Burdick v. Bath Central School District

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

MARGARET A. BURDICK,

Plaintiff, DECISION AND ORDER

v. 6:19-CV-06426 EAW

BATH CENTRAL SCHOOL DISTRICT,

BATH CENTRAL SCHOOL DISTRICT

BOARD OF EDUCATION, and JOSEPH

RUMSEY, in his official and individual

capacity,

Defendants.

INTRODUCTION

Plaintiff Margaret A. Burdick (“Plaintiff”) filed this action, alleging claims pursuant

to 42 U.S.C. § 1983 and New York state law against defendants Bath Central School

District (the “District”), Bath Central School District Board of Education (the “Board”),

and Superintendent Joseph Rumsey (“Rumsey”) (collectively, “Defendants”) based upon

the termination of her employment as a tenured Business Administrator. (Dkt. 1-1).

Presently before the Court is Defendants’ motion to dismiss certain of Plaintiff’s

causes of action.1 (Dkt. 7). For the reasons discussed below, Defendants’ motion is granted

in part and denied in part. In addition, the Court directs both parties to file memoranda

1 Defendants cite Federal Rule of Civil Procedure 12(b)(1) in their notice of motion

as the basis for their requested relief (Dkt. 7 at 1), but throughout both sides’ papers they

refer to Rule 12(b)(6). Accordingly, the Court will treat the motion as having been filed

pursuant to Rules 12(b)(1) and 12(b)(6).

within thirty (30) days of the entry of this Decision and Order setting forth their respective

positions as to whether Plaintiff’s claims pursuant to Article 78 of New York’s Civil

Practice Law and Rules (“Article 78”) should be dismissed without prejudice and

remanded to state court, with Plaintiff’s remaining claims stayed pending a resolution of

the Article 78 proceeding.

BACKGROUND

I. Factual Background

The following facts are taken from Plaintiff’s Verified Petition-Complaint

(“Complaint”) filed in New York state court. (Dkt. 1-1). As required at this stage of the

proceedings, the Court treats Plaintiff’s allegations as true.

Plaintiff served as a tenured Business Administrator for the District from July 16,

2010, until January 30, 2019. (Id. at ¶¶ 1, 5). In this role, Plaintiff “report[ed] directly to

the Superintendent [Rumsey]” and “ha[d] a broad range of responsibilities with respect to

the operations of the District,” which “include[d], among other things, contract

negotiations and administration, purchasing, benefits administration, budget development

and management, human resources, Medicaid cost reporting, State Aid worksheet filings,

and supervision of account clerks.” (Id. at ¶¶ 12, 13).

Although Plaintiff “initially enjoyed a positive working relationship with

Rumsey . . . [o]ver time . . . the relationship became more tense as he failed to offer proper

administrative support” and because Plaintiff “raised concerns about a number of issues

and practices at the District.” (Id. at ¶ 17). Plaintiff complained to Rumsey regarding the

need to “hire [incoming personnel] promptly or to arrange for cross-training” and that “the

District’s administrators could not keep up with their duties.” (Id. at ¶¶ 19-20). Due to the

“[t]he lack of timely support and Rumsey’s failure to insure that the incoming officials had

timely training,” the District “faile[d] to make timely filings with the New York State

Department of Education.” (Id. at ¶ 21).

At a June 2017 meeting with the then-Board president and Rumsey, Plaintiff

expressed her concern regarding the unlawful hiring of an uncertified teacher. (Id. at ¶¶ 28,

29). In response, “[a]mong other things, [Rumsey] ripped an organizational chart off of

the wall and pointed out that [Plaintiff] was subordinate to him” and “also stated in

substance that he was free to decide whom to hire.” (Id. at ¶ 30). Rumsey “asserted that

the District had been given special permission from the Education Department to hire

uncertified teachers,” but Plaintiff “was unable to locate any such permission.” (Id. at

¶ 31). Rumsey “further admonished [Plaintiff] that she was not to raise the issue of hiring

uncertified teachers with anyone in the future,” which “effectively barred her from raising

any future concerns about such hiring with the Board.” (Id. at ¶ 32). Plaintiff subsequently

learned of several other instances in which “the District [had] paid full salary and benefits

to the uncertified teachers . . . all in violation of State law.” (Id. at ¶¶ 33-34).

