the portion of defendant's motion seeking an order dismissing plaintiff's cause of action brought pursuant to 42 U.S.C. § 1983 is denied; it is further
ORDERED that plaintiff's cross-motion for leave to further amend her complaint to assert two new causes of action is denied.
The foregoing constitutes the decision and order of this court.