McDonald v. Hempstead Union Free School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DR. VARLETON McDONALD,

Plaintiff,

-against- MEMORANDUM & ORDER

18-CV 5658

HEMPSTEAD UNION FREE SCHOOL DISTRICT,

BOARD OF EDUCATION OF THE HEMPSTEAD

SCHOOL DISTRICT, DAVID B. GATES,

Individually and in his official capacity, RANDY

STITH, Individually and in his official capacity,

and LAMONT E. JOHNSON, Individually

and in his official capacity,

Defendants.

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APPEARANCES:

For Plaintiff:

Law Office of Mark E. Goidell

666 Old Country Road

Suite 700

Garden City, NY 11530

By: Mark E. Goidell, Esq.

For Defendants:

The Scher Law Firm, LLP

One Old Country Road

Suite 385

Carle Place, NY 11514

By: Austin R. Graff, Esq.

HURLEY, Senior District Judge:

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Presently before the Court are objections by defendants Hempstead Union

Free School District (the "District"), Board of Education of The Hempstead School

District (the "Board"), David B. Gates ("Gates"), Randy Stith ("Stith") and Lamont

E. Johnson ("Johnson") (Gates, Stith and Johnson collectively "Individual

Defendants" and Individual Defendants, the District and the Board collectively

"Defendants") to the Report and Recommendation, dated November 7, 2021

(“R&R”), of Magistrate Judge Steven I. Locke insofar as it recommends denial of

Defendants' motion for summary judgment on all claims of Plaintiff Varleton

MacDonald ("Plaintiff" or "MacDonald") except the claims against the Defendants in

their official capacity. For the reasons set forth below, the Court sustains the

objections with respect to whether the communications at issue are protected by the

First Amendment, declines to adopt the R&R with respect to that issue, and

therefore grants Defendants' motion for summary judgment on the First

Amendment retaliation claim.

I. Nature of this Action

This action arises out of the termination of Plaintiff's employment as the

District's Deputy Superintendent of Schools. As alleged in the complaint, Plaintiff

contends that the Individual Defendants voted to terminate him in retaliation for

his communications with the FBI and New York State Department of Education

("NYSDOE") concerning various improprieties in the District, as well as for

forwarding an audit report from Plante Moran detailing such to the then Acting

Superintendent of the District, Regina Armstrong ("Armstrong").1 Defendants deny

that such was their motivation and assert that they cast their votes based on the

1 The complaint also asserted a First Amendment retaliation claim based on

Plaintiff's communications to the Board and District Administrators and a claim for

First Amendment Freedom of Association retaliation. By Order dated June 28,

2019, the Court dismissed those claims.

recommendation of Armstrong and their own observations regarding the District's

lack of a need for a District Deputy Superintendent.

Relevant facts as set forth in Judge Locke's R&R are incorporated by

reference. Additional relevant facts are referenced herein as appropriate.

II. Judge Locke's Report and Recommendation

Judge Locke began his analysis of Plaintiff's § 1983 First Amendment

retaliation claim by discussing whether McDonald engaged in constitutionally

protected speech, to wit, whether the speech was on matters of public concern and

whether he spoke as a citizen, rather than an employee, for First Amendment

purposes.

As to whether the speech at issue was on a matter of public concern, Judge

Locke noted that Defendants did not dispute that such was the nature of the speech

at issue, deemed the point conceded, and went on to address whether McDonald

spoke as a citizen. Judge Locke stated that as there was no disagreement as to

Plaintiff's written job description and that there was no evidence that he was hired

in whole or in part to investigate or report to authorities any corruption. He

therefore concluded that there are material questions of facts as to whether the

following actions fell outside his responsibilities: uncovering corruption and

reporting it to the proper authorities, his meetings and conversations with the FBI

and the NYSDOE, and his forwarding of the Plante Moran Report to Armstrong.

Although not addressed by Defendants in their motion papers, Judge Locke

also addressed the issue of whether civilian analogues, i.e., a "form or channel of

discourse available to non-employee citizens" was used by McDonald in connection

with the speech at issue and found that such civilian analogues did exist.

Finally, Judge Locke concluded that material issues of fact existed as to the

causal connection between Plaintiff's protected speech and the Individual

Defendants' decision to terminate him.

Having concluded his analysis of McDonald's First Amendment retaliation

claim, Judge Locke next turned to the District's claim that it was entitled to

summary judgment on the Monell claim against it. As the Individual Defendants

acted in their capacity as members of the Board of Education in voting to terminate

Plaintiff's employment and as the Board of Education is the final decision maker in

the District, Judge Locke recommended that summary judgment on the Monell

claim be denied.