Plaintiff also “learned of circumstances that she believed involved prohibited

conflicts of interests involving District funds and property” and “employees’ use of their

work time and District property to further their personal outside business interests.” (Id. at

¶ 39). Plaintiff raised these concerns at the June 2017 meeting and on multiple other

occasions. (Id. at ¶¶ 40-43). “In an attempt to diminish [Plaintiff’s] willingness to raise

concerns,” Rumsey publicly humiliated her at meetings. (Id. at ¶ 44).

On January 25, 2019, without any warning, Rumsey informed Plaintiff that her

position “was being eliminated and that the responsibilities would be transferred to [the

Greater Southern Tier Board of Cooperative Educational Services (“BOCES”)].” (Id. at

¶¶ 46-47). Rumsey “attributed the elimination of the position to putative cost savings.”

(Id. at ¶ 48). “[E]ven though an analysis of potential cost savings would have been within

the scope of her job responsibilities,” Plaintiff was never asked to prepare such an analysis.

(Id. at ¶ 49). “Effective immediately, [Plaintiff] was required to vacate her office,

surrender all District property and leave the District premises.” (Id. at ¶ 51).

On January 30, 2019, the Board “ratified” Rumsey’s actions at a special meeting.

(Id. at ¶ 52). “Upon the recommendation of the Superintendent,” the Board adopted the

following resolution:

a. For reasons of economy and efficiency effective June 30, 2019, the

position in the title of Business Administrator is abolished and the work

function transferred to BOCES pursuant to Education Law 1950.

b. The person having the least seniority in that tenure area is Margaret

Burdick.

c. Margaret Burdick shall be placed on the preferred eligible list of the

District in accordance with law.

(Id.). The Board also placed Plaintiff on a paid leave of absence from January 28, 2019,

through June 30, 2019. (Id.). “[T]he Board prepared no analysis, formal or informal,

calculating the putative cost savings, considering the impact of the elimination of the

position on the District’s administrative efficiency, alternative areas of savings, or any

other issues that the elimination of the position implicated.” (Id. at ¶ 53).

“The District . . . divided [Plaintiff’s] former position into two parts.” (Id. at ¶ 55).

“Specifically, the District has allocated $120,000 to contract with BOCES for an official

to provide the bulk of the business administration services for the District, and it has also

contracted with another person . . . to provide some other portions of those services.” (Id.)

Defendants have not afforded Plaintiff “the opportunity to perform her duties pursuant to

the District’s agreement with BOCES, even though she is ready, willing and able to do so.”

(Id. at ¶ 57). Plaintiff alleges that Defendants did not provide her an “opportunity to be

heard, or any hearing at all.” (Id. at ¶ 70).

II. Procedural Background

Plaintiff commenced the instant action on May 24, 2019, in New York State

Supreme Court, Steuben County. (Dkt. 1 at ¶ 1). Defendants removed this case to this

Court on June 12, 2019, on the basis of federal question jurisdiction due to the assertion of

claims pursuant to 42 U.S.C. § 1983. (Id. at ¶¶ 7-9).

On July 1, 2019, Defendants filed the pending motion to dismiss (Dkt. 7) seeking

dismissal of the following claims: (1) Plaintiff’s § 1983 claim for alleged due process

violations; (2) Plaintiff’s § 1983 claim of First Amendment retaliation to the extent it is

asserted against the District and the Board; (3) Plaintiff’s Article 78 claim; (4) Plaintiff’s

Education Law § 3028-d claim; and (5) the official capacity claims against Rumsey.

On July 22, 2019, Plaintiff filed her response opposing Defendants’ motion, except

Plaintiff agreed to dismissal of her claim under Education Law § 3028-d and the official

capacity claims against Rumsey. (Dkt. 10 at 15, 21 n. 3). Defendants filed a reply in

further support of their motion to dismiss on July 29, 2019. (Dkt. 12).

