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McAvey v. Orange-Ulster BOCES
Citations: 805 F. Supp. 2d 30; 2011 U.S. Dist. LEXIS 90884; 2011 WL 3586150Docket: 07 Civ. 11181
Court: District Court, S.D. New York; August 12, 2011; Federal District Court
Defendants Orange-Ulster BOCES, Jeffrey Smith, Jake McHale, and Marguerite Flood have filed a motion for summary judgment under Federal Rule of Civil Procedure 56 in response to a complaint by Plaintiff Colleen McAvey, which alleges retaliation for exercising her First Amendment rights. McAvey's claims include verbal and written admonishments, denial of a position in the P.M. hours program, removal as a presenter at a professional conference, lack of disciplinary action against employees making derogatory remarks about her, email reviews, denial of a summer school position in 2006, and a transfer in December 2006. McAvey, a licensed social worker with a Master's Degree from Fordham University, has been employed by BOCES since 1998, primarily working with students to address their social and emotional needs. Smith served as Deputy Superintendent until September 30, 2006; McHale was Principal of Flannery High School from 1989 to March 2009; and Flood has held key personnel roles since 2006. The facts established indicate that during a counseling session on September 9, 2005, McAvey was informed by two students about inappropriate behavior by a teacher towards another student, D.A., which the students had previously reported to McHale and another teacher. The motion for summary judgment was heard on March 30, 2011, with the court denying it in part and granting it in part, although specifics of the ruling are not detailed in the excerpt provided. D.A. reported to his counselor that Ms. A exhibited inappropriate behavior, including touching him, following him to the bathroom, and making suggestive comments, which D.A. interpreted as indicative of sexual interest. The counselor intended to report these allegations to her supervisor, McHale, and D.A. requested to be removed from Ms. A's class. Under New York State law, the counselor recognized her obligation to report suspected child abuse but failed to submit a written report. After discussing the situation with Sorice, who was already aware of it, the counselor attempted to inform McHale, who was initially unavailable. When McHale returned, he indicated that he had already received similar complaints from two other students and would address the matter on September 12, 2005. On that date, the counselor also mentioned to Student Resource Officer Ramsey that Ms. A had allegedly sexually abused D.A., although she did not request any action from him. D.A. continued to express his desire to be removed from Ms. A's class, leading to a meeting with McHale, where D.A. was accused of trying to manipulate the situation and was directed to return to class. Subsequently, D.A. was hospitalized and left school. Days later, McHale inquired whether the counselor had contacted D.A.'s father and mentioned that someone had reported the school was covering up abuse allegations. The counselor denied speaking to D.A.'s father. On September 16, 2005, Ramsey approached the counselor regarding his investigation into the child abuse claim, leading to a discrepancy about the timing of their previous discussions on the matter. The counselor recounted the details of D.A.'s complaint to Ramsey. On September 20, 2005, Times Herald Record Reporter Dianna Cahn contacted the Plaintiff regarding a police report about child abuse allegations at BOCES, which the Plaintiff denied knowing about. Cahn informed the Plaintiff that her name was in the report and read it aloud to her, after which the Plaintiff declined to comment. The Plaintiff subsequently spoke with Cahn again on September 21, stating her inability to comment due to not having a copy of the report. She visited the Goshen police station that morning to request the report and was advised to file a Freedom of Information Law (FOIL) request, which she completed the same day. On September 22, Cahn left a message for the Plaintiff at Flannery High School, while the Plaintiff prepared a summary of events related to a complaint by D.A., without mentioning any inappropriate touching. The following day, the Plaintiff informed McHale and District Superintendent Dr. Robert Hanna about Cahn's message, and Hanna instructed her to direct all media inquiries to the Superintendent's office. McHale later issued a memorandum stating that all media matters were handled by BOCES Central Administration. By September 28, the Plaintiff received a copy of Ramsey's report, which she claimed contained false information, including inaccuracies regarding when Ramsey learned about the allegations and her prior communications with him. The Plaintiff believed she had not received all requested documents and, after consulting Police Chief Marsh, was