# Tolbert v. Rochester City School District

> District Court, W.D. New York · March 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10361991

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361991

## How later opinions describe it (automated extraction)

- finding that comments of police officers on crime rates, police staffing, equipment shortages and budgetary matters were of public concern
- concluding speech was not protected where “[p]laintiff communicated this speech in a private and direct matter with no apparent intention of voicing her discontent to the public at large”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RICKEY L. TOLBERT, No. 6:19-cv-06433-FPG
DECISION AND ORDER
Plaintiff,
-vs-

ROCHESTER CITY SCHOOL DISTRICT,
RICHARD SMITH, DELE AKINNIY, and
GERALD CUTAIA,

Defendants.

INTRODUCTION
Rickey L. Tolbert (“Tolbert” or “Plaintiff”) instituted this action pursuant to 42 U.S.C. §
1983 against the Rochester City School District (“the District”), Richard Smith (“Smith”), Dele
Akinniy (“Akinniy”), and Gerald Cutaia (“Cutaia”) (collectively, “Defendants”). Tolbert’s
Complaint (ECF No. 1) alleges two causes of action: a First Amendment retaliation claim pursuant
to 42 U.S.C. § 1983 and a breach of contract claim pursuant to New York state law. Defendants
have filed a Motion to Dismiss (ECF No. 3) pursuant to Federal Rule of Civil Procedure 12(b)(6)
(“Rule 12(b)(6)”). Tolbert did not oppose the motion. For the reasons set forth below, Defendants’
Motion to Dismiss is granted in its entirety, and the Complaint is dismissed.
BACKGROUND
The facts are drawn from the Complaint (“Compl.”) (ECF No. 1), unless otherwise noted.
Tolbert is a 60-year-old professionally trained chef who, at all times relevant to the Complaint,
and since August 29, 2006, was employed by the RCSD as a teacher of Culinary Arts in the Home
and Careers Instruction Department at John Marshall High School (“Marshall”). Compl. ¶¶ 8-9.
After Tolbert’s original supervisor left the RCSD, Smith assumed the role of principal at
Marshall and “dismantled the Culinary Arts program.” When Tolbert complained, Smith retaliated
against him. Tolbert consequently filed a lawsuit in the Western District of New York in 2009. See
Tolbert v. Smith, et al., No. 6:09-cv-06579-CJS-JWF (2009) (“Tolbert I”). Compl. ¶¶ 11-13.

In 2016, Tolbert I settled pursuant to a Confidential Settlement Agreement and Release
(“Settlement Agreement”) which bound the parties to refrain from publicly disclosing the terms of
the Agreement and required the RCSD to establish a position of Executive Chef and employ
Tolbert in such capacity. The Settlement Agreement did not state that Tolbert’s employment in
that position was contingent upon taking and passing a Civil Service examination. Compl. ¶¶ 14-
18.

In 2016, Tolbert commenced the Executive Chef position in the RCSD’s Food Services
Division. Cutaia, the RCSD Assistant Director for Human Capital, told management and staff at
the Food Services Division that Tolbert had previously sued the RCSD and had received a
monetary settlement. He also disclosed that Tolbert was earning a salary of $75,000 per year.
Cutaia’s disclosures caused Tolbert to be disliked and resented by his co-workers, who refused to
co-operate with him. See Compl. ¶¶ 18, 21-24.

On unspecified dates, the RCSD retaliated against Tolbert by refusing to provide him the
tools and equipment necessary for him to properly perform his job, such as a work cell phone,
business cards and a mailbox, all of which were given to other supervisors after the 2016
settlement. Compl. ¶ 26. In addition, Akinniy, Tolbert’s supervisor, denied him tools such as a
baker’s chair, which meant he had to sit on “blue bins.” He was subjected to criticism for sitting
on blue bins, although other employees sat on blue bins and were not criticized. Id. ¶ 33. Akinniy
also removed duties from the list of “duties and responsibilities” listed in the Executive Chef job
description and allowed several of Tolbert’s recipes to be changed without consulting him. Id. ¶
36.

On January 1, 2018, Tolbert discovered that his office had been taken away and his desk
moved to a storage location. Id. ¶ 37.
On an unspecified date, Tolbert reported to Akinniy that there was a “sexual harassment
problem in the Central Kitchen.” Id. ¶ 38. Akinniy retaliated against Tolbert by refusing to permit
Tolbert to attend “state-wide food events, such as the food show, nutrition seminar or Food
Conference in Syracuse.” Id. ¶¶ 39-40.