DISCUSSION

“In considering a motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). To

withstand dismissal, a complaint must set forth “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Turkmen

v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal

quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual

allegations must be enough to raise a right to relief above the speculative level.’” Nielsen

v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at

555).

I. Plaintiff’s § 1983 Due Process Claim

“Section 1983 provides a cause of action against any person who deprives an

individual of federally guaranteed rights ‘under color’ of state law.” Filarsky v. Delia, 566

U.S. 377, 383 (2012). To state a § 1983 claim, a plaintiff must allege: (1) that the

challenged conduct was “committed by a person acting under color of state law,” and (2)

that the conduct “deprived [the plaintiff] of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.

2010) (citations omitted). “Section 1983 itself creates no substantive rights; it provides

only a procedure for redress for the deprivation of rights established elsewhere.” Thomas

v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).

A. Legal Principles

Plaintiff alleges a procedural due process violation because her tenured employment

was terminated without a hearing. (Dkt. 1-1 at 15). Defendants argue that dismissal is

proper because Plaintiff was not entitled to a pre-termination hearing and the availability

of an Article 78 proceeding as post-termination review satisfies the requirements of due

process. (Dkt. 7-3 at 2-5).

The Due Process Clause was “‘intended to secure the individual from the arbitrary

exercise of the powers of government’ . . . [and] serves to prevent governmental power

from being ‘used for purposes of oppression.’” Daniels v. Williams, 474 U.S. 327, 331

(1986) (citations omitted). To succeed on a due process claim, a plaintiff must establish

that “he or she possesses a constitutionally protected interest in life, liberty, or property,

and that state action has deprived him or her of that interest.” Valmonte, 18 F.3d at 998.

It is well-established that a tenured public employment position is a property interest

subject to due process protections. See Strong v. Bd. of Educ. of Uniondale Union Free

Sch. Dist., 902 F.2d 208, 211 (2d Cir. 1990) (“[Plaintiff’s] position as a tenured teacher is

indisputably a property interest protected by the [F]ourteenth [A]mendment.”); Sever v.

Bd. of Educ. of the Maine-Endwell Cent. Sch. Dist., No. 10-CV-774, 2012 WL 3886180,

at *2 n.1 (N.D.N.Y. Sept. 6, 2012) (“Under New York Law, a tenured teacher or

administrator has a protected property interest in her position and a right to retain it subject

to being discharged for cause in accordance with the provisions of [the Education Law].”

(internal quotation marks and citation omitted)).

“[O]nce it is determined that the Due Process Clause applies, ‘the question remains

what process is due.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)

(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). “A public employee who has a

right not to be fired without ‘just cause’ . . . has ‘a property interest in h[er] employment

that qualifie[s] for the protections of procedural due process.’” Otero v. Bridgeport Hous.

Auth., 297 F.3d 142, 151 (2d Cir. 2002) (quoting Moffitt v. Town of Brookfield, 950 F.2d

880, 885 (2d Cir. 1991)). Such an employee generally has the right to “some kind of a

hearing” prior to discharge. Loudermill, 470 U.S. at 542-43. The “pre-termination hearing

‘need not be elaborate’ so long as it provides ‘[t]he essential requirements of due process,’

which are ‘notice and an opportunity to respond.’” Rivera-Powell v. N.Y.C. Bd. of

Elections, 470 F.3d 458, 467 (2d Cir. 2006) (quoting Loudermill, 470 U.S. at 545-46).

Indeed, the Second Circuit has described the requisite pre-termination hearing as “a

minimal one.” Locurto v. Safir, 264 F.3d 154, 173 (2d Cir. 2001); see also Gilbert v.

Homar, 520 U.S. 924, 929 (1997) (“[A] public employee dismissable only for cause [is]

entitled to a very limited hearing prior to his termination, to be followed by a more

comprehensive post-termination hearing.”); Loudermill, 470 U.S. at 545 (“In general,

‘something less’ than a full evidentiary hearing is sufficient to a full administrative hearing

and judicial review.”).

