Kilduff v. Rochester City Sch. Dist.

53 F.Supp.3d 610

Roseann KILDUFF, Plaintiff

v.ROCHESTER CITY SCHOOL DISTRICT, Superintendent Jean–Claude Brizard, Defendants.

No. 10–CV–06387 EAW.

United States District Court, W.D. New York.

Signed Sept. 16, 2014.

Roseann Kilduff, Rochester, NY, pro se.

Michael E. Davis, Rochester City School District–Department of Law, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Plaintiff Roseann Kilduff (“Plaintiff”) is a former employee of defendant Rochester City School District (the “RCSD”). Plaintiff alleges two causes of action pursuant to 42 U.S.C. § 1983 based on her contention that, during the course of her employment, Defendants retaliated against her for exercising her First Amendment right to freedom of speech. Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Defendants' motion is granted.

BACKGROUND

Plaintiff began working for the RCSD as the coordinator for homeless students in September 2006. (Dkt. 16–4 at ¶ 8; Dkt. 21–1 at ¶ 8). Plaintiff was responsible for operation of the RCSD's homeless program. (Dkt. 16–4 at ¶ 11; Dkt. 21–1 at ¶ 11). Plaintiff's job responsibilities included advocating on behalf of homeless students to “remove barriers to securing in a timely manner a free appropriate public education,” providing professional development to school personnel regarding the McKinney–Vento Homeless Assistance Act, 42 U.S.C. §§ 11431 et seq. (“McKinney–Vento”), and acting as a liaison between homeless students and school agencies. (Dkt. 21–4 at 71).

In January 2009, the RCSD appointed Plaintiff as the “point person” for a district-wide “Title I” audit. (Dkt. 16–4 at ¶ 8; Dkt. 21–1 at ¶ 8). In her role as point person for the Title I audit, Plaintiff communicated with Melanie Faby, the Coordinator for Homeless Education at the New York State Education Department (“NYSED”). (Dkt. 16–4 at ¶¶ 9–10, 13; Dkt. 21–1 at ¶¶ 9–10, 13). Plaintiff had no relationship with Ms. Faby prior to the Title I audit. (Dkt. 16–4 at ¶ 24; Dkt. 21–1 at ¶ 14).

The Title I audit resulted in NYSED issuing a monitoring report to the RCSD. (Dkt. 16–4 at ¶ 16; Dkt. 21–1 at ¶ 16). Plaintiff drafted the RCSD's corrective action plan in response to the monitoring report; the corrective action plan addressed issues including expenditure of homeless funds, allocation and return of funds, identification of homeless children, enrollment policy and rights of homeless students, transportation issues, and dispute resolution and appeal. (Dkt. 16–4 at ¶¶ 17–18; Dkt. 21–1 at ¶¶ 17–18).

Plaintiff claims to have had further communications with Ms. Faby in September 2009. (Dkt. 21–1 at ¶ 19). According to Plaintiff, she provided Ms. Faby with details about the “flaws in the homeless program” and specific homeless students whose rights were allegedly being violated, and further told her that the administration refused to effectively make changes. (Id. at ¶¶ 19, 28). Plaintiff also allegedly told Ms. Faby that she was being “targeted” and would not be in her position much longer. (Id. at ¶ 22). Plaintiff claims that she also shared her concerns with the New York State Technical & Education Assistance Center for Homeless Students (“NYS–TEACHS”) and an unnamed federal regulatory agency. (Dkt. 22 at ¶¶ 37, 44). The evidence indicates that Defendants were aware of Plaintiff's complaints to NYS–TEACHS (Dkt. 21–4 at 59), but there is no evidence in the record that Defendants were aware of the alleged complaints to the unnamed federal regulatory agency.

Plaintiff was granted tenure in September 2009. (Dkt. 16–4 at ¶ 29; Dkt. 21–1 at ¶ 29). Also in September 2009, Plaintiff began reporting to Audrey Cummings. (Dkt. 16–4 at ¶ 30; Dkt. 21–1 at ¶ 30). Plaintiff shared her concerns about the homeless program with Ms. Cummings. (Dkt. 16–4 at ¶ 30; Dkt. 21–1 at ¶ 30). Plaintiff alleges that she had numerous concerns about the manner in which the homeless program was being run, including about missing laptops that had been purchased with McKinney–Vento grant money. (Dkt. 22 at ¶¶ 2–9). Plaintiff claims to have contacted the RCSD's whistle-blower hotline regarding these concerns. (Id. at ¶ 10).