directed to BOCES administration. She later contacted Town Supervisor Honey Bernstein to complain about the police department's handling of her FOIL request and to address inaccuracies in Ramsey's report. The Plaintiff received a "Supporting Deposition" signed by McHale, which she complained about not having received earlier. She did not inform BOCES personnel about her FOIL request. When Marsh and Ramsey questioned McHale about the Plaintiff's request for the police report, McHale expressed uncertainty but acknowledged her right to request it. McHale did not communicate with the Plaintiff regarding her request. On October 7, McHale asked the Plaintiff to sign a "Confidential Report of Allegation" form concerning D.A.'s complaint, which she refused due to a perceived date inaccuracy. The Plaintiff attended a meeting on October 14 with several BOCES officials, including her union representative. Smith was aware prior to a meeting that the Plaintiff had requested Ramsey's report from the Goshen Police Department. During the meeting, Smith advised the Plaintiff that it was appropriate to report D.A.'s complaint to McHale but also labeled her unprofessional, asserting she had no right to communicate with the police or the media. Smith instructed the Plaintiff not to contact the Goshen Police Department or the Times Herald Record. The Plaintiff disclosed for the first time in this meeting that Cahn had reached out to her regarding D.A.'s complaint. Flood and McHale remained silent throughout this meeting. Following the meeting, Smith sent a follow-up letter to the Plaintiff on November 8, 2005, summarizing the discussed issues, which was added to her personnel file and distributed to others. In the fall of 2005, BOCES sought to fill a counselor position in its after-school program, and the Plaintiff expressed interest via email to McHale. She was not offered the position, with Defendants attributing this to concerns about her work performance. The Plaintiff asserted that McHale typically recommended candidates for such positions and that his recommendations were usually accepted. After the Plaintiff filed a lawsuit in June 2008, McHale wrote a memo about the hiring decision for the counselor position, stating that Smith had instructed him not to consider the Plaintiff due to unspecified performance concerns, despite Smith's lack of direct supervisory authority over her. Smith claimed he would not normally intervene in decisions regarding part-time counselor positions. Katerina Farganis, who had less experience, was awarded the position, as McHale's recommendations were generally followed, though final hiring decisions rested with Vaughn and BOCES Central Administration. Flood had no say in the decision regarding the Plaintiff’s application. Additionally, during the fall of 2005, the Plaintiff was invited to present at a BOCES professional conference but was later informed by Dr. Mary Ann Wilson that her presentation had been canceled due to concerns about audience interest. The Plaintiff speculated that Wilson had been instructed not to allow her to present but acknowledged she lacked evidence for this claim. Prior to the cancellation, the coordinator Leah Fitzgerald had praised the Plaintiff's presentation outline. McHale expressed no objection to the Plaintiff presenting at a conference, though the Plaintiff questioned the credibility of this testimony, citing McHale as an interested party. McHale was not responsible for selecting presenters and was unaware of derogatory remarks made by co-workers about the Plaintiff’s weight, a claim disputed by the Plaintiff. The Plaintiff also alleged that Farganis made additional derogatory comments, which she did not report to BOCES administrators. In April 2006, Vaughn informed Flood of concerns regarding the Plaintiff’s performance, leading to the decision to review emails from the Plaintiff’s BOCES account, although the Plaintiff found Flood’s rationale for this unclear. The Plaintiff communicated with various BOCES officials regarding her concerns about a complaint and was advised by Flood to refrain from contacting law enforcement until an investigation was complete. In late May 2006, the Plaintiff submitted a letter to the BOCES Board detailing her complaints. She applied for a summer school position in 2006 but was denied, with BOCES citing staffing decisions based on familiarity with the student population. The Plaintiff contested this reasoning, highlighting her relevant experience, and noted that not all high school social workers were given summer positions that year. McHale had no role in hiring for summer positions. In December 2006, McHale requested the Plaintiff’s transfer from Flannery High School, citing conflicts with co-workers and complaints from parents, as well as the Plaintiff’s own expressed desire to transfer. Plaintiff claims that critical issues regarding her employment were not