For tenured public employees, “a pre-termination hearing does not purport to

resolve the propriety of the discharge, but serves mainly as a check against a mistake being

made by ensuring there are reasonable grounds to find the charges against an employee are

true and would support his termination.” Locurto, 264 F.3d at 173-74 (citing Loudermill,

470 U.S. at 545-46). Accordingly, “[a]n employee who has a property interest in his

employment ‘is entitled to oral or written notice of the charges against him, an explanation

of the employer’s evidence, and an opportunity to present his side of the story,’ before he

is subjected to the loss of employment.” Munafo v. Metro. Transp. Auth., 285 F.3d 201,

212 (2d Cir. 2002) (quoting Loudermill, 470 U.S. at 546). To require more “would impede

the government’s interest in quickly removing from service an unsatisfactory employee.”

Locurto, 264 F.3d at 174.

Tenured public employees are not entitled to pre-termination hearings where their

positions are eliminated as a result of the “governmental body implement[ing] a

‘substantial reduction in its work force’ for efficiency reasons.” Knox v. Town of Southeast,

599 F. App’x 411, 412 (2d Cir. 2015). However, in Dwyer v. Regan, 777 F.2d 825 (2d Cir.

1985), modified, 793 F.2d 457 (2d Cir. 1986), the Second Circuit extended the principles

pertaining to the discharge of a particular employee for cause to those situations where the

employee’s position is abolished under certain circumstances:

Where . . . there is no indication that the state has undertaken substantial

[efficiency] measures such as [abolishing or consolidating positions or by

implementing a considered substantial reduction in its work force]. . . but

rather is alleged to have targeted a single employee for termination, we hold

that if the state has a due process obligation to provide a hearing prior to

removing that employee from his ongoing position, and if the employee

protests the notice of elimination of his position and contends that it is but a

sham and pretext for the deprivation of his property right, the state must be

prepared to grant the employee some kind of hearing prior to the termination

of his employment.

Id. at 833. The Second Circuit made it clear that the employee under these circumstances

must “clearly allege that he requested such a hearing.” Id. (holding “only that when such

a hearing is required it need be provided only if requested” and concluding “that if [the

plaintiff] . . . cannot show that he made a timely request for a pretermination hearing, he is

not entitled to recover for the failure to receive such a hearing”).

As then-District Judge Droney stated in Perkowski v. Stratford Bd. of Educ., 455 F.

Supp. 2d 91 (D. Conn. 2006): “a pretermination hearing is required only when, first, the

employee alleges that the reduction in force was pretextual and second, the employee

demonstrates that she timely requested a pretermination hearing.” Id. at 95. Thus, where

a tenured position is abolished, the employee will be entitled to a pre-termination hearing

only if he alleges that the abolishment of the position was pretextual and that he requested

a pre-termination hearing.2 See Bailey v. Vill. of Pittsford, 981 F. Supp. 2d 178, 183

2 An exception to the Dwyer requirement, that a pre-termination hearing must be

requested, may exist where the employee did not receive adequate notice of the

abolishment of the position such that he or she did not have an opportunity to request such

a hearing. Cifarelli v. Vill. of Babylon, 894 F. Supp. 614, 621 (E.D.N.Y. 1995) (holding

that employee who was notified that position would be abolished just a few hours before

decision was finalized cannot be expected to make a timely request for a hearing), aff’d,

93 F.3d 47 (2d Cir. 1996). However, Plaintiff has not alleged that she did not receive

sufficient notice—in fact, her Complaint alleges that she was notified by Rumsey of the

plan to abolish her position on January 25, 2019 (Dkt. 1-1 at ¶ 47), the Board approved the

(W.D.N.Y. 2013) (“[I]t is well settled that a public employee seeking to challenge his

termination on the grounds that he was not afforded a pre-termination hearing must actually

request a hearing prior to termination.” (emphasis in original)); Fehlhaber v. Bd. Educ. of

the Utica City Sch. Dist., No. 6:09-CV-1380, 2012 WL 2571302, at *8 (N.D.N.Y. July 3,

2012) (“Importantly, the employee bears the responsibility to request such a hearing.”);

Pulaski v. Stratford Bd. of Educ., No. 3:04CV2015 (MRK), 2006 WL 2361724, at *4 (D.