In January of 2018, Cutaia advised Tolbert he would have to take and pass the Civil Service
examination in order to remain employed in the Executive Chef position, despite the fact that the
Settlement Agreement did not contain such a condition on Tolbert’s employment. Tolbert agreed
to take the exam but was prevented from taking the examination due to illness. See id. ¶¶ 41-43.

On unspecified dates, Cutaia told Tolbert that the Civil Service Commission would not
provide a makeup exam since “the list is already out” and that only a military excuse would be
accepted as a reason for not taking the examination. Id. ¶¶ 45, 50.
On January 26, 2018, Tolbert was informed that RCSD was terminating his employment
from its Food Services Division. Id. ¶ 51.

On March 9, 2018, Tolbert was advised by Civil Service that he could take a make-up test
on another date if he provided a doctor’s note stating that he was ill on the day of the examination.
Tolbert obtained a doctor’s note and mailed it to Civil Service, which later notified him that it had
not received the letter. Tolbert gave the letter1 to Cutaia to have it transmitted to Civil Service. See
Compl. ¶¶ 46-49.

Tolbert filed this lawsuit on June 13, 2019. In lieu of answering the Complaint, Defendants
moved to dismiss pursuant to Rule 12(b)(6). Tolbert sought and was granted four extensions of
time to file opposition papers. ECF Nos. 4-7. The most recent deadline for his response was March
23, 2020. However, he did not file anything by that date. The Motion to Dismiss was submitted
without oral argument on March 24, 2020. ECF No. 7.
RULE 12(b)(6) STANDARD

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the
sufficiency of the complaint under the “two-pronged approach” announced by the Supreme Court
in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564
(2007). First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements,” are not entitled to the presumption of truth and are thus not sufficient to
withstand a motion to dismiss. Iqbal, 556 U.S. at 678. Second, “[w]hen there are well-pleaded

factual allegations, a court should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief.” Id. at 679. A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. at 678. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id.

1 It is unclear if there are two letters, one of which Tolbert mailed and one of which he gave to Cutaia to mail; or if
there was just one letter which Tolbert gave to Cutaia to mail.
A court’s review under Rule 12(b)(6) “is generally limited to the facts and allegations that
are contained in the complaint and in any documents that are either incorporated into the complaint
by reference or attached to the complaint as exhibits.” Blue Tree Hotels Inv. (Canada), Ltd. v.
Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (citations omitted).

When determining whether materials “were integral to [a plaintiff]’s complaint, a necessary
prerequisite for that exception is that the ‘plaintiff[ ] rel[y] on the terms and effect of [the]
document in drafting the complaint . . . ; mere notice or possession is not enough.’” Glob. Network
Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156 (2d Cir. 2006) (quoting Chambers, 282 F.3d at
153; first alteration added; emphasis and ellipsis in original). “In most instances where this
exception is recognized, the incorporated material is a contract or other legal document containing
obligations upon which the plaintiff's complaint stands or falls, but which for some reason—
usually because the document, read in its entirety, would undermine the legitimacy of the
plaintiff’s claim—was not attached to the complaint.” Id. at 157 (citation omitted); see also Nicosia
v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016). “The exception thus prevents plaintiffs

from generating complaints invulnerable to Rule 12(b)(6) simply by clever drafting.” Id. (citation
omitted). If material is “not integral to or otherwise incorporated in the complaint, it may not be
considered unless the motion to dismiss is converted to a motion for summary judgment and all
parties are ‘given a reasonable opportunity to present all the material that is pertinent to the
motion.’” Nicosia, 834 F.3d at 231 (quoting Fed. R. Civ. P. 12(d)).
The Court “may also look to public records, including complaints filed in state court, in

deciding a motion to dismiss.” Blue Tree Hotels Inv. (Canada), Ltd., 369 F.3d at 217 (citation
omitted). “A court may take judicial notice of a document filed in another court not for the truth
of the matters asserted in the other litigation, but rather to establish the fact of such litigation and
related filings.” Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66,
70 (2d Cir. 1998); accord Global Network Commc’ns, Inc., 458 F.3d at 157.

In support of their Motion to Dismiss, Defendants have submitted several documents
extraneous to the Complaint, docketed at ECF Nos. 3-2 to 3-4.
• ECF No. 3-2 consists of (i) excerpts from RCSD Board Meetings dated January
28, 2016; March 20, 2018; June 20, 2019; (ii) a letter from Cutaia to Tolbert
dated March 8, 2018, indicating that the Monroe County Civil Service requested
he be removed from the Executive Chef position due to his name not appearing
on the most recent Civil Service list and offering him a position of employment
as a Cook; the letter was signed and dated by Tolbert on March 14, 2018; (iii)
e-mails among Cutaia and other RCSD employee’s regarding Tolbert’s failure
to appear for the Executive Chef Civil Service examination in October 2017;
(iv) a New Hire Form dated October 30, 2015, indicating that Tolbert’s
Executive Chef appointment, effective January 29, 2016, was full-time,
competitive, and provisional; and (v) a Civil Service examination application
signed and dated by Tolbert on September 14, 2015.

