Henderson v. Greenville Central School District

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

RACHEL HENDERSON,

Plaintiff,

-against- 1:19-CV-0866 (LEK/CFH)

GREENVILLE CENTRAL

SCHOOL DISTRICT, et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Rachel Henderson commenced the present action against defendants Greenville

Central School District (the “School District”), Greenville Board of Education, board members

Thomas Connolly, Jennifer Howard, Patricia Macko, Duncan MacPherson, Michael McAneny,

Tracy Young, Raymond Albin, and Superintendent Tammy J. Sutherland alleging civil rights

violations under 42 U.S.C. § 1983 and Article I, Section 8 of the New York State Constitution.

Dkt. No. 29 (“Amended Complaint”). Presently before the Court are Plaintiff’s motion for

summary judgment, Dkt. No. 42 (“Plaintiff’s Motion”), and Defendants’ motion for summary

judgment, Dkt. No. 48 (“Defendants’ Motion”). For the following reasons, the Court grants

Defendants’ Motion, denies Plaintiff’s Motion, and dismisses the Amended Complaint.

II. BACKGROUND

A. Factual History

The following facts are undisputed, except where otherwise noted.

Plaintiff began her employment with the School District in February 2011. Dkt. No. 42-

35 (“Plaintiff’s Statement of Material Facts” or “Plaintiff’s SMF”) ¶ 9. Throughout her tenure,

except for one instance of discipline in 2016, Plaintiff received almost all “outstanding” or

“satisfactory” employment performance ratings. Id. ¶ 14. Relevant to this case, for the 2018-19

academic year, Plaintiff was employed as an aide/monitor in the Scott M. Ellis Elementary

School. Id. ¶ 1.

Plaintiff is the mother of three School District students, including one who was a

freshman at Greenville High School (the “High School”) during the 2018-19 academic year. Id.

¶¶ 21–22. On September 20, 2018, Plaintiff and her husband planned to attend an open house

hosted by the School District. Id. ¶¶ 26, 29. Plaintiff was not asked to work at the open house. Id.

¶ 28. On the day of the open house, Plaintiff learned from her husband that there may be a

dangerous student at the High School. Dkt. No. 45-2 (“Defendants’ Statement of Additional

Material Facts” or “Defendants’ SMF”) ¶ 40. Plaintiff’s husband heard this information from

Mark Vardy, a friend and former coworker, who in turn heard the information from his wife. Id. ¶

98; Pl.’s SMF ¶ 31.1 At the last minute, Plaintiff’s husband was called into work and did not

attend the open house with his wife. Id. ¶ 30. Although he did not attend the open house, he

asked Plaintiff to find out if the student was actually going to attend the School District. Id. ¶ 36.

Plaintiff was concerned in particular that the student could be in physical education (“PE”)

classes and lunch with her small, 14-year-old son. Id. ¶¶ 40–41. “Those are typically the

classes[,]” according to Plaintiff, “that can be physical because there’s a whole bunch of kids in

1 It is not clear if Defendants dispute Pl.’s SMF ¶ 31, Dkt. No. 45-1 at ¶ 31, for the

assertion that Mark Vardy is a friend and former colleague of Plaintiff’s husband, and that Vardy

heard the information from his wife. In any case, this is not a genuine issue of material fact.

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one room.” Id. ¶ 40 (quoting Dkt. No. 42-6 (“Henderson Deposition”) at 72:18–20). Plaintiff’s

concern was the alleged potential for resulting physical harm to her child. Id.

First, Plaintiff went to where the PE and health teachers were stationed and spoke directly

to Gordon Conrow, a former coworker and her son’s PE teacher. Id. ¶¶ 47–48. After exchanging

pleasantries, Plaintiff asked:

“Do you know anybody by the name of [the student]?” . . . “I have a

concern that my husband wanted me to ask. Apparently the kid spent

some time in jail and he could be dangerous, and I just want to check

and make sure that he’s not near my kids.”