Next, Judge Locke addressed the argument that the Individual Defendants

were entitled to summary judgment as to the claims brought against them in their

official and individual capacities. He recommended dismissal of the official capacity

claims as duplicative of the claims against the District. With respect to the

Individual Defendants' assertion of qualified immunity for the claims against them

in their individual capacities, he recommended that the Court reject the motion.

Lastly, Judge Locke recommended denial of the motion as to the state

whistleblower claims given the conflicting evidence regarding Defendants'

knowledge of Plaintiff's prior engagement in constitutionally protected speech and

their vote to terminate his employment in retaliation for that speech.

III. Defendant's Objections

Defendants object to the R&R asserting that the Magistrate Judge erred in

recommending denial of their summary judgment motion in that he (1) erroneously

concluded that Plaintiff engaged in constitutionally protected speech; (2) incorrectly

determined there was sufficient evidence to support Monell liability; (3) incorrectly

rejected Defendants' claim to qualified immunity and (4) erroneously determined

there was conflicting evidence as to the Individual Defendants' knowledge of

Plaintiff's protected activity warranting denial of the motion as to Plaintiff's New

York statutory retaliation claim

IV. Standard of Review

Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge

issues a report and recommendation on a matter “dispositive of a claim or defense of

a party,” the district court judge shall make a de novo determination of any portion

of the magistrate judge’s disposition to which specific written objection has been

made. Fed. R. Civ. P. 72(b).

V. McDonald's First Amendment Retaliation Claim

A. Relevant Law

To prevail on a claim that he or she was retaliated against in violation of the

First Amendment, a plaintiff must establish "‘(1) his [or her] speech or conduct was

protected by the First Amendment; (2) the defendant took an adverse action against

him [or her]; and (3) there was a causal connection between this adverse action and

the protected speech.’” Montero v. City of Yonkers, 890 F.3d 386, 394 (2d Cir. 2018)

(quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)).

"The inquiry into the protected status of speech is one of law, not fact." Connick v.

Myers, 461 U.S. 138, 148 n.7 (1983).

“Although a public employee ‘does not relinquish First Amendment rights to

comment on matters of public interest by virtue of government employment,’ these

rights are not absolute, because the public employer has a legitimate interest in

regulating the speech of its employees to promote the efficiency of its public

services." Mandell v. County of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003) (citing

Connick v. Myers, 461 U.S. 138, 140 (1983)); see also Garcetti v. Ceballos, 547 U.S.

410, 418 (2006) (“A government entity has broader discretion to restrict speech

when it acts in its role as employer, but the restrictions it imposes must be directed

at speech that has some potential to affect the entity’s operations.”); Pickering v.

Bd. of Educ., 391 U.S. 563, 568 (1968)); Ruotolo v. City of New York, 514 F.3d 184,

189 (2d Cir. 2008) (“Recognizing that government employers (like private

employers) have heightened interests in controlling speech made by an employee in

his or her professional capacity, the Supreme Court ruled that a public employee

speaking in his official capacity is not speaking as a citizen for First Amendment

purposes, and employer retaliation for such speech does not justify the

‘displacement of managerial discretion by judicial supervision.’”) (internal quotation

marks omitted).

“When public employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer discipline.”

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). However, there are times when a

public employee’s speech falls within the ambit of the First Amendment.

To determine whether a public employee’s speech is protected, courts conduct

a two-step inquiry. Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015).

First, the court “determin[es] whether the employee spoke as a citizen on a matter

of public concern. Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “This

step one inquiry in turn encompasses two separate subquestions: ‘(1) whether the

subject of the employee's speech was a matter of public concern and (2) whether the

employee spoke ‘as a citizen’ rather than solely as an employee.’” Id. (quoting

Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir.2011)). An employee speaks as a citizen

if the speech fell outside of the employee’s official responsibilities, and a civilian

analogue existed. Id. (citing Weintraub v. Bd. of Educ., 593 F.3d 196, 203–04 (2d

Cir. 2010)). Speech is on a matter of public concern and therefore a protected

activity “if it relates ‘to any matter of political, social, or other concern to the

community.’ ” Dillon v. Suffolk Cnty Dept. of Health Servs., 917 F.Supp.2d 196, 205

(E.D.N.Y. 2013) (citing Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75

L.Ed.2d 708 (1983)). If the answer to either subpart is no, the inquiry ends. “If,

however, both questions are answered in the affirmative, the court then proceeds to

the second step of the two-step inquiry, commonly referred to as the Pickering

analysis: whether the relevant government entity ‘had an adequate justification for

treating the employee differently from any other member of the public based on the

government's needs as an employer.’” Matthews, 779 F.3d 167 (quoting Lane v.