• ECF No. 3-3 is a copy of the Settlement Agreement.

• ECF No. 3-4 is a copy the list of applicants and their scores for the Executive
Chef Civil Service examination given on October 28, 2017.
Defendants only address the public records exception with regard to the RCSD Board
meeting minutes (ECF No. 3-2). See Defendants’ Memorandum of Law (“Defs’ Mem.”) (ECF No.
3-5) at 6; Declaration of Alison Moyer (“Moyer Decl.”) (ECF No. 3-1) ¶¶ 10, 12 (asserting that
the documents attached as ECF No. 3-2 are public records). They do not address whether any of
the other documents they submitted qualify as public records or material integral to the Complaint.
Courts in this Circuit have found that meeting minutes of local boards and administrative
bodies generally qualify as public records. Croci v. Town of Haverstraw, 175 F. Supp.3d 373, 381–
82 (S.D.N.Y. 2016) (citing Schubert v. City of Rye, 775 F. Supp.2d 689, 696 n. 3 (S.D.N.Y. 2011)
(noting that “the minutes and recordings of the City Council meetings are matters of public record
and therefore are the types of materials of which a court may take judicial notice,” but adding that
“the [c]ourt [would] consider these materials for the limit[ed] purposes of determining the fact of
the meetings and the actions taken by the relevant parties, not for the truth of any statements made
during these proceedings”); collecting cases). The Court finds that the RCSD Board Meeting
minutes, which are available at https://www.rcsdk12.org/Page/110, fall within the public records

exception. However, that does not mean that the Court may take as true any statement found in
these public documents. See Glob. Network Commc’ns, Inc., 458 F.3d at 157 (“[A]lthough [a]
final determination [by a New York City administrative body] and [the] testimony [of the president
and sole shareholder of the plaintiff company] may be public records of which a court may take
judicial notice, it may do so on a motion to dismiss only to establish the existence of the opinion,
not for the truth of the facts asserted in the opinion.”) (internal quotation marks omitted).
Here, Defendants clearly intend the Court to rely on the RCSD Board meeting minutes not

simply to establish their existence but as evidence that Tolbert’s retaliation claim fails as a matter
of law because the RCSD “was required to reassign him from the Executive Chef position, a
competitive civil service position, to a Cook position, which is non-competitive, because of
plaintiff’s failure to take the Monroe County Civil Service examination.” Defs’ Mem. at 5-6. The
Court finds that reliance on the RCSD Board meeting minutes for the purpose urged by Defendants
is inappropriate under the judicial notice exception. See Glob. Network Commc'ns, Inc., 458 F.3d
at 157 (“Here, it is clear that the extraneous documents were used not to establish their existence,
but rather to provide the reasoned basis for the court’s conclusion that ‘the record shows that
Global cannot be expected to pay its obligations to the City in a timely or honest manner.’ Analysis

of such material was therefore not appropriate under the judicial notice exception to the conversion
requirement.” (internal citation omitted)).
The only other document the Court will consider in deciding the Motion to Dismiss is the
Settlement Agreement (ECF No. 3-3), as Tolbert clearly relied on its terms in drafting his
Complaint. See, e.g., Compl. ¶¶ 14-18.

DISCUSSION
I. First Cause of Action: First Amendment Retaliation Under 42 U.S.C. § 1983

To establish a retaliation claim under 42 U.S.C. § 1983 (“§ 1983”) in violation of a public
employee’s First Amendment rights, the plaintiff must show that: “(1) his or her speech was
constitutionally protected; (2) he or she suffered an adverse employment action; and (3) a causal
connection exists between the speech and the adverse employment action.” Washington v. Cnty.
of Rockland, 373 F.3d 310, 320 (2d Cir. 2004). “It is established law in this Circuit that,
‘[r]egardless of the factual context, [courts] have required a plaintiff alleging retaliation to
establish speech protected by the First Amendment.’” Sousa v. Roque, 578 F.3d 164, 169–70 (2d
Cir. 2009) (quoting Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008); first
alteration in original).