communicated to her and asserts that she was well-regarded by Defendants based on 2000 evaluations. She was informed by Zwick about her transfer from Flannery High School to a social worker position at Chester Learning Academy, but Zwick allegedly did not provide reasons for this transfer, which Plaintiff disputes. The transfer occurred shortly after Plaintiff reported a colleague for threatening to bring a weapon to school. The summary judgment standard requires that if the evidence on file shows no genuine issue of material fact, judgment may be granted as a matter of law. The moving party must demonstrate the absence of factual issues, after which the non-moving party must present specific facts indicating a genuine trial issue. The court evaluates summary judgment motions by viewing evidence favorably for the non-moving party and may only grant such judgment when no reasonable jury could find for that party. If conflicting narratives exist, particularly if one is clearly contradicted by the record, the court should not adopt that version for summary judgment purposes. Regarding the retaliation claim concerning the denial of a part-time counselor position, the court found that Plaintiff must demonstrate a protected interest under the First Amendment, that Defendants' actions were motivated by her exercise of that right, and that such actions chilled her First Amendment rights. The court acknowledged that Plaintiff's Freedom of Information Law (FOIL) request constituted protected speech, as she alleged retaliation for exposing potential fraud by school officials. It emphasized the legal distinction that public employee speech made in the course of official duties is generally not protected, referencing pertinent case law. A teacher's letter to a newspaper regarding school funding policies was protected under the First Amendment, as established in Pickering, which aimed to prevent school administrators from stifling teachers' contributions to public discourse. In contrast, the Second Circuit in Weintraub ruled that a teacher's union grievance concerning supervision was not protected, as it was made in the capacity of an employee rather than a citizen. In the case of McAvey, her FOIL request to the police department was deemed citizen speech, distinct from her job responsibilities, and thus protected from retaliation. Evidence suggests a possible causal connection between McAvey's protected speech and the denial of her application for a part-time counseling position. Although certain meetings and communications did not constitute actionable retaliation, admonishments by Smith indicated potential retaliatory intent. Causation can be established through circumstantial evidence or direct evidence of animus, such as conduct or statements reflecting a retaliatory attitude. Despite Smith's claims of non-involvement in decision-making regarding the position, he allegedly influenced the decision against McAvey, who was not considered for the role that was given to a less experienced candidate. The close temporal proximity between McAvey's protected activity and the adverse employment action supports the inference of a causal link. The question of whether the denial of the position deterred her exercise of First Amendment rights remains a factual issue for trial. The claim against Flood is dismissed due to lack of involvement in the decisions, while the retaliation claim requires further factual examination at trial. Summary judgment is denied for this claim. The motion to dismiss the remaining retaliation claims is granted. The plaintiff's interactions with Cahn do not constitute protected speech under the First Amendment, as no actual conversation occurred; the plaintiff failed to make any statements during the interactions. For a viable First Amendment retaliation claim, actual engagement in protected speech is necessary, as established in Frisenda v. Incorporated Village of Malverne. On September 20, 2005, Cahn contacted the plaintiff, who only declined to comment after Cahn read a report. The following day, she again did not comment and did not respond to a voicemail from Cahn. Since the plaintiff made no statements, including any related to matters of public concern, a First Amendment retaliation claim cannot be sustained. Even if there had been a conversation, it would not be protected speech because, as a school social worker, she was legally obligated to report allegations of child abuse, and her involvement stemmed from her professional duties. This is supported by Garcetti and Weintraub, which hold that speech arising from public employment duties is not constitutionally protected. Additionally, the October 14, 2005 meeting and the November 8 letter are not causally connected to any protected speech and do not qualify as adverse employment actions. The plaintiff failed to demonstrate a causal link between her FOIL request—recognized as