Henderson Dep. at 21:24–22:5.

Conrow did not know the student, and he called over Christopher Warga, another PE

teacher who was standing nearby. Id. at 22:11–23:22. Warga also did not know the student. Pl.’s

SMF ¶ 53. According to Plaintiff:

So they called over another gentleman and he introduced himself to

me and I told him my concerns and he actually gave me the child’s

first name and he said that he was an aide with this child and not to

worry, that he’s with him at all times whenever he is out of the

classroom. And he also told me that he has his own PE class.

Henderson Dep. at 24:13–24:19.

Hearing this information made Plaintiff feel better, but since she did not know the man,

she wanted to get some advice from someone she did know. Pl.’s SMF ¶ 56. The next day,

September 21, 2018, after dismissal, Plaintiff approached her colleague, aide/monitor Laura

Mastrantuono, in the High School parking lot. Id. ¶ 57. Plaintiff asked whether Mastrantuono

knew the student and whether he was a “good kid.” Henderson Dep. at 35:11–36:15. Defendants

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assert that Plaintiff made inappropriate statements about the student. Defs.’ SMF J 92.

Mastrantuono’s response satisfied Plaintiff's concerns. Pl.’s SMF § 60.

After these events, Conrow told principal Matt Ward that Plaintiff was “asking about

another kid[.]” Id. §] 62. The student’s aide emailed Brook Van Fleet, the director of special

education and pupil personnel services, the morning after the open house about the “parent

interaction” with Plaintiff. Id. §] 64. Mastrantuono also emailed Van Fleet about her interaction

with Plaintiff. Id. 9] 65-66. Van Fleet, in turn, forwarded these emails to Sutherland and assistant

superintendent Accousti. Id. 4—5, 67.

On or about September 25, 2018, Plaintiff received a letter from Accousti, requesting her

attendance at a meeting scheduled for September 27, 2018. Id. 971. The meeting was

rescheduled for September 28, and Plaintiff met with Accousti and Karen Overbaugh, the

president of the Greenville Paraprofessional Federation. Id. 74-75. Accousti told Plaintiff that

the School District wanted to terminate her employment. Id. 4] 78. Plaintiff was given until

October 2, 2018 to decide whether to resign or be terminated, and she was told not to report for

work the following Monday, October 1, 2018. Id. 4] 79-80.

On September 30, 2018, as a follow-up to the September 28 meeting, Plaintiff sent a

letter to Accousti and copied a number of other individuals. Id. 83; Dkt. No. 42-24 (“September

30 Letter”). In the September 30 Letter, among other things, Plaintiff wrote that she felt she “was

mistreated and wrongly accused pertaining to [her] right and [her] parental responsibility to

protect [her] son.” Id. at 1. She also wrote that the information about the allegedly dangerous

student “‘caused [her] to have a ‘normal parental response’ that made [her] fearful for the safety

and well being of [her] son in attendance at the [H]igh School.” Id.

On October 4, 2018, Sutherland sent Plaintiff a letter in response to the September 30

Letter. Dkt. No. 42-27. The letter notified Plaintiff that her employment with the School District

was terminated effective immediately. Id. at 2. Then, on October 15, 2018, the Board of

Education voted to approve Plaintiff’s termination retroactively. Defs.’ SMF ¶ 132.

B. Procedural History

Plaintiff commenced this case on July 18, 2019. Dkt. No. 1 (“Complaint”). She filed the

Amended Complaint on February 21, 2020. See generally Am. Compl. Plaintiff moved for

summary judgment on September 1, 2020. See generally Pl.’s Mot. Defendants, in turn, moved

for summary judgment on October 30, 2020. See generally Defs.’ Mot.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56 instructs courts to grant summary judgment if “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under

the governing law,” and a dispute is “‘genuine’ ... if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude

summary judgment, “summary judgment will not lie if ... the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d

43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the

nonmoving party should summary judgment be granted.”).