To assess whether a plaintiff’s speech was constitutionally protected, the Court must
determine “whether [he] spoke as a citizen on a matter of public concern.” Garcetti v. Ceballos,
547 U.S. 410, 418 (2006) (citation omitted). In Garcetti, the Supreme Court “parsed the first of
the above ‘two inquiries’ into separate questions as to (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.” Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011) (quoting Garcetti,
547 U.S. at 420–22, 424). “If the court determines that the plaintiff either did not speak as a citizen

or did not speak on a matter of public concern, ‘the employee has no First Amendment cause of
action based on his or her employer’s reaction to the speech.’” Sousa, 578 F.3d at 170 (quoting
Garcetti, 547 U.S. at 418). “Whether an employee’s speech addresses a matter of public concern
is a question of law for the court to decide. . . .” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.
1999). “Whether an employee’s speech addresses a matter of public concern must be determined

by the content, form, and context of a given statement, as revealed by the whole record.” Connick
v. Myers, 461 U.S. at 138, 147-48 (1983).
The Complaint mentions two instances of speech by Tolbert for which he allegedly
suffered retaliatory measures by Defendants. The first is his filing of Tolbert I in 2009; the second
is his complaint to his supervisor, Akinniy, about a “sexual harassment problem in the Central
Kitchen.” The Court analyzes each in turn.

A. The Filing of Tolbert I as Protected Speech
1. Timeliness
Defendants argues that a retaliation claim based on Tolbert I being the protected speech is
untimely because that lawsuit was filed in 2009. In other words, Defendants contend that Tolbert’s

retaliation claims accrued upon his filing of the earlier lawsuit. The Court disagrees with this
proposition, as discussed below.
“The statute of limitations for claims brought under Section 1983 is governed by state law,
and in this case is the three-year period for personal injury actions under New York State law.”
Shomo v. City of N.Y., 579 F.3d 176, 181 (2d Cir. 2009). Thus, for Tolbert’s claim for retaliation
in violation of his First Amendment rights to be timely, his Complaint must have been filed within
three years of the accrual of his claim. “While the applicable statute of limitations in a § 1983 case

is determined by state law, “the accrual date of a § 1983 cause of action is a question of federal
law that is not resolved by reference to state law.’” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir.
2015) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)).

A plaintiff’s claims do not accrue until he “knows or has reason to know of the injury which
is the basis of his action.” Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (citations omitted).
Thus, for a First Amendment retaliation claim, the “point of accrual . . . is ‘not when plaintiff utters
the alleged protected speech, but rather when he suffers retaliatory action as a result of that
speech.’” Hughes v. Anderson, No. CV09-4042 ADS WDW, 2012 WL 3062155, at *7 (E.D.N.Y.
May 31, 2012); see also Morin v. Tormey, 620 F. Supp.2d 353, 364 (N.D.N.Y. 2009).

2. Was Tolbert I Speech by a Private Citizen on a Matter of Public
Concern?

Defendants argue that Tolbert’s earlier lawsuit does not constitute protected speech
because the lawsuit alleged discriminatory conduct only with regard to Tolbert individually and
thus did not constitute speech by a private citizen on a matter of public concern. The Court
therefore turns to the questions of whether Tolbert spoke as a citizen or an employee when filing
the earlier lawsuit, and whether the earlier lawsuit addressed a matter of public concern. See Sousa,
578 F.3d at 170 (citing Garcetti, 547 U.S. at 418).
With regard to the citizen-versus-employee question, the Supreme Court has explained that
this inquiry “sometimes has proved difficult[,]” which “is the necessary product of ‘the enormous
variety of fact situations in which critical statements by teachers and other public employees may
be thought by their superiors . . . to furnish grounds for dismissal.’” Garcetti, 547 U.S. at 418
(quotation omitted). Because the inquiry tends to be fact-bound, courts sometimes defer resolution
of this question. See, e.g., Ruotolo v. City of N.Y., 514 F.3d 184, 189 (2d Cir. 2008) (district court
held that plaintiff’s lawsuit constituted speech as a private citizen; circuit stated it “need not decide
whether Ruotolo’s lawsuit amounts to speech by a ‘citizen’ rather than by a ‘public employee’
within the meaning of Garcetti: a simpler ground is available because in any event that speech is
not ‘on a matter of public concern’”) (quotation omitted); Ross v. New York City Dep’t of Educ.,
935 F. Supp. 2d 508, 523 (E.D.N.Y. 2013) (assuming without deciding that plaintiff who filed

lawsuit “did not make th[e] speech ‘pursuant to’ his official duties (but spoke as a private citizen),”
where “it [was] clear that the lawsuit does not relate to a matter of ‘public concern’”) (quoting
Ruotolo, 514 F.3d at 188; footnote omitted); Smith v. New York City Dep’t of Educ., No. 09-cv-
9256, 2011 WL 5118797, *7 (S.D.N.Y. Oct. 28, 2011) (explaining that “[a]ny reliable conclusion
[as to whether speech was protected] would require evidence of precisely what was said and to
whom it was communicated”). The Court will follow that course here and will assume without
deciding that Tolbert was speaking as a private citizen when he filed his previous lawsuit.