Franks, 573 U.S. 228, 134 S. Ct. 2369, 2380 (2014)).

The Second Circuit has identified two relevant inquiries to determine

whether a public employee speaks as a citizen: "(1) whether the speech falls outside

the employee's official responsibilities, and (2) whether a civilian analogue [(i.e., a

form or channel of discourse available to non-employee citizens)] exists." Montero v.

City of Yonkers, New York, 890 F.3d 386, 397 (2d Cir. 2018 (internal quotations

omitted). The first inquiry is the critical one while the second issue "may be of some

help in determining whether one spoke as a citizen." Id.

To determine whether speech falls outside an employee's official duties, a

court “must examine the nature of the plaintiff's job responsibilities, the nature of

the speech, and the relationship between the two,” as well as “[o]ther contextual

factors, such as whether the complaint was also conveyed to the public.” Ross v.

Breslin, 693 F.3d 300, 306 (2d Cir. 2012). A public employee's speech is not

protected if it is “part-and-parcel of [the employee's] concerns about his ability to

properly execute his duties.” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of

New York, 593 F.3d 196, 203 (2d Cir. 2010). Directing the speech at issue up the

“chain of command” is evidence that the employee is speaking pursuant to his

official duties. Castro v. Cty. of Nassau, 739 F. Supp. 2d 153, 180 (E.D.N.Y. 2010)

(holding that a security guard was speaking as a public employee when he “directed

his complaints up the operational chain of command”); see also Carter v. Inc. Vill. of

Ocean Beach, 415 F. App'x 290, 293 (2d Cir. Mar. 18, 2011) (finding that plaintiffs

were speaking pursuant to their official duties where their “allegations establish no

more than that they reported what they believed to be misconduct by a supervisor

up the chain of command—misconduct they knew of only by virtue of their jobs as

police officers and which they reported as ‘part-and-parcel of [their] concerns about

[their] ability to properly execute [their] duties.’ ” (citing Weintraub, 593 F.3d at

203)).

“[U]nder the First Amendment, speech can be ‘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,

593 F.3d at 203. “Weintraub and its progeny make clear that merely reporting

information outside the chain of command is not necessarily sufficient, in and of

itself, to establish that a public employee was speaking as a citizen.” Williams v.

Cty. of Nassau, 779 F. Supp. 2d 276, 283-84 (E.D.N.Y. 2011), aff'd, 581 F. App'x 56

(2d Cir. 2014); see also Malgieri v. Ehrenberg, 2012 WL 6647515, at *1 (S.D.N.Y.

2012) (speech that is outside the chain of command is not necessarily dispositive of

whether a person is speaking as a citizen). Hence, even where the speech is made

outside the “chain of command,” a public employee speaks pursuant to his official

duties if his speech was “part-and-parcel of his concerns about his ability to properly

execute his duties.” Weintraub, 593 F.3d at 203.

Where speech “owes its existence” to the employee's job duties, or is of the

sort that is derived from special knowledge resulting from the speaker's

employment, it is more likely that the speech was made as an employee than as a

citizen. Taylor v. New York City Dep't of Educ., 2012 WL 3890599, at *3, *5, *7

(S.D.N.Y. Sept. 6, 2012). Where a speaker, despite going “outside the chain of

command,” engages in speech to an entity to which he regularly interacts as part of

his job, courts have held that speech is made pursuant to the speaker's official

duties. Anemone v. Metro. Transp. Auth., 629 F.3d 97, 115-17 (2d Cir. 2011).

B. The Relevant Facts as Admitted by Plaintiff

The facts as admitted by Plaintiff with respect to the three communications

at issue are:

The FBI Meeting

In December 2017, Plaintiff and Dr. Waronker, the then Superintendent of

the District ("Waronker"), attended a meeting with agents of the FBI at the FBI's

offices in Mineola, New York. Plaintiff was invited to attend by Waronker, his

immediate supervisor. "During the meeting, Plaintiff provided detailed information

to the FBI including, but not limited, to school safety and security issues arising

from unsupervised and unauthorized students in the hallways, gang presence and

the absence of effective policies, chronic student absences without corrective

policies, weapons in the school, including weapons confiscated from students and

stored without appropriate inventory procedures or surrender to law enforcement,

attendance at the school by students who were no longer eligible as students,

former employees being paid although no longer working, patronage hiring of

ineffective and poor-performing security personnel, . . . falsely reported student

registrations and fraudulently procured funding.". (Pl,'s Counter 56.1 Statement at

¶¶ 15-17.)