Conn. Aug. 15, 2006) (“While it is undoubtedly true that an employee need not use any

‘magic words’ in requesting a pretermination hearing, under Dwyer the employee surely

cannot complain of the failure to provide a pretermination hearing unless the employee

sought one in some way.”); Dworkin v. City of New York, No. 95 Civ. 10261 (HB), 1996

WL 673815, at *3 (S.D.N.Y. Nov. 20, 1996) (“It is clear that the employee bears the

responsibility to request such a pretermination hearing.” (citation omitted)).

It has also been recognized by at least some district courts in the Second Circuit that

where a tenured employee’s position is abolished and contemporaneously a similar position

is created, a pre-termination hearing is required on the issue of the similarity of the two

positions. See, e.g., Bowen v. Baldwin Union Free Sch. Dist., CV 15-6829 (JMA) (GRB),

2017 WL 4083553, at *11 (E.D.N.Y. Aug. 23, 2017), adopting report and

recommendation, 2017 WL 4083573 (E.D.N.Y. Sept. 14, 2017); Broomer v. Huntington

Union Free Sch. Dist., Nos. 12 CV 574 (DRH)(ART), 12 CV 575 (DRH)(AKT), 2013 WL

4094924, at *5 (Aug. 13, 2013); Goldberg v. Bd. of Educ. of the Hempstead Sch. Dist., 777

abolishment of the position on January 30, 2019 (id. at ¶ 52), and the effective date of the

abolishment was June 30, 2019 (id. at ¶¶ 50, 52).

F. Supp. 1109, 1113 (E.D.N.Y. 1991); cf. Banigo v. Bd. of Educ. of Roosevelt Union Free

Sch. Dist., No. 06-4792, 2009 WL 577974, at *10 (E.D.N.Y. Mar. 4, 2009) (where no new

position is created, but instead job duties are transferred to an existing position, no pre-

termination hearing is required). These decisions appear grounded in the decision of

DeSimone v. Bd. of Educ. South Huntington Union Free Sch. Dist., 612 F. Supp. 1568

(E.D.N.Y. 1985), where the board of education abolished the plaintiff’s position of high

school dean, and at the same time established a new position of high school administrative

assistant, and the district court held that due process required a pre-termination hearing on

the issue of the similarity of the two positions. Id. at 1570-71. DeSimone was decided

prior to Dwyer, and the Second Circuit has expressly declined to reach the issue of whether

a pre-termination hearing is required when a tenured teacher’s position is abolished and a

similar post is concurrently created. Caruso-Famiglietti v. Huntington Union Free Sch.

Dist., 566 F. App’x 92, 92-93 (2d Cir. 2014).

B. Analysis

It is against this landscape that Plaintiff’s due process claim is considered. As an

initial matter, the Court rejects Defendants’ argument that Plaintiff’s allegation that she

was “tenured” is insufficient to allege Plaintiff had a property interest in her continued

employment. (Dkt. 7-3 at 2). Indeed, Plaintiff’s allegations are fully supported by the

School Board’s May 15, 2013, minutes, confirming the granting of tenure to Plaintiff. (See

Dkt. 11-1 at 1 (“Upon recommendation of the Superintendent of Schools . . . [the Board

grants] tenure to [Plaintiff] in the area of School District Business Leader effective July 14,

2013.”)). Thus, Plaintiff has sufficiently alleged a constitutionally protected property

interest in her employment.

However, Plaintiff has failed to plausibly allege a due process claim based on the

failure to provide a pre-termination hearing, because she has neither alleged that she

requested a pre-termination hearing (as required by Dwyer) nor has she alleged that the

Board contemporaneously created a new position in which it transferred Plaintiff’s job

duties (as required by DeSimone).