To make the “public concern” determination, the Court has reviewed the allegations set
forth in the complaint filed by Tolbert’s retained counsel in Tolbert I. There, Tolbert’s allegations
of wrongdoing were attributed primarily to Smith, who is also a defendant in this action. Tolbert
alleged that Smith, upon taking over as principal at Marshall, “began dismantling the culinary arts
program as it had developed under [his predecessor]’s leadership;” Complaint ¶ 19, ECF No. 1,
Tolbert I; “eliminated the budget for the culinary arts program[;]” id. ¶ 24; and “refused to have
the janitorial staff clean the culinary arts room, as a result of which a serious rodent problem
developed in the fall of 2008.” Id. In addition, Tolbert alleged that “[o]n numerous occasions, not
only in the context of the culinary arts program, but also regarding other topics, defendant made

statements to John Marshall High School’s students that conveyed racist and discriminatory
attitudes.” Id.
“Generally, speech on ‘any matter of political, social, or other concern to the community
is protected by the First Amendment.’” Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d
247, 252 (2d Cir. 2006) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (finding that
comments of police officers on crime rates, police staffing, equipment shortages and budgetary

matters were of public concern) (quotation marks and citation omitted)) . And, the Second Circuit
has “repeatedly held[,] . . . discrimination in a government workplace is a matter of public
concern.” Id. (citing Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d 121, 125 (2d Cir.
2005) (citing Feingold v. N.Y., 366 F.3d 138, 160 (2d Cir. 2004); Mandell v. Cnty. of Suffolk, 316
F.3d 368, 383 (2d Cir. 2003)). In light of this authority, some of the allegations in Tolbert I pertain
to broader concerns beyond Tolbert’s personal interests, such as the elimination of racially
discriminatory attitudes towards and treatment of individuals at Marshall, a public high school; the
safety and health of students, staff, and visitors to the school; and the educational needs of the
student body.

However, the gravamen of Tolbert I’s Complaint is Smith’s wrongful treatment of Tolbert
personally and his role in the decision to deny Tolbert tenure. This is illustrated by the bulk of the
Complaint’s allegations. For instance, Tolbert asserted that when Smith took over as principal at
Marshall, he discontinued providing Tolbert with a paraprofessional teaching assistant and
increased the class size, which made hands-on instruction impossible and made his job more
difficult. Smith drastically cut the culinary arts program budget and asked Tolbert to develop a
new curriculum considering those cutbacks. However, Smith refused to implement the curriculum

Tolbert prepared. According to Tolbert, RCSD policy and practice was to provide third-year
probationary teachers with counseling and assistance in connection with the tenure process.
Noneheless, during the 2008-2009 academic year, Smith and his administration provided him no
counseling and took no remedial steps to assist him in obtaining tenure. Then, in August 2009, the
Superintendent made a formal recommendation to the RCSD Board of Education to terminate
Tolbert’s employment. Though the Board of Education did not approve the recommendation, the
Superintendent retained exclusive rights to grant tenure. Thus, Tolbert was denied tenure and

advised that his employment with the RCSD would terminate effective September 1, 2009. See
Compl. ¶¶ 19, 26-31, ECF No. 1, Tolbert I. The only two causes of action asserted in Tolbert I
were discriminatory interference with a contractual relationship under 42 U.S.C. § 1981 and
defamation. See Compl. ¶¶ 38-47, ECF No. 1, Tolbert I.
The Court concludes that this case is unlike Cotarelo, 460 F.3d 247, where the underlying
conduct involved complaints by police officers concerning “the growing trend in the [Police
Department] regarding bigotry and discrimination towards the Spanish-speaking police officers,”

and the plaintiff cited a number of specific discriminatory comments and conduct against various
different Spanish-speaking officers. Id. at 250 (alteration in original). Likewise, this case is
distinguishable from Konits, 394 F.3d 121, where the lawsuit at issue was “predicated on speech
about gender discrimination against a fellow employee.” Id. at 126. In contrast, Tolbert I did not
cite any specific instances of discrimination or retaliation suffered by anyone other than Tolbert
himself. And, the only relief sought in Tolbert I consisted of compensatory and punitive damages
to make Tolbert whole. Significantly, Tolbert has failed to submit any opposition to Defendants’
Motion to Dismiss and thus has not contested Defendants’ characterization of his previous lawsuit.
Notwithstanding the general, non-specific references in Tolbert I to Smith’s allegedly racist

