Ramirez v. Hempstead Union Free Sch. Dist. Bd. of Educ.

33 F.Supp.3d 158

Carlos RAMIREZ, Plaintiff

v.HEMPSTEAD UNION FREE SCHOOL DISTRICT BOARD OF EDUCATION, Hempstead Board of Education, Hempstead School District, Susan Johnson, individually and in her official capacity, Betty J. Cross, individually and in her official capacity, JoAnn Simmons, individually and in her official capacity, Lamont Johnson, individually and in his official capacity, John and Jane Does 1–50, and Unknown Municipalities and Departments 1–10, Defendants.

No. 13–cv–6429 ADSWDW.

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

Signed July 16, 2014.

The Aboushi Law Firm, PLLC, by: Aymen A. Aboushi, Esq., of Counsel, New York, NY, for the Plaintiff.

The Scher Law Firm, LLP, by: Austin Graff, Esq., of Counsel, Carle Place, NY, for the Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On November 20, 2013, the Plaintiff Carlos Ramirez (the “Plaintiff”) commenced this action against the Defendants, the Hempstead Union Free School District Board Of Education (“BOE”), Hempstead Board Of Education, Hempstead School District, Susan Johnson, Betty Cross, JoAnn Simmons, and Lamont Johnson, former and current District employees (collectively the “Defendants”), pursuant to Title VII of the Civil Rights Act of 1964, as codified in 42 U.S.C. §§ 2000e to 2000e–17 (“Title VII”); 28 U.S.C 1981 (“Section 1981 ”); New York Executive Law § 296 ; New York Civil Service Law § 75 ; and the Plaintiff's right to freedom of speech under the First Amendment.

The Plaintiff asserts four causes of action. In this regard, he alleges that the Defendants (1) treated the Plaintiff adversely because of his national origin, skin tone, and/or race; (2) aided and abetted each other in discrimination against Hispanic Employees; (3) retaliated against him for opposing allegedly fraudulent conduct within the District; and (4) violated his free speech rights under the First Amendment to the United States Constitution by retaliating against him for raising matters of public concern within the community.

Presently before this Court is the Defendants' motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6) on the ground(s ) that the Plaintiff has failed to state a claim upon which relief can be granted. For the reasons set forth below, the Court denies the Defendants' motion.

I. BACKGROUND

Unless stated otherwise, the facts relevant to this motion are set forth below and are taken from the amended complaint. For the purpose of deciding this Rule 12(b)(6) motion, the facts are construed in a light most favorable to the Plaintiff.

A. Factual Background

The Plaintiff is of Hispanic origin and an employee of the Defendant, the BOE. The District hired the Plaintiff in October 2010 as the Director of Technology and Chief Information Officer for the BOE. His sole job function was to maintain and upgrade the BOE's technological capabilities.

The Plaintiff asserts that during his employment, he was instrumental in revitalizing and upgrading the BOE's technological infrastructure and capabilities, providing previously unavailable technological services to each classroom. He also asserts that he thrived under the tenure of the previous superintendent. However, when the Defendant Johnson took office as the new superintendent, Johnson apparently informed the Plaintiff of her desire to replace him because of his race. The Plaintiff further alleges that other employees of Hispanic origin were disciplined or removed from their positions by Johnson, absent any legitimate basis.

B. The Plaintiff's Allegations of Misconduct

Johnson's employment contract contained a provision whereby she would receive a bonus should she increase the student passing rate within the School District. In addition, an increase in the student passing rate would also secure greater funding for the District. The Plaintiff alleges that, on one particular occasion, he thwarted an attempt by Defendant Johnson to change failing grades to passing grades when he refused to make such changes without the necessary documentation.