In late 2009, Defendants began an investigation into Plaintiff's conduct. (Dkt. 16–4 at ¶ 33; Dkt. 21–4 at 42–56). The investigation was conducted by David Mace of the RCSD's Safety and Security Department. (Dkt. 16–4 at ¶ 35; Dkt. 21–4 at 42–56). The investigation involved numerous allegations against Plaintiff, including that she failed to properly account for bus passes purchased by the homeless program; that she improperly donated homeless program school supplies; that she took laptop computers assigned to the homeless program; that she donated toiletries belonging to the homeless program; that she failed to properly account for her work time; and that she improperly removed homeless program files from her computer. (Dkt. 21–4 at 42–56). The allegations that Plaintiff failed to properly account for bus passes purchased by the homeless program and improperly donated homeless program school supplies were sustained; the remainder of the allegations were found to be unfounded or unprovable. (Id. at 55–56). During the pendency of the investigation, Plaintiff was instructed to report to the RCSD's “alternative work location,” which Plaintiff refers to as the “rubber room.” (Dkt. 16–4 at ¶ 34; Dkt. 22 at ¶ 56). Plaintiff claims she was required to report to the “rubber room” for five months. (Dkt. 22 at ¶ 62). According to Plaintiff, the investigation and her associated assignment to the “rubber room” were retaliation for her complaints to NYSED, NYS–TEACHS, and the unnamed federal regulatory agency.

Fact discovery in this matter closed on January 26, 2012. (Dkt. 14). Defendants filed the instant motion for summary judgment on April 27, 2012. (Dkt. 16). Plaintiff filed her opposition papers on June 26, 2012. (Dkt. 21).¹ Defendants filed their reply on July 10, 2012. (Dkt. 24). The case was reassigned to the undersigned on February 21, 2014, with no decision having been rendered on the pending motion. (Dkt. 31). On March 18, 2014, pursuant to a request from Defendants' counsel, the Court entered an order permitting the parties to make supplemental submissions. (Dkt. 23). Defendants made a supplemental submission on April 8, 2014, and Plaintiff filed a response to this submission on April 30, 2014. (Dkt. 33, 35).

DISCUSSION

I. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

Once the moving party has met its burden, the opposing party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. ’ ” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec., 475 U.S. at 586–87, 106 S.Ct. 1348 ). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. Plaintiff's Retaliation Claim

Plaintiff's first cause of action is for “Retaliation for Exercise of Free Speech under the First Amendment.” (Dkt. 1 at 12). In particular, Plaintiff claims that “[i]n retaliation of her exercise of free speech under the First Amendment in complaining to the NYS Department of Education Homeless Office, Plaintiff was assigned to the ‘rubber room’ for five months where she languished doing nothing all day, and was the subject of unwarranted investigations, harassment and humiliation.” (Id. at ¶ 67).

“To survive a motion for summary judgment on a First Amendment retaliation claim in the public employment context, the plaintiff must present evidence which shows [1] that the speech at issue was protected, [2] that he suffered an adverse employment action, and [3] that there was a causal connection between the protected speech and the adverse employment action.” Nagle v. Marron, 663 F.3d 100, 105 (2d Cir.2011) (quotations omitted). To show that the speech at issue was protected, a plaintiff must establish that she was speaking “as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). “Whether an employee's speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.” Lewis v. Cowen, 165 F.3d 154, 163–64 (2d Cir.1999) (citations omitted); see also Anderson v. State of N.Y., Office of Court Admin. of Unified Court Sys., 614 F.Supp.2d 404, 427 (S.D.N.Y.2009) (court must evaluate whether alleged “whistle-blowing” comments were made as part of professional responsibilities or as a private citizen).

In this case, Defendants argue that Plaintiff has...