Nowhere in Plaintiff’s Complaint does she allege that she requested a pre-

termination hearing. In other words, the Complaint plainly alleges that Plaintiff’s position

was abolished for allegedly pretextual reasons (Dkt. 1-1 at ¶¶ 46-52), but Dwyer requires

that Plaintiff request a pre-termination hearing, and she makes no such allegations in her

Complaint. (See Dkt. 1-1). In an attempt to avoid this deficiency, Plaintiff argues in

opposition to Defendants’ motion that her service of a notice of claim satisfied this

requirement. (Dkt. 10 at 14). Not only is this allegation not contained in Plaintiff’s

Complaint, but a review of the notice of claim does not support Plaintiff’s position. The

notice of claim alleges that the termination of Plaintiff’s position was pretextual (Dkt. 7-2

at ¶ 4), but no reasonable view of the allegations in the notice of claim could support a

conclusion that Plaintiff was requesting a pre-termination hearing. First, the timing does

not support such a conclusion—Plaintiff was notified that her position was being

eliminated on January 25, 2019, (Dkt. 1-1 at ¶¶ 47, 52), and yet Plaintiff did not file the

notice of claim until on or about April 12, 2019 (Dkt. 7-2 at 1-4). While Plaintiff’s

administrative leave had not yet expired (which corresponded to the effective date of the

abolishment of Plaintiff’s position), it is clear that in late January, Plaintiff had been

required to “vacate her office, surrender all District property and leave the District

premises.” (Dkt. 1-1 at ¶ 51). Thus, it is not plausible to allege that a notice of claim

served over two months later somehow constituted a request for a pre-termination hearing.

Second, there is no reference in the notice of claim to a hearing or a request for a hearing.

(Id.). Plaintiff’s contention that her conclusory reference to “denial of Due Process” (Dkt.

10 at 14) somehow represented a demand for a pre-termination hearing—particularly when

viewed with the timing of the notice of claim—is simply not plausible. While the request

for a pre-termination hearing does not require “magic words,” Pulaski, 2006 WL 2361724,

at *4, and it is certainly feasible that a notice of claim could contain a request for a pre-

termination hearing, cf. Fehlhaber, 2012 WL 2571302, at *8 (although there were

communications about the termination from both the plaintiff and his attorney, they did not

explicitly request a pre-termination hearing, and the notices of claim were filed before and

after the alleged wrongful abolishment), Plaintiff has failed to plausibly allege that she

made any such request.

Furthermore, even if the line of cases originating with DeSimone supported the

notion that a school district must automatically provide a pre-termination hearing when it

abolishes a position and contemporaneously creates a new position with similar job duties,

Plaintiff has not alleged that a new position was created with similar job duties. In her

memorandum of law submitted in opposition to Defendants’ motion, Plaintiff argues that

she has alleged “a concurrent creation of at least one new position at BOCES and the failure

to offer her the opportunity . . . to fill those positions” and that she “plainly alleges that the

District contracted with BOCES for a new position to fulfill the bulk of Plaintiff’s

responsibilities.” (Dkt. 10 at 12). As Defendants point out, Plaintiff is not alleging that

the District created a new position—but rather a third party purportedly created the position

(BOCES). (Dkt. 12-2 at 6). Moreover, notwithstanding Plaintiff’s attempt to recast the

allegations of her Complaint in her memorandum of law, a careful review of Plaintiff’s

Complaint reveals that Plaintiff has not alleged that a new position was created at the time

her position was abolished. Instead, the Complaint alleges that her job duties are now

divided between an official with BOCES and “another person,” but there is no allegation

that a new position was created with substantially the same job responsibilities. (Dkt. 1-1

at ¶ 55). Thus, even if the law in this Circuit required a pre-termination hearing whenever

a tenured individual’s position is abolished and a similar post is concurrently created,

Plaintiff has not plausibly alleged such an occurrence in this case.

Finally, it is well-established that an Article 78 proceeding affords a tenured

employee adequate due process post-termination. See, e.g., Locurto v. Safir, 264 F.3d 154,

175 (2d Cir. 2001) (“An Article 78 proceeding therefore constitutes a wholly adequate

post-deprivation hearing for due process purposes.”); Tessler v. Paterson, 451 F. App’x

30, 33 (2d Cir. 2011) (where employee failed to request a pre-termination hearing, a post-

deprivation Article 78 proceeding provided sufficient due process protections under the

circumstances). Accordingly, Plaintiff’s § 1983 claim based upon due process violations

fails to state a claim, and Defendant’s motion to dismiss is granted.