attitude towards students, the Court finds that the previous lawsuit was not designed to bring to
light district-wide discriminatory practices or to address the impact of such practices on the high
school’s environment. See, e.g., Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993)
(finding that the plaintiff failed to state a First Amendment claim based on her filing of a lawsuit
where there was “no indication that the plaintiff ‘wanted to debate issues of sex discrimination,’
that her suit sought ‘relief against pervasive or systemic misconduct by a public agency or public
officials,’ or that her suit was ‘part of an overall effort . . . to correct allegedly unlawful practices

or bring them to public attention’”) (quoting Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412,
420 (7th Cir. 1988)); see also Huth v. Haslun, 598 F.3d 70, 74 (2d Cir. 2010) (finding that
plaintiff’s “present lawsuit, asserting claims for monetary and punitive damages, does not qualify
as speech ‘on a matter of public concern’” where complaint “alleged only that defendants retaliated
against her for specific statements she made to her supervisor and for the union activities of [a
coworker]”; finding that “[m]uch like other public employee speech that we have held not to be
protected from retaliation by the First Amendment, Huth’s lawsuit was ‘personal in nature and
generally related to her own situation’” (internal and other quotations omitted)).

Because the Court finds that Tolbert has failed to plausibly allege the required “public
concern” element, it is unnecessary to address the other elements of a First Amendment retaliation
claim.
B. The Report of the “Sexual Harassment Problem”

The other instance of speech referenced in the instant Complaint is Tolbert’s report, on an
unspecified date, to Akinniy that there was a sexual harassment problem in the Central Kitchen.
Tolbert alleges that instead of remedying the sexual harassment problem, Akinniy retaliated
against him by denying permission to attend “state-wide food events, such as the food show,
nutrition seminar or Food Conference in Syracuse.” Compl. ¶¶ 38-40.

1. Was the Report Speech by a Private Citizen on a Matter of Public
Concern?
The Court first will analyze whether Tolbert was speaking as an employee or private citizen
in making this complaint to Akinniy, who he identifies as his immediate supervisor. See Compl. ¶
27. On this question, the “general principle running through” circuit court cases applying Garcetti
“is that, when a public employee airs a complaint or grievance, or expresses concern about

misconduct, to his or her immediate supervisor or pursuant to a clear duty to report imposed by
law or employer policy, he or she is speaking as an employee and not as a citizen; in such cases,
the First Amendment does not protect the employee’s speech from discipline or retaliation by the
employer.” Weintraub v. Bd. of Educ. of City of N.Y., 489 F. Supp.2d 209, 219 (E.D.N.Y. 2007),
aff’d sub nom. Weintraub v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 593 F.3d 196 (2d Cir.
2010). The Second Circuit has clarified that “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.

Here, Tolbert expressed his concern on one occasion to his direct supervisor, and there is
no suggestion that he went outside of the “chain of command” or repeated his comments in a public
forum. The Court accordingly concludes that Tolbert has failed to plausibly allege that he was
speaking as a private citizen about the “sexual harassment problem” when he talked to Akinniy.
See, e.g., Massaro v. New York City Dep’t of Educ., 481 F. App’x 653, 655–56 (2d Cir. 2012)
(summary order) (holding that district court correctly concluded that “Massaro spoke as an
employee rather than a private citizen is supported by the facts that she aired her complaints only
to several school administrators rather than to the public, and that most of those complaints were

made in the context of internal safety and medical absence-related forms (at least one of which
was marked ‘confidential’)”); Burns v. Cook, 458 F.Supp.2d 29, 40 (N.D.N.Y. 2006) (concluding
speech was not protected where “[p]laintiff communicated this speech in a private and direct matter
with no apparent intention of voicing her discontent to the public at large”); McGuire v. City of
N.Y., No. 12-CV-814 (NGG) (PK), 2015 WL 8489962, at *7 (E.D.N.Y. Dec. 8, 2015) (“[The
plaintiff’s] speech was made through official channels. Courts in this circuit have found, that where
an employee speaks only through official channels, rather than publicly, they are more likely to be

speaking as an employee.”); Anglisano v. N.Y. City Dep’t of Educ., No. 14-CV-3677 (SLT) (SMG),
2015 WL 5821786, at *7 (E.D.N.Y. Sept. 30, 2015) (“While plaintiff asserts that she was acting
as a ‘private citizen,’ the fact that she spoke only to her direct supervisor and to the principal belies
this conclusory assertion.”).
The sole allegations in the Complaint regarding the report of the sexual harassment
problem lead to one conclusion, namely, that Tolbert spoke to Akinniy as an employee rather than
a private citizen. Therefore, the Court finds that Tolbert has not plausibly alleged the “private

citizen” element of a First Amendment retaliation claim. In light of this conclusion, it is
unnecessary to consider whether the speech was on a matter of public concern.
2. Has Plaintiff Plausibly Alleged an Adverse Employment Action?

