Kirby v. Yonkers Sch. Dist.

767 F.Supp.2d 452

267 Ed. Law Rep. 675

Jeffrey KIRBY, Plaintiff,

v.YONKERS SCHOOL DISTRICT and Bernard Pierorazio, in his individual capacity, Defendants.

No. 07 Civ 10684 (WGY).

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

Feb. 11, 2011.

Michael Howard Sussman, Sussman & Watkins, Goshen, NY, for Plaintiff.

Vincent Paul D'Andrea, Sr., Donoghue, Thomas, Auslander & Drohan, Scarsdale, NY, for Defendants.

Memorandum and Order

WILLIAM G. YOUNG, District Judge.¹I. INTRODUCTION

Jeffrey Kirby (“Kirby”) brings this suit against the Yonkers School District (the “District”) and Bernard Pierorazio (“Pierorázio”), the Superintendent of the District, (together, the “Defendants”) alleging violations of his First and Fourteenth Amendment rights, and of New York state law. Specifically, Kirby alleges that the Defendants: (1) retaliated against him for exercising his First Amendment right to free speech; (2) violated his Fourteenth Amendment rights to procedural and substantive due process; and (3) violated the laws of the state of New York. Compl., ECF No. 1. On October 30, 2009, the Defendants filed a motion for summary judgment. Mot. Summ. J., ECF No. 14. The Court held an oral motion hearing on November 16, 2010, and took the motion under advisement.

II. FACTUAL BACKGROUND ²

In September 2006, Kirby was hired as a probationary tenure-track health teacher by the District and assigned to teach at the Pearls Hawthorne School, which serves pre-kindergarten through eighth grade. Affirmation Supp. Mot. Summ. J., Ex. C, ECF No. 15; Watkins Affirmation, Ex. 12, Kirby Dep. 16–18, ECF No. 24–3. Elizabeth DiDomenico (“DiDomenico”), a teacher with 35 years experience in the District, was his informal mentor. See Kirby Dep. 78.

The Icebreaker Exercise

On the morning of January 24, 2007, Kirby taught a class to seventh graders involving health and human reproduction. Compl. ¶ 10. Before the class, Kirby spoke with DiDomenico and requested from her some ideas to make the students feel more comfortable with the topic. Kirby Dep. 54:15–21. She suggested an icebreaker exercise (“the Icebreaker”) that allegedly she had done for many years at the middle school level. Id. at 55:12–18. This Icebreaker consisted of asking certain students to volunteer to draw the male reproductive system on the blackboard and label its parts (as discussed in the previous class). Id. at 59:8–20.

On that day, during the class, five or six children went to the blackboard, and after drawing the male reproductive system, they labeled sperm and testosterone in a manner consistent with the textbook. Id. at 68:16–25. It was only after the drawings were almost complete that Amanda, a female student who was late for class, entered the classroom and saw the drawings on the blackboard. Id. at 68:7–10, 70:10–12. Kirby mentioned that the class was doing the Icebreaker. Id. at 70:17. Less than a minute after entering the class, Amanda left the class purportedly to use the restroom and did not return. Id. at 70:21–25, 71:2.

At the end of the period, Kirby was summoned to meet with Amanda's father, Mr. Ramirez (“Ramirez”), who had decided to come to the school after learning about the Icebreaker. Id. at 80:11–18, ECF No. 24–4. The School's principal, Mr. Campanero (“Campanero”), and his assistant, Ms. Brown (“Brown”), were also present at the meeting. Id. Ramirez stated that Kirby should be fired and threatened to contact the news media. Id. at 87:5–8. In fact, he did go to the media and the story ran on local and national television over the next two days. Watkins Affirmation, Ex. 2, Andrew Kirtzman, Yonkers Teacher Under Fire For Anatomy Assignment: Health Teacher Asked 7th Graders to Draw Genitalia, CBS Broadcasting, Jan. 27, 2007, ECF No. 24–1; Affirmation Supp. Mot. Summ. J., Ex. V, Hannan Adely, Yonkers Teacher Who Had Students Draw Penis Back In Class, The Journal News, Mar. 22, 2007, at A4, ECF No. 15. On or about January 26, 2007, Pierorazio issued a statement to the media in which he stated that Kirby's actions were “unprofessional” and “unacceptable” and that “[t]o just ask individuals to come and draw freestyle male anatomy is insensitive to the children.” Affirmation Supp. Mot. Summ. J., Ex. V., Andrew Kirtzman, Yonkers Teacher Under Fire For Anatomy Assignment: Health Teacher Asked 7th Graders to Draw Genitalia, ECF No. 15; Watkins Affirmation, Ex. 12, Pierorazio Dep. 10:17–20.