The party seeking summary judgment bears the burden of informing the court of the basis

for the motion and identifying those portions of the record that the moving party claims will

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party

has failed “to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Id. at 322.

In attempting to repel a motion for summary judgment after the moving party has met its

initial burden, the nonmoving party “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). At the same time, a court must resolve all ambiguities and draw all

reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000). Thus, a court’s duty in reviewing a motion for summary

judgment is “carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo

v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

IV. DISCUSSION

A. Failure to Comply with Local Rules

In her response to Defendants’ Motion, Plaintiff urges the Court to deny the motion since

it violates Local Rule 7.1(c). Dkt. No. 51 at 8-9. Defendants disagree that they violated Local

Rule 7.1(c). Dkt. No. 54 at 1-3. The Court notes that it has broad discretion in determining

whether to overlook a party’s failure to comply with local court rules. Holtz v. Rockefeller &

Co., 258 F.3d 62, 73 (2d Cir. 2001) (citing Wright v. BankAmerica Corp., 219 F.3d 79, 85 (2d

Cir. 2000)). Any deviation from the Local Rules will bring about a just result “within the spirit of

Rule 1 of the Federal Rules of Civil Procedure.” Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d

1043, 1049 (2d Cir. 1991); see also Fed. R. Civ. P. 1 (“[The Federal Rules] should be construed,

administered, and employed by the court and the parties to secure the just, speedy, and

inexpensive determination of every action and proceeding.”). Thus, without passing judgment on

Defendants’ compliance with the Local Rules, the Court will excuse any potential

noncompliance and consider Defendants’ Motion.

B. First Amendment Retaliation

Plaintiff argues that her termination was in retaliation for speech protected by the U.S.

and New York State constitutions. Dkt. No. 42-34 at 10–27. In addition to arguing that the

individual defendants are not entitled to qualified immunity, Plaintiff asserts that the School

District is subject to municipal liability under Monell v. Department of Social Services, 453 U.S.

658 (1978). Id. at 27–32. Defendants, in turn, contend that Plaintiff’s claims fail because her

speech related to her role as an aide/monitor. Dkt. No. 48-1 at 2–9. Also, Defendants assert that

the individual Defendants are entitled to qualified immunity, and that the School District is not

subject to municipal liability. Id. at 15–18.

The Court agrees that Plaintiff’s claims fail; however, the Court grants Defendant’s

motion on the basis that Plaintiff’s speech was not on a matter of public concern and therefore

was not protected from retaliation by the First Amendment.

To survive a motion for summary judgment on a First Amendment retaliation claim, a

plaintiff must present evidence: “(1) that the speech or conduct at issue was protected, (2) that the

defendant took adverse action against the plaintiff, and (3) that there was a causal connection

between the protected speech and the adverse action.” Myers v. Municipality of Greene Cty., No.

19-CV-325, 2020 WL 204296, at *5 (N.D.N.Y. Jan. 14, 2020) (Kahn, J.); see also Housing

Works, Inc. v. Turner, 179 F. Supp. 2d 177, 199 n.25 (S.D.N.Y. 2001) (citation omitted) (“Free

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speech claims under the First Amendment and the New York State Constitution are subject to the

same standards.”). A public employee’s work-related speech is protected “when he or she is

speaking ‘as a citizen upon matters of public concern.’” Raymond v. City of New York, 317 F.