The Videoconference with the NYDOE

Plaintiff and Waronker met together by video conference call with the Deputy

Commissioner of Education on December 4, 2017 during which a PowerPoint

presentation was presented to the Deputy Commissioner. (Pl,'s Counter 56.1

Statement at ¶¶ 20-21.) Plaintiff was introduced by Waronker to the Deputy

Commissioner as the Deputy Superintendent for the District. While Plaintiff did not

create the PowerPoint it "contained Plaintiff's work product." The presentation set

forth numerous concerns of corruption and improprieties in the District. (Id. at ¶¶

22-25.)

The Plante Moran Preliminary Report

In December 2017, Plante Moran, the District's forensic auditor, provided

Plaintiff and Waronker with its preliminary findings. Thereafter on January 11,

2018. Plaintiff received a copy of a preliminary report issued by Plante Moran

because he was Deputy Superintendent and because Lawrence Dobroff, the

Assistant Superintendent of Business of the District ("Dobroff"), was directed by

Waronker to provide the report to Plaintiff so he (Plaintiff) could forward the report

to the Board. Plaintiff passed the preliminary report issued by Plante Moran to

Regina Armstrong ("Armstrong"), who was the District's Acting Superintendent of

Schools at that time (the Board having placed Waronker on administrative leave

with pay), so she could send it to the Board. He sent the report by the District's

email system. Plaintiff was interested in the findings in the report because he was

Deputy Superintendent of the District.2 (Id. at 31-36.)

C. Plaintiff's Speech was Not as a Citizen

In support of his First Amendment claim, Plaintiff relies upon the absence of

any reference to the identification or exposure of corruption, mismanagement, or

educational and financial malfeasance in his official job description. That job

description is as follows:

to supervise assigned assistant superintendents and chief information

officer, review and interpret all laws, regulations, statutes, rules and

policies affecting the school division, respond to inquiries for

interpretation from division staff on matters not clearly covered by

regulation, policy or legislation, annually evaluate assigned assistant

superintendents, chief information officer and principals for job

effectiveness, oversee administration of the fiscal and human resources

of assigned departments, review evaluations submitted by assigned

assistant superintendents and chief information officer on personnel

under their supervision, oversee, implement and evaluate a strategic

plan, assist in the preparation and administration of budget[s] fro[m]

assigned departments, assist in the determination of types of programs

needed by the school division and make recommendations, support the

Superintendent in the review and revision of operational goals and

objectives, and efforts to measure progress toward their attainment,

prepare and provide workshop presentations for the Board, establish

and maintain effective working relationships with community and

state agencies, area businesses, industries and other organizations,

organize and/or chair various committees as directed, explain and

interpret programs to staff, parents and the general public, collaborate

and work cooperatively with advisory boards, and respond to parent

and community concerns.

2 The Court notes that Plaintiff also avers that "he communicated as a citizen." (DE

43 at ¶ 30.) However, whether he communicated as a citizen is a legal issue.

But that focus is too narrow. As noted earlier, "speech can be ‘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, 593 F.3d at 203. Moreover, the proper inquiry entails not only plaintiff's

job responsibilities but "the nature of the speech and the relationship between the

two," as well as "[o]her contextual factors. Ross, 693 F.3d at 306. Viewing all those

factors in the light most favorable to Plaintiff, Plaintiff's First Amendment

retaliation claim must fail.

First, to the extent the Deputy Superintendent is charged, as Plaintiff was,

with oversee[ing the] fiscal . . . resources of assigned departments" and "assist[ing]

in the preparation and administration of budget[s] for assigned departments," such

improprieties as, for example, "former employees being paid although no longer

working," squarely fall within Plaintiff's job responsibilities even though the word

"corruption" is absent.

Further, the improprieties that were the subject of the discussions with the

FBI and the NYDOE were discovered as a result of the extensive reviews conducted

by Waronker and Plaintiff. During their review of student transcripts to determine

graduation needs for students, they discovered pervasive academic and financial

fraud, including falsification of student population and graduation rates. During the

review of facilities, they found, among other things, crumbling, mold-infested

trailers, unmaintained and decaying boilers, and vermin infestation. Plaintiff also

became aware “of other gross financial improprieties,” including the District’s head

of food services utilizing District equipment and facilities for a catering business.