Kirby claims that Pierorazio did very little to confirm whether Kirby had acted in an unprofessional and unacceptable way. Kirby Rule 56.1 Reply ¶ 3, ECF No. 22. Kirby states that: (1) “[Pierorazio] did not speak with him to ascertain the origins or contents of the Icebreaker,” Id. ¶ 36; Pierorazio Dep. at 17:7–11; (2) “[he also] ignored Ms. DiDomenico's input that the exercise was consistent with the textbook the students were using and the New York state health education curriculum,” Kirby Rule 56.1 Reply ¶ 38; Pierorazio Dep. at 15:6–7; (3) and he ignored the fact that DiDomenico had been doing the same exercise for more than 10 years and continued to do so in her health classes after Kirby's class without incident. Kirby Rule 56.1 Reply ¶¶ 36–37; Pierorazio Dep. at 15:14–18.

On January 25, 2007, one day after the parental complaint, Pierorazio informed Kirby that he was recommending his termination. Affirmation Supp. Mot. Summ. J., Ex. F, January 25, 2007 Letter, ECF No. 15. Through his union, Kirby requested a hearing before his termination. Watkins Affirmation, Ex. 5, Letter of January 29, 2007, ECF No. 24–2. On March 20, 2007, the District notified the Yonkers Federation of Teachers that Kirby would not be terminated: ³

Upon careful review of the testimony regarding the termination hearing of Health Teacher, Jeffrey Kirby, it is my determination that Mr. Kirby's employment with the School District will not be terminated. Affirmation Supp. Mot. Summ. J., Ex. L, March 20, 2007 Letter, ECF No. 15.

On April 2, 2007, Kirby filed a Notice of Claim alleging:

In or about January 25, 2007, Bernard P. Pierorazio, Superintendent of Schools, Yonkers Public Schools, negligently, and with malice, stated falsely to news reporters ... that Claimant's behavior, as a teacher within said district, was unprofessional, insensitive and unacceptable.

Watkins Affirmation, Ex. 8, Sussman Letter Attached to Notice of Claim, ECF No. 24–2.

A. Physical Confrontation with a Student

During one of Kirby's classes on June 5, 2007, a student was throwing paper balls at other students. Kirby Dep. 167:9–10, 168:20–22. Kirby attempted to stop the student, but the student refused and said “Fuck off”. Watkins Affirmation, Ex. 6, June 5th Memorandum, ECF No. 24–2. A few minutes later, when Kirby was trying to put a movie in the VCR, the same student moved a chair and sat right in front of the television. Id. Kirby asked the student to return to his seat. Id. The student replied that he wanted “to sit in this fucking chair” and said, “I'll punch you in the face, mother fucker.” Id.; Kirby Dep. 175:9–14. Kirby claims that he called security to ask for assistance. June 5th Mem. In response, the student moved toward Kirby and bumped him in his chest. Id. Kirby advised the student to back off and not touch him again, but the student came toward him and bumped him again, pushing him to the corner of the classroom. Id. To separate himself from the student, Kirby pushed the student's shoulders. Id. Eventually, several security guards responded to the scene. Kirby Rule 56.1 Reply ¶ 66. After this incident, the District conducted an investigation led by Pasquale Picarella (“Picarella”), who conducted it at Pierorazio's direction. Id. ¶ 75; Pierorazio Dep. at 6:5–15. According to Picarella's report, eight students stated that Kirby pushed and punched the student in question in the stomach. Kirby Rule 56.1 Reply ¶¶ 71, 76. Kirby disputes Picarella's report, which according to him lacks supporting documentation. Id. ¶ 79.

On June 18, 2007, Superintendent Pierorazio notified Kirby that he would be recommending Kirby's termination as a result of this incident:

This is to notify you, pursuant to State Education Law Section 3031, that I will be recommending to the Yonkers Public Schools Board of Trustees that your services as a Health teacher with the Yonkers Public Schools be discontinued effective thirty (30) days after the July 2007 Board Meeting.

The Board of Education will act on this recommendation at its July 2007 Board Meeting.

Affirmation Supp. Mot. Summ. J., Ex. S, June 18, 2007 Letter, ECF No. 15. In response to a request from Kirby's union representative, Ms. Puleo (“Puleo”), Pierorazio stated that the reasons supporting his recommendation were (1) unprofessional conduct, and (2) inappropriate physical contact with a student. Affirmation Supp. Mot. Summ. J., Ex. T, June 29, 2007 Letter, ECF No. 15. Before sending this letter, however, Pierorazio had already sent a June 15, 2007 e-mail to the District's director of human resources in which he wrote: “[y]ou were told to terminate Kirby for his actions.... You can't hesitate on these issues, once the investigation is complete act.” Watkins Affirmation, Ex. 9, June 15, 2007 E-mail, ECF No. 24–2.

By letter dated July 11, 2007, Pierorazio advised Kirby:

[A]fter careful consideration of all the relevant facts and after having heard your statements and those of your representative at the informal hearing which was held in this matter, my recommendation to the Board of Education to terminate your services as a probationary teacher remain[s] in effect.

Affirmation Supp. Mot. Summ. J., Ex. U, July 11, 2007 Letter, ECF No. 15. Kirby's employment as a probationary teacher was terminated effective August 18, 2007.

III. ANALYSISA. Legal Standard

Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the initial burden to show that...