Supp. 3d 746, 772 (S.D.N.Y. 2018) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968)). Speech “on a matter of public concern” “relat[es] to any matter of political, social, or

other concern to the community.” Nagle v. Marron, 663 F.3d 100, 106 (2d Cir. 2011) (quoting

Connick v. Myers, 461 U.S. 138, 146 (1983)). Speech that “principally focuses on an issue that is

personal in nature and generally related to the speaker’s own situation or that is calculated to

redress personal grievances—even if touching on a matter of general importance—does not

qualify for First Amendment protection.” Agosto v. New York City Dep’t of Educ., 982 F.3d 86,

95 (2d Cir. 2020) (internal citation omitted). “[C]ourts must look behind pretextual ‘public

concern’ rationales proffered by plaintiffs and attempt to discern whether their conduct, taken as

a whole, was actually meant to address matters of public concern or was simply a vehicle for

furthering private interests.” Pappas v. Giuliani, 118 F. Supp. 2d 433, 444 (S.D.N.Y. 2000)

(internal citation omitted). “Whether an employee’s speech addresses a matter of public concern

is a question of law for the court to decide, taking into account the content, form, and context of a

given statement as revealed by the whole record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.

1999) (citations omitted). Still, the “the speaker’s motive cannot be the only factor that we

consider in deciding whether [Plaintiff’s] statement is a matter of public concern.” Reuland v.

Hynes, 460 F.3d 409, 416 (2d Cir. 2006).

Here, although Plaintiff argues that her speech addressed a matter of public concern, i.e.,

the safety of school children and staff, Dkt. No. 42-34 at 20–22, the content, form, and context of

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Plaintiff’s speech reveals that she principally cared about her son rather than the situation of the

community in general.

1. Open House

First, at the open house, Plaintiff asked Conrow:

“Do you know anybody by the name of [the student]?” . . . “I have a

concern that my husband wanted me to ask. Apparently the kid spent

some time in jail and he could be dangerous, and I just want to check

and make sure that he’s not near my kids.”

See Henderson Dep. at 21:24–22:5 (emphasis added).

After Conrow told her that he did not know the student, Conrow called over Warga. Id. at

22:9–13; 23:18–20. Warga also did not know the student, and then Conrow called over someone

who turned out to be the student’s aide. Id. at 24:13–20. Plaintiff explained her concerns to the

aide, and he was able to satisfy some of her concerns. Id. at 24:13–25:19.

Plaintiff’s inquiries about a student cannot fairly be characterized as constituting speech

on a matter of public concern. The content of Plaintiff’s inquires reveals that she did not want the

student near her son. Further, the context of the inquiries supports the conclusion that it is not

protected by the First Amendment. As Plaintiff admits, “[she] privately and discretely questioned

several responsible High School employees at the high school during the Open House[.]”

September 30 Letter at 2; compare Kimble v. Kingston City Sch. Dist., No. 18-CV-575, 2019

WL 1259614, at *5 (N.D.N.Y. Mar. 19, 2019) (finding speech to not be a matter of public

concern due in part to, “other than filing a Notice of Claim,[p]laintiff made his complaints about

the bullying of his son privately, i.e., in the form of emails to or conversations with employees of

Defendant District, rather than in a public forum.”) with Thibault v. Spino, 431 F. Supp. 3d 1, 10

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(D. Conn. 2019) (“Further, the context of the speech supports the conclusion that it is protected

by the First Amendment. As Plaintiff notes, her speech was published on a forum maintained by

a political candidate in the run-up to an election.”). Finally, although not dispositive, Plaintiff’s

motivation was clearly to protect her son. See, e.g., September 30 Letter at 1 (“I feel that I was

mistreated and wrongly accused pertaining to my right and my parental responsibility to protect

my son.”); id. (“This [information about the student] caused me to have a ‘normal parental

response’ that made me fearful for the safety and well being of my son in attendance at the

[H]igh School.”); see also Kimble, 2019 WL 1259614, at *5 (finding that “although the issue of

bullying in schools and elsewhere is certainly a matter of public interest,” plaintiff’s “complaints

concerned only his son’s mistreatment at the hands of other students, which Plaintiff asserts was

the result of Plaintiff’s role as a School Resource Officer.” (emphasis in original)).

