Palmer v. Penfield Cent. Sch. Dist.

918 F.Supp.2d 192

Karen PALMER, Plaintiff,

v.PENFIELD CENTRAL SCHOOL DISTRICT, District Superintendent John Carlevatti, Defendants.

No. 10–CV–6267L.

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

Jan. 22, 2013.

Christina A. Agola, Brighton, NY, for Plaintiff.

Michael P. McClaren, Webster Szanyi, LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff Karen Palmer brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983, alleging that she was retaliated against by defendants, the Penfield (New York) Central School District (“District”) and Penfield superintendent John Carlevatti. Plaintiff alleges that in 2009, she was denied tenure and was compelled to resign from her teaching position within the District, because of her advocacy on behalf of an African–American student whom plaintiff had recommended for admittance to the District's Kindergarten Extending Education Program (“KEEP”).

Defendants have filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. # 9). Plaintiff, who has amended the complaint once as of right (Dkt. # 8), has cross-moved for leave to “amend/correct her [amended] complaint” pursuant to Federal Rule 15 (Dkt. # 12). The proposed second amended complaint would add a claim for retaliation under Title VI, 42 U.S.C. § 2000d et seq.

BACKGROUND

The first amended complaint (“FAC”) (Dkt. # 8) alleges, and it is assumed to be true, that Palmer was hired by the district as a kindergarten teacher in September 2006. During the 2008–09 school year, the District implemented KEEP, which provided an extended day program to the lowest-performing students in literacy development.

In the fall of 2008, some disagreement arose between plaintiff and school officials over plaintiff's recommendation that a particular student, “JK,” be admitted to KEEP. Plaintiff believed that JK would be a good candidate for the program, but he was denied admission, purportedly due to concerns over his “resistant behaviors” and his “strong knowledge of alphabetic principal [sic] (knowledge of letter names and associated sounds).” FAC ¶¶ 19, 22.

Plaintiff first recommended JK for KEEP in October 2008, FAC ¶ 18, and apparently this continued to be a source of friction between her and school officials throughout that academic year. At a meeting on April 1, 2009, plaintiff allegedly voiced her concerns over the perceived “disparate treatment of an African American student [JK] in a predominantly Caucasian school district.” FAC ¶ 46. The very next day, plaintiff was informed by school principal Terri Connell that plaintiff, who was in the third year of her “probationary” period, would not be recommended for tenure. FAC ¶¶ 15, 43. Connell allegedly told plaintiff that her decision was based on Connell's belief that plaintiff was “not providing developmentally appropriate activities for [her] students.” FAC ¶ 45.

In a letter to superintendent Carlevatti, plaintiff expressed her belief that the timing of Connell's announcement of her decision concerning plaintiff's tenure, coming just one day after plaintiff had spoken up about the alleged disparate treatment of an African–American student, was suspect, and that it appeared that she was being retaliated against for her remarks at the April 1 meeting. FAC ¶ 46. Carlevatti apparently upheld Connell's decision, however, and plaintiff “was compelled to resign effective June 30, 2009 ....” FAC ¶ 47.

The amended complaint alleges that plaintiff's forced resignation was “in retaliation for objecting to the disparate treatment of an African American student in a predominantly Caucasian school district,” and that the District, “by and through the deliberate indifference of its final policy maker, John Carlevatti, both created and maintained” a policy or practice of unconstitutional retaliation. FAC ¶¶ 47, 48 (italics in original). Plaintiff also alleges that the District failed to properly train and supervise its employees with respect to such retaliation. FAC ¶ 49.

Based on those allegations, plaintiff asserts two claims. The first, which is asserted only against the District, alleges unlawful retaliation based on plaintiff's opposition to unlawful discrimination, in violation of Title VII. The second alleges that plaintiff was retaliated against for having spoken out about an issue of public concern, in violation of the First Amendment to the United States Constitution.¹

The proposed second amended complaint is identical to the first, but adds a third cause of action under Title VI. This proposed claim, which is also directed against the District only, is essentially identical to the Title VII claim, but adds the allegation that the District was receiving federal financial assistance at the time of the acts complained of. Dkt. # 12–2 at 13, ¶ 61.