Thereafter, Defendant Johnson and non-party Julius Brown, Deputy Superintendent of Schools, requested that the Plaintiff provide consultants working under Johnson with electronic access to the District's student grades. The Plaintiff asserts that he refused to provide the consultants with access to the District's grade database because, to his knowledge, the consultants lacked proper authorization. However, as a result, he allegedly received threats and admonishments from Brown and Defendant Cross, President of the School Board, who were acting on behalf of Johnson. The Plaintiff asserts that he later relented and provided the consultants with access to the District's grade database. When the Plaintiff reviewed the activity logs for the District's grade database, he learned that the consultant had changed some student grades. The Plaintiff alerted the Defendants and Brown of the changes.

Thereafter, according to the Plaintiff, Johnson and Brown contacted him and insisted that he develop a computer program and algorithm that would automatically elevate failing grades to passing grades. When the Plaintiff refused, Johnson and Brown allegedly threatened him with insubordination and the denial of tenure. The Plaintiff contends that he was thereby harassed into creating the program. As the Director of Technology, the Plaintiff maintains that grade changes are not within the scope of his responsibilities.

The Plaintiff notes that the BOE's rules and regulations mandate that a passing grade shall be 65 or above, and that a passing grade shall be earned by each student. Information pertaining to grade changes is required to be memorialized by protocol on a grade change form and sent to the records office for execution. The District and State rules and regulations require that only teachers and principals may change grades after the completion of the paperwork. Grade alterations are justified by providing legitimate reasons, such as miscalculations of a grade or the completion of extra credit performed by the student.

C. The Whistleblowing Allegations

Thereafter, the Plaintiff sent a letter to the Commissioner of the New York State Department of Education and the Superintendent of Nassau County BOCES notifying them of the Defendants' actions. He also notified the BOE by providing them with a copy of the correspondence, which had already been sent to the authorities. The following day, Johnson sent the Plaintiff home from his workplace. His access to the School District's system was restricted, thereby preventing him from performing his job duties. Johnson had a letter delivered to the Plaintiff, which instructed him that he was no longer permitted on school property without Johnson's express permission, lest he be considered to be trespassing. In addition, the Plaintiff was required to return his school keys and any other school property in his possession.

D. The Termination of The Plaintiffs' Employment

The Plaintiff alleges that the Defendants issued a warning to him for not producing a report on time. The Plaintiff maintains that this report could not be completed due to the Defendants failure to provide him with the necessary information. The Plaintiff alleges that the BOE used this and other fabricated employment issues to obtain a 3–1 vote of the Board to terminate him.

Soon thereafter, the Plaintiff served a Notice of Claim upon all the Defendants. He contends that this action and all the claims set forth in the complaint are not subject to any grievance procedure or protocol, or to any collective bargaining agreement.

E. Procedural History

The Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). He received a statutory right-to-sue letter dated October 22, 2013 from the EEOC. Thereafter, on November 20, 2013, the Plaintiff commenced this action. On December 20, 2013, pursuant to Rule 12(b)(6), the Defendants filed a motion to dismiss the complaint in its entirety for failure to state a claim.

On January 6, 2014, the Plaintiff filed an amended complaint against the Defendants, asserting that the Defendants violated: (1) Title VII; (2) 28 U.S.C § 1981; (3) New York Executive Law § 296 ; (4) New York Civil Service Law § 75 ; and (5) the Plaintiff's right to freedom of speech under the First Amendment. On January 8, 2014, the Defendant withdrew their initial motion to dismiss. On January 24, 2014, the Defendants filed a second motion to dismiss pursuant to Rule 12(b)(6) against the amended complaint, which is the motion at issue.

II. DISCUSSION

A. The Legal Standard on a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

It is well-established that a complaint should be dismissed under Fed.R.Civ.P. 12(b)(6) only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009) ).

In deciding a motion to dismiss, the Court is required to accept the material facts alleged in the complaint as true and draw all reasonable inferences in the Plaintiff's favor. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ; Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990) ; In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir.2007). As such, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and ... determine whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. However, “although ‘a court must accept as true all of the allegations contained in a...