While Tolbert’s failure to allege speech by a private citizen is a sufficient basis to dismiss
the claim based on the report to Akinniy, the Court also finds that Tolbert has failed to plausibly
allege an adverse employment action for purposes of a First Amendment retaliation claim. As an
initial matter, the Court must define the universe of adverse employment actions that could be
causally related to Tolbert’s report of a sexual harassment problem to Akinniy. As discussed
further below, the Court concludes that the only employment actions relevant to this instance of
speech are those set forth in Paragraphs 38 to 40 of the Complaint, which are the only three
paragraphs concerning the report to Akinniy.
The Court notes that Tolbert alleges other examples of adverse employment actions, i.e.,
denial of a work cell phone, business cards, and a mailbox; denial of a baker’s chair to use while
preparing food in the kitchen; the taking away of his office and the moving of his desk to a storage
location; unspecified incidents of “belittl[ing]” and “undermin[ing] his authority;” the removal of

certain job responsibilities; the alteration of several of his recipes; the requirement that he take the
Civil Service examination; and the termination of his employment for failing to take that
examination. See Compl. ¶¶ 26-37; 51-52. Except for the allegations regarding the Civil Service
Examination and his termination, Tolbert’s placement of the allegations in the Complaint indicates
that they apparently preceded Tolbert’s complaint to Akinniy about sexual harassment. Therefore,
the instances of retaliation detailed in these allegations cannot have been causally related to the
sexual harassment report.

Read in context—all of the allegations, including those pertaining to the Civil Service
examination and his termination—appear to be related to Tolbert I and the disclosures by Smith
and Cutaia about the terms of the Settlement Agreement. For instance, after asserting that Cutaia’s
statements about Tolbert’s salary bred resentment among his co-workers, Tolbert next alleges that
the RCSD retaliated against him by refusing to provide him the tools and equipment necessary for
him to properly perform his job, such as a cell phone, business cards, and a mailbox, which were
provided to other supervisors after the Settlement Agreement was reached. See Compl. ¶¶ 26-27.
As the Court has already found, Tolbert I does not constitute protected speech, and any adverse
actions taken in response to Tolbert’s filing of that lawsuit are not actionable. See Sousa, 578 F.3d

at 170.
Tolbert also specifically draws a causal connection between his report of the “sexual
harassment problem,” Compl. ¶ 38, and Akinniy’s retaliatory treatment, by alleging that Akinniy
retaliated against Tolbert instead of addressing the problem. Id. ¶ 39. Tolbert then lists the
examples of retaliation that occurred as a result of his reporting the sexual harassment problem,
i.e., the denial of permission to attend certain culinary events. Id. ¶ 40. These allegations thus
describe an instance of speech, separate and apart from Tolbert I, for which Tolbert was allegedly

subjected to retaliatory treatment. The Court accordingly considers only the instances of retaliation
asserted in Paragraph 40 of the Complaint as relating to Tolbert’s report of sexual harassment to
Akinniy.
The standard for judging whether an employment action is adverse for purposes of a First
Amendment claim entails determining whether the action in question would “deter a similarly
situated individual of ordinary firmness from exercising his or her constitutional rights.” Wrobel
v. Cnty. of Erie, 692 F.3d 22, 31 (2d Cir. 2012). “Under this ‘objective’ standard, an adverse action

must be more than ‘de minimis’ to support a First Amendment retaliation claim.” Cox v. Warwick
Valley Cent. Sch. Dist., 654 F.3d 267, 273 (2d Cir. 2011) (quoting Zelnik v. Fashion Inst. of Tech.,
464 F.3d 217, 226 (2d Cir. 2006)). “The list of adverse actions has included harsh measures, such
as discharge, refusal to hire, refusal to promote, reduction in pay, and reprimand, as well as some
lesser sanctions, such as failure to process a teacher’s insurance form, demotion, reassignment to
a place that aggravated physical disabilities, and express accusations of lying.” Wrobel, 692 F.3d
at 31. Importantly, the “objective standard” requires the plaintiff to show that “the total
circumstances of h[is] working environment changed to become unreasonably inferior and adverse
when compared to a typical or normal, not ideal or model, workplace.” Phillips v. Bowen, 278