protected speech—and the reprimands she received, as these were related to her interactions with the press and confidentiality concerns. Moreover, the November 8 letter affirmed her actions as a school counselor, indicating that they were appropriate. Plaintiff was reprimanded by Smith during a meeting on October 14, 2005, and in a November 8 Letter for not adhering to the required processes set by BOCES in compliance with state and federal law. New York Education Law 1127 ensures the confidentiality of abuse reports in educational settings, making unauthorized disclosures a misdemeanor. Additionally, the Family Educational Rights and Privacy Act (FERPA) protects the confidentiality of educational records. There is no evidence that the reprimands stemmed from Plaintiff's Freedom of Information Law (FOIL) request for a report held by a local newspaper. Citing Thomas v. iStar Financial, Inc., the court dismissed the retaliation claim as Plaintiff did not link the reprimands to any protected speech. The legal standard for determining if an employment action is adverse in First Amendment retaliation cases requires that the actions would deter a similarly situated individual from exercising their rights. The reprimands and admonishments in this case did not meet this threshold, as established in prior cases such as Nix v. Cino and Stembridge v. City of New York, where mere reprimands without tangible negative impacts do not constitute adverse employment actions. Furthermore, Plaintiff's removal from a conference presenter role was not connected to her protected speech. The conference coordinator cited logistical reasons for the removal, and Plaintiff failed to provide evidence linking any BOCES administrators to this decision. Additionally, there was no evidence that the removal was an adverse employment action. Finally, Plaintiff's claim regarding McHale's failure to address derogatory remarks from co-workers does not support a retaliation claim, as Plaintiff did not report these comments to any BOCES officials. McHale did not take disciplinary action against co-workers who allegedly made derogatory remarks about the Plaintiff, claiming he was unaware of the comments, despite the Plaintiff asserting that McHale was present during the incidents. The failure to discipline has not been shown to constitute retaliation, as established by case law. In several cited cases, including Wilburn v. Eastman Kodak Corp. and Smith v. New Venture Gear, Inc., courts found that isolated incidents of offensive conduct did not rise to the level of creating a hostile work environment. The review of the Plaintiff's emails by Flood was part of an investigation into her alleged misuse of BOCES computers and lacked evidence of retaliatory intent, as it was temporally and causally separate from her protected speech. Additionally, the Plaintiff's denial of a position in the 2006 summer school program was attributed to a lack of student enrollment, a reason she did not dispute. Her claims about being denied additional summer hours were also unsupported, as she did not know the decision-maker or provide evidence linking these denials to her protected speech. Overall, the Plaintiff failed to establish a causal connection between her actions and the adverse employment decisions. Plaintiff's transfer from Flannery High School to Chester Learning Academy in December 2006 is not causally linked to her protected speech, as she did not inquire about the reason for the transfer. Legal precedent indicates that a gap of over one year between protected conduct and adverse employment action negates the inference of retaliation. The articulated reasons for the transfer included undermining BOCES administration, creating a hostile work environment, complaints from parents, and Plaintiff's discomfort at the high school. Plaintiff failed to challenge the validity of these reasons or connect individual defendants Flood and Smith to the decision, as Smith was no longer employed by BOCES at the time. Consequently, claims against the individual defendants are dismissed due to lack of causation between the alleged protected conduct and adverse actions, such as admonishments, removal from a speaking engagement, denial of summer work, and the transfer itself. Additionally, while Smith's actions indicated some retaliatory animus, they did not constitute adverse employment actions related to the FOIL request. The claim regarding McHale's failure to discipline co-workers for derogatory comments also fails to establish retaliation. The individual defendants' argument for qualified immunity is rejected because a violation of Plaintiff's First Amendment rights concerning the denial of a part-time counseling position is plausible, with a potential triable issue regarding Smith's involvement in that decision. Ultimately, the motion for summary judgment by the defendants is granted in part and denied in part.