(Comp. ¶¶ 25-35.)3 Thus, while his job description may not have included

uncovering improprieties, it did include " oversee[ing] administration of the fiscal

and human resources of assigned departments," " oversee[ing] , implement[ing] and

evaluat[ing] a strategic plan, . . . assist[ing] in the determination of types of

programs needed by the school division and mak[ing] recommendations,

support[ing] the Superintendent in the review and revision of operational goals and

objectives, and efforts to measure progress toward their attainment" as part of his

duties. The uncovering of academic and financial fraud directly affected his ability

to perform those duties.

With respect to the Plante Moran preliminary report, his communication of

that report was an internal communication and one that he was asked to perform

because of his position in the district. See DE 43 at ¶¶ 28, 29 (he received a copy of

the report because he was Deputy Superintendent and because he was directed to o

provide the report to Armstrong). In other word he forwarded the report up the

chain of command in his role as an employee. Moreover, he used the District's

email system to send the report to Armstrong. Given these undisputed facts, the

only conclusion to be drawn is that the communication of the report is not protected

speech as it was in his role as an employee.

3 While a complaint is not normally evidence, the allegations therein may be

considered on a motion for summary judgment as a judicial admission. See W.

World Ins. Co. v. Stack Oil. Inc. 922 F2d 118, 121-122(2d Cir. 1990).

Similarly, based on the undisputed facts, Plaintiff speech with respect to the

videoconference with the NYDOE and the meeting with the FBI was in his capacity

as an employee. According to Plaintiff, he was on the videoconference as the

District's Deputy Superintendent and because the PowerPoint presentation

contained his "work product and was a joint presentation of Dr. Waronker and

Plaintiff." and he confirmed what Waronker presented. (Id. at ¶¶20-23.) In other

words, he was there in his capacity as Deputy Superintendent and his

communications during that conference were in that capacity.

Turning then lastly to the communication with the FBI, Plaintiff was asked

to attend by his then supervisor, Waronker, and based on the record that invitation

was based on Plaintiff's position and role in uncovering the various improprieties.

As such he was at the FBI in his employment capacity and his speech concerning

the various improprieties was an employee. See also Waronker v. Hempstead Union

Free School District, 788 F. App'x 788, 792093 (2d Cir. 2019) ("Waronker did not

bear an obligation as a private citizen to communicate with law enforcement about

the School District's corruption and mismanagement." Waronker v. Hempstead

Union Free School District, 788 F. App'x 788, 792093 (2d Cir. 2019).

Inasmuch as the speech at issue was not as a citizen, Plaintiff's First

Amendment retaliation claim necessarily fails and Defendants are entitled to

summary judgment thereon.4

4 Having concluded that Plaintiff's speech was an employee, it is unnecessary to

address the issue of causation. Moreover, given that the claim of First Amendment

retaliation fails, the Monell claim against the District necessarily fails as the

VI. The State Law Claim

Having granted the motion for summary judgment on Plaintiff's’ federal

claim, there is no longer any independent basis for federal jurisdiction in this

action. Although the Court has the discretion to exercise supplemental jurisdiction

over Plaintiff’s remaining state law claim, it declines to do so. See 28 U.S.C. §

1367(c)(3) (“The district court may decline to exercise supplemental jurisdiction over

a claim . . . if . . . the district court has dismissed all claims over which it has

original jurisdiction . . . .”); see also N.Y. Mercantile Exch., Inc. v. Intercontinental

Exch., Inc., 497 F.3d 109, 119 (2d Cir. 2007) ( holding that dismissal of remaining

state claims after the dismissal of federal claims is particularly appropriate where

the resolution of the state law claims entails resolving additional legal and factual

issues).

Accordingly, plaintiffs’ state law claim is dismissed without prejudice.

CONCLUSION

For the reasons set forth above, the Court declines to adopt the R&R of Judge

Locke, grants Defendants' motion for summary judgment on Plaintiff's First

Amendment retaliation claim and dismisses his state law claim without prejudice.

The Clerk of Court is directed to enter judgment accordingly and to close this case.

presence of an underlying constitutional violation is a predicate to Monell liability.

See, e.g., Askins v. Doe, 727 F.3d 248, 253-54 (2d Cir. 2013) (“[T]he plaintiff's failure

to secure a judgment against the individual actors would . .. preclude a judgment

against the municipality if the ruling . . . resulted from the plaintiff's failure to

show that they committed the alleged [constitutional] tort.”) (emphasis omitted).

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

February 9, 2022 Denis R. Hurley

United States District Judge