II. Plaintiff’s § 1983 First Amendment Retaliation Claim

Plaintiff’s First Amendment retaliation claim arises out of Defendants’ termination

of Plaintiff in retaliation for her complaints about operations of the District, including the

unlawful hiring of uncertified teachers and conflicts of interest. (Dkt. 1-1 at ¶¶ 75-76).

The claim is alleged against all Defendants, but the motion to dismiss is directed only to

the Monell liability aspect of this claim as asserted against the District and the Board.

Defendants contend that Plaintiff has failed to allege participation by the Board or District

in any alleged retaliation and Plaintiff’s “cat’s paw” theory of liability is not sustainable.

(Dkt. 7-3 at 8).

A municipality or other local government may be liable under § 1983 only “if the

governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person

‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011)

(citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 692 (1978)). “In other words,

municipalities are responsible only for their own illegal acts, and cannot be held vicariously

liable under § 1983 for their employees’ actions.” Cash v. Cty. of Erie, 654 F.3d 324, 333

(2d Cir. 2011) (internal quotation marks omitted).

“[T]o establish municipal liability under § 1983, a plaintiff must prove that ‘action

pursuant to official municipal policy’ caused the alleged constitutional injury.” Id.

(quoting Connick, 563 U.S. at 60). Official municipal policy includes “the decisions of a

government’s lawmakers, the acts of its policymaking officials, and practices so persistent

and widespread as to practically have the force of law.” Connick, 563 U.S. at 61. Thus, to

successfully state a claim for Monell liability, a plaintiff must “make factual allegations

that support a plausible inference that the constitutional violation took place pursuant either

to a formal course of action officially promulgated by the municipality’s governing

authority or the act of a person with policy making authority for the municipality.” Missel

v. Cty. of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (quoting Vives v. City of New

York, 524 F.3d 346, 350 (2d Cir. 2008)).

The Court disagrees with Defendants’ contention that the District and the Board are

not sufficiently personally implicated in the alleged retaliation so as to sustain a claim.

Plaintiff alleges that she raised her concerns about unlawful and improper practices with

Rumsey and “at least one member of the Board” (Dkt. 1-1 at ¶ 25), that she participated in

a meeting with Rumsey and the then-Board President in June 2017 concerning the hiring

of an uncertified teacher (id. at ¶¶ 28-29), and that the Board unanimously agreed with

Rumsey’s recommendation to eliminate Plaintiff’s position even though it “prepared no

analysis, formal or informal, calculating the putative cost savings, considering the impact

of the elimination of the position on the District’s administrative efficiency, alternative

areas of savings, or any other issues that the elimination of the position implicated,” (id. at

¶¶ 52-53). At this stage of the proceedings, Plaintiff’s allegations are sufficient to plausibly

allege the Board’s and District’s direct involvement in the alleged retaliatory conduct, and

accordingly Defendants’ motion to dismiss is denied. Because the Court is denying the

motion to dismiss the retaliation claim, it does not reach Plaintiff’s alternative argument

that Rumsey was a policymaker for purposes of Monell liability. See Hurdle v. Bd. of Educ.

of City of New York, 113 F. App’x 423, 425 (2d Cir. 2004) (school district’s liability under

Monell may be premised on theory that district employee was acting as final policymaker,

and whether employee was such a policymaker must be decided pursuant to state law

before the case is submitted to the jury).

III. Plaintiff’s Article 78 Claim

Defendants seek dismissal of Plaintiff’s Article 78 claim on the basis that it is

precluded by her claim under New York Civil Service Law § 75-b. (Dkt. 7-3 at 5-6).

Defendants also argue that the Article 78 claim, even if allowed to proceed with the § 75-b

claim, cannot be pursued against Rumsey. (Id. at 10). For the reasons discussed below,

the Court denies without prejudice Defendants’ motion to dismiss the Article 78 claim, and

instead directs the parties to file submissions explaining why the Article 78 claim should

not be dismissed without prejudice and remanded to state court, with a stay imposed on

Plaintiff’s remaining claims pending a resolution of the Article 78 proceeding in state court.