F.3d 103, 109 (2d Cir. 2002) (emphasis supplied); accord Montero v. City of Yonkers, N.Y., 890
F.3d 386, 401 (2d Cir. 2018).
Tolbert does not allege that the denial of permission to attend the “food show, nutrition
seminar or Food Conference in Syracuse” altered his working environment at all, much less in a
manner that made it unreasonably adverse. Moreover, the Court finds that, under the applicable
objective standard, these incidents caused no more than a de minimis impact on Tolbert’s working

environment and would not have deterred a similarly situated individual of ordinary firmness from
exercising his constitutional rights. This conclusion is buttressed by comparing Tolbert’s
allegations to arguably more negative actions which courts in this Circuit have considered
insufficiently serious. See, e.g., Dillon v. Morano, 497 F.3d 247, 254 (2d Cir. 2007) (defendant’s
refusal to sign plaintiff’s performance review, the transfer to a less prestigious unit, the assignment
of menial tasks, and plaintiff’s exclusion from certain meetings did not constitute adverse
employment actions in First Amendment retaliation case); Collymore v. City of N.Y., 767 F. App’x
42, 47 (2d Cir. 2019) (summary order) (plaintiff alleged that defendants “retaliated against her by
attempting to bring disciplinary charges against her, scrutinizing her work, and denying her
overtime requests when she exercised her First Amendment rights to report that [her supervisor]

had violated the code of conduct”; circuit held that plaintiff’s allegations of retaliatory conduct
were “not ‘more than de minimis,’ and she ha[d] failed to state a plausible claim that ‘a person of
ordinary firmness’ would be deterred from exercising her free speech rights”) (quoting Zelnik, 464
F.3d at 226; internal quotation marks omitted in original); Jackson v. Peekskill City Sch. Dist., 106
F. Supp. 3d 420, 429 (S.D.N.Y. 2015) (father of minor child did not sufficiently allege that former
Superintendent’s statement, that father, a teacher, was reassigned to home due to a pending
disciplinary matter, constituted an adverse employment action because statement would not have
deterred individual of ordinary firmness from continuing to pursue action; alleged retaliation was
de minimis and not suitable for First Amendment claim).
In sum, the Court finds that the denial of permission to attend “state-wide food events” do
not approach “the boundary of [employment actions] that are serious enough to dissuade a
reasonable person from exercising her First Amendment rights.” Manon v. Pons, 131 F. Supp.3d
219, 233 (S.D.N.Y. 2015) (citing Faul v. Potter, 355 F. App’x 527, 529–30 (2d Cir. 2009)

(summary order)).
Because the Court has found that Tolbert has not plausibly stated the “private citizen” and
“adverse employment action” elements, it need not consider the remaining elements of a First
Amendment retaliation claim.

II. Second Cause of Action: Breach of Contract
For his second cause of action, Tolbert alleges that Defendants breached the Settlement
Agreement by disclosing the terms of the Settlement Agreement to Tolbert’s fellow employees
and requiring him to take and pass the Civil Service Examination as a condition to remaining in
the Executive Chef position, even though the Settlement Agreement “placed no such condition on
his employment.” Compl. ¶ 42.

“The district courts may decline to exercise supplemental jurisdiction over a claim . . . if,”
among other considerations, “the district court has dismissed all claims over which it has original
jurisdiction. . . .” 28 U.S.C. § 1367(3)(c). “[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to
exercise jurisdiction over the remaining state-law claims.” Pension Ben. Guar. Corp. v. Morgan
Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013) (citations and internal quotation marks

omitted).
Because Tolbert’s only federal claim is being dismissed, the lawsuit is in its early stages,
and there no other factors favoring the retention of jurisdiction over the state law claim, the Court
declines to exercise supplemental jurisdiction to address the breach of contract claim. See One
Communications Corp. v. J.P. Morgan SBIC LLC, 381 F. App’x 75, 82 (2d Cir. 2010) (‘Tf all of a
plaintiff's federal claims are dismissed, a district court is well within its discretion to decline to
assert supplemental jurisdiction over any state law claims.”). Accordingly, the breach of contract
claim will be dismissed without prejudice. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988) (“When the balance of these factors indicates that a case properly belongs in state court,
as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-
law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the
case without prejudice.) (footnote and citation omitted).

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 3) is GRANTED,
and the Complaint (ECF No. 1) is DISMISSED. The first cause of action for First Amendment
retaliation is DISMISSED WITH PREJUDICE. The second cause of action for breach of
contract is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is directed to close this
case.

SO ORDERED.
FRANK P. 4 Jr.
United States District Judge

Dated: March 26, 2020
Rochester, New York.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361991. Public record. Not legal advice.