The Second Circuit has recognized that although an “individual motivated by a personal

grievance can simultaneously speak on a matter affecting the public at large,” speech that

“principally focuses on an issue that is personal in nature and generally related to the speaker’s

own situation or that is calculated to redress personal grievances—even if touching on a matter of

general importance—does not qualify for First Amendment protection.” Montero v. City of

Yonkers, New York, 890 F.3d 386, 399–400 (2d Cir. 2018) (internal quotation marks, citation,

and alteration omitted). Courts in this Circuit examine whether speech principally concerns

personal issues or a matter affecting the public at large. See Ross v. New York City Dep’t of

Educ., 935 F. Supp. 2d 508, 525 (E.D.N.Y. 2013) (“Although Plaintiff’s press conference may

have ‘exposed’ allegedly improper conduct, this form of speech was primarily concerned with his

personal dissatisfaction with adverse employment decisions and his personal lawsuit that sought

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to only redress personal injuries.”) (emphasis in original); see also Paterno v. City of New York,

No. 17-CV-8278, 2018 WL 3632526, at *8 (S.D.N.Y. July 31, 2018), aff’d, 781 F. App’x 15 (2d

Cir. 2019) (“Any tangential discussion of broader ‘discriminatory conduct at DOT’ unrelated to

Plaintiff . . . was secondary to discussion of Plaintiff’s involvement.”). Here, even if Plaintiff had

discussions and concerns about broader school safety at the School District, it was still secondary

to Plaintiff’s parental desire to protect her son. Therefore, taking into consideration the content,

form, and context of Plaintiff’s statements at the open house, Plaintiff’s inquiries at the open

house principally focused on her personal grievances—not on matters of public concern.

2. Parking Lot

Plaintiff’s discussion with Mastrantuono in the parking lot was of the same category of

speech as the open house since it centered around her inquiries into the student.2 Thus, the

inquiries to Mastrantuono in the parking lot also did not constitute speech on a matter of public

concern and fail for similar reasons as described above.

Plaintiff’s private statements indicating a desire to protect her child from a perceived

threat do not invoke First Amendment protection. There is nothing in the record to indicate that

Plaintiff intended to voice her discontent about the broader issue of school safety to the public at

large. Furthermore, although the issue of school safety can certainly be a matter of public interest,

Plaintiff’s speech principally concerned her son’s safety in potentially interacting with an

allegedly dangerous student. The Court is cognizant that the present case deals with the public

employment context, and parental speech outside this context is not subject to the Pickering

2 Although Defendants assert that Plaintiff made inappropriate statements about the

student, Defs.’ SMF ¶ 92, the Court notes that even if Plaintiff made no derogatory statements,

her First Amendment claims still fail.

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public concern test. See generally C.T. v. Valley Stream Union Free Sch. Dist., 201 F. Supp. 3d

307, 316 (E.D.N.Y. 2016) (declining to apply Pickering public concern test to parents with

children in public school).

Because none of Plaintiff’s statements were on a matter of public concern, her § 1983

claim for First Amendment retaliation and New York State Constitution free speech retaliation

claim both fail.3 As a result, Plaintiff’s municipal liability claim against the School District also

fails. See Bradley v. City of New York, No. 08-CV-1106, 2009 WL 1703237, at *2 (E.D.N.Y.

June 18, 2009) (“To hold a municipality liable under Section 1983, a plaintiff must establish both

a violation of his or her constitutional rights and that the violation was caused by a municipal

policy or custom.”).

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that Plaintiff’s motion for summary judgment (Dkt. No. 42) is DENIED;

and it is further

ORDERED, that Defendants’ motion for summary judgment (Dkt. No. 48) is

GRANTED; and it is further

ORDERED, that the Amended Complaint (Dkt. No. 29) is DISMISSED; and it is

further

ORDERED, that the Clerk is directed to close this action; and it is further

3 Because the Court finds Plaintiff has not demonstrated a triable issue on all elements of

her retaliation claim, it does not reach the issue of whether the individual defendants are entitled

to qualified immunity.

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ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and

Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

DATED: May 14, 2021

Albany, New York

Lawrénee E. Kahn

U.S. District Judge

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