Neither Defendants nor Plaintiff cite caselaw directly addressing whether an Article

78 proceeding may be maintained along with a claim under New York Civil Service Law

§ 75-b. (Dkt. 7-3 at 5-6; Dkt. 10 at 15-17). Indeed, caselaw not cited by either party

suggests that the two types of claims are not mutually exclusive. See Garrity v. Univ. of

Albany, 301 A.D.2d 1015, 1017 (3d Dept. 2003) (while § 75-b claim was properly

dismissed, Article 78 claim reinstated and case remanded for a hearing); Chamberlin v.

Jacobson, 260 A.D.2d 317, 317 (1st Dept. 1999) (Article 78 proceeding based upon alleged

violation of § 75-b); cf. Dibiase v. Barber, No. CV 06-5355(AKT), 2008 WL 4455601, at

*8-9 (E.D.N.Y. Sept. 30, 2008) (discussing but not deciding argument that employee first

had to pursue Article 78 proceeding based upon wrongful termination before pursuing

§ 75-b claim).

The Court declines to resolve this issue, as well as whether the claim can be pursued

against Rumsey, because it is generally inappropriate for a federal district court to exercise

supplemental jurisdiction over an Article 78 claim. See, e.g., Bartolini v. Cassels, No. 17-

CV-5671 (NSR)(PED), 2018 WL 3023161, at *6 (S.D.N.Y. June 18, 2018) (“District

Courts in this Circuit have consistently declined to exercise supplemental jurisdiction over

Article 78 claims.”) (collecting cases); Nitti v. Cty. of Tioga, No. 3:14-CV-0954 GTS/DEP,

2015 WL 5708637, at *9 (N.D.N.Y. Sept. 28, 2015) (“Courts have found that compelling

reasons to decline to exercise supplemental jurisdiction exist in the very nature of an Article

78 proceeding[.]” (quotations omitted)); East End Eruv Ass’n, Inc. v. Town of

Southampton, No. CV 13-4810(AKT), 2014 WL 4826226, at *18 (E.D.N.Y. Sept. 14,

2014) (“The Court agrees with the essentially unanimous position of the New York federal

district courts that the very nature of an Article 78 proceeding presents such compelling

reasons to decline exercising supplemental jurisdiction over a plaintiff’s Article 78 claim.”

(internal quotation marks and citations omitted)); Beckwith v. Erie Cty. Water Auth., 413

F. Supp. 2d 214, 226-27 (W.D.N.Y. 2006) (“[T]his court has no original or supplemental

subject matter jurisdiction over [an] Article 78 proceeding as neither federal nor New York

state law empower the federal courts to consider such claims, and, under New York law,

authority to grant relief pursuant to an Article 78 proceeding is exclusively vested in New

York Supreme Court.”).

Accordingly, the Court directs the parties to each file written memoranda within

thirty (30) days of the entry of this Decision and Order, explaining why the Article 78 claim

should not be dismissed without prejudice and remanded to state court, with Plaintiff’s

remaining claims stayed pending a resolution of the Article 78 proceeding. See East End

Eruv Ass’n, Inc., 2014 WL 4826226, at *21 (dismissing Article 78 claim without prejudice

and staying remaining claims until Article 78 proceeding resolved by state court).

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss (Dkt. 7) is granted in part

and denied in part. In particular, the motion is granted with respect to Plaintiff’s § 1983

claim for alleged due process violations, Plaintiff’s claim pursuant to New York Education

Law § 3028-d, and the official capacity claims against Rumsey. Defendants’ motion is

denied as to Plaintiff’s § 1983 First Amendment retaliation claim, and it is denied without

prejudice as to Plaintiff’s Article 78 claim, with the parties directed to submit memoranda

within thirty (30) days explaining their respective positions on whether the Article 78 claim

should be dismissed without prejudice and remanded to state court, with the remaining

claims in this proceeding stayed pending a resolution of the Article 78 proceeding.

SO ORDERED.

________________________________

ELIZABETH A. WOLFORD

United States District Judge

Dated: March 24, 2020

Rochester, New York