In their motion to dismiss, defendants contend that plaintiff's Title VII claim fails because she does not allege that she engaged in any activity protected by Title VII. Defendants argue that plaintiff's complaints concerning JK did not relate to an unlawful “employment practice,” which is a prerequisite for a retaliation claim under Title VII.

Defendants next assert that plaintiff's First Amendment claim fails because plaintiff's complaints about JK not being admitted to KEEP did not constitute speech about a matter of “public concern,” but rather were uttered pursuant to plaintiff's professional duties as a teacher. Defendantsalso contend that the claims against Carlevatti should be dismissed because he is entitled to qualified immunity. As to plaintiff's proposed new claim under Title VI, defendants simply argue that the Court should not address the motion to amend until after it has decided defendants' motion to dismiss the Title VII and First Amendment claims.

DISCUSSION

I. Title VII Claim

“Title VII's antiretaliation provision prohibits an employer from discriminating against an employee for opposing any practice made unlawful by Title VII.” Rivera v. Rochester Genesee Regional Transp. Auth., 702 F.3d 685, 698 (2d Cir.2012) (citing Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59–60, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). To establish a prima facie case of unlawful retaliation under Title VII, “an employee must show that (1) she was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir.2012).

“Protected activity” includes opposition to a discriminatory employment practice or participation in any investigation, proceeding, or hearing under Title VII. See42 U.S.C. § 2000e–3(a). Courts have repeatedly held, however, that a teacher's complaints about alleged discrimination directed against a student do not constitute opposition to an unlawful employment practice. See, e.g., Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d 1178, 1183 (8th Cir.1998) (teacher's complaints that school principal had treated black student less favorably than white student were not protected by Title VII); Trevino v. Austin Peay State Univ., No. 11–cv–1139, 2012 WL 951488, at *5 (M.D.Tenn. Mar. 19, 2012) (teacher's complaints about perceived discrimination in school's financial aid practices related to school's students, not to the terms or conditions of employment of plaintiff or any other school employees, and therefore those complaints did not support a Title VII retaliation claim); Comans v. Scott County School Dist., 306CV505, 2010 WL 1780205, at *6 (S.D.Miss. Apr. 30, 2010) (“Comans cannot base a Title VII retaliation claim on that purported complaint because the underlying conduct—discrimination against a student—is not actionable under Title VII”); Kassera v. Independent School Dist. No. 11, No. 07–CV–2292, 2008 WL 4613747, at *4 (D.Minn. Oct. 15, 2008) (“Even if Kassera could establish that she opposed discrimination against minority students, she would be unable to recover under Title VII because such discrimination by a school is not ‘an unlawful employment practice’ ”); Holt v. Lewis, 955 F.Supp. 1385, 1387–88 (N.D.Ala.1995) (complaint about university's discrimination against a student did not involve an employment practice and thus any retaliation plaintiff suffered for advocating that student's rights was not prohibited by Title VII), aff'd,109 F.3d 771 (11th Cir.1997).

In the case at bar, plaintiff alleges only that she complained about what she perceived to be disparate treatment of an African–American student. She does not allege that she complained about unlawful discrimination directed against her, or any other District employee. This claim therefore fails.

II. First Amendment Claim

In order to establish a First Amendment retaliation claim, plaintiff must prove that: (1) she engaged in constitutionally protected speech because she spoke as a citizen on a matter of public concern; (2) she suffered an adverse employment action; and (3) her speech was a “motivating factor” in the adverse employment decision. Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir.2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir.2008) (per curiam).

The Supreme Court has sought “to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ. of Township High School Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), however, the Court “narrowed [its]...