Ross v. N.Y.C. Dep't of Educ.

935 F.Supp.2d 508

Brian ROSS, Plaintiff,

v.The NEW YORK CITY DEPARTMENT OF EDUCATION, Beth Lubeck–Ceffalia, Stephanie Korotz, and Danielle Santoro, individually and in their official capacities, Defendants.

No. 10–CV–4937 (NGG)(JO).

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

March 22, 2013.

Brandon Scott Sipherd, Bryan L. Arbeit, Gregory Nicholas Filosa, Isaac E. Samuels, Jeffrey Kevin Brown, Rick Ostrove, Leeds Brown Law, P.C., Carle Place, NY, for Plaintiff.

Keri Reid McNally, Christopher Aaron Seacord, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

Before the court is Defendants' motion for summary judgment arguing that Plaintiff, a public school physical education teacher, is not entitled to First Amendment protection for his speech concerning the condition of a gymnasium. Also before the court is a portion of Plaintiff's motion to amend his Complaint seeking to add three forms of allegedly protected speech and numerous alleged acts of retaliation. For the reasons set forth below, Defendants' motion for summary judgment is GRANTED and Plaintiff's motion to amend is DENIED.

I. BACKGROUNDA. Factual Background¹

In September 2005, Plaintiff Brian Ross was hired as an elementary physical education teacher and assigned to New York City Public School 132 (“P.S. 132”), located in the Williamsburg neighborhood of Brooklyn, New York. (Def. 56.1 St. (Dkt. 36) ¶¶ 1–2; Pl. 56.1 St. (Dkt. 39) ¶¶ 1–2.)

P.S. 132 does not have a formal gymnasium. (Def. 56.1 St. ¶ 5; Pl. 56.1 St. ¶ 5.) The school uses a multipurpose room as a gym for physical education classes and as an auditorium. (Def. 56.1 St. ¶ 5; Pl. 56.1 St. ¶ 5.) Physical education classes are also occasionally taught in the school yard and in individual classrooms. (Def. 56.1 St. ¶ 5; Pl. 56.1 St. ¶ 5.)

In April 2010, P.S. 132 Principal Beth Lubeck ² decided that to make room for mandatory state testing and to accommodate students with special needs, physical education classes had to be taught in a building known as the Settlement House. (Def. 56.1 St. ¶ 23; Pl. 56.1 St. ¶ 23; see Lubeck Dep. (Ex. C to Seacord Decl. (Dkt. 37–3)) at 20:5–21:13.) The Settlement House is a Community Based Organization located approximately two blocks from P.S. 132. (Def. 56.1 St. ¶¶ 24–25; Pl. 56.1 St. ¶¶ 24–25.) It had formerly been the physical education facility for Middle School 577 and had hosted some after-school programs for P.S. 132 students. (Def. 56.1 St. ¶ 26; Pl. 56.1 St. ¶ 26.)

For three days in April and May 2010, Plaintiff taught at the Settlement House for approximately two hours each day. (Def. 56.1 St. ¶ 27; Pl. 56.1 St. ¶ 27.) On the first day, Plaintiff arrived at the Settlement House before his students, walked into the gym, and “was absolutely devastated with what [he] saw.” (Ross Dep. (Ex. B to Seacord Decl. (Dkt. 37–2)) at 53:8–17.) The gym was “extremely deteriorated and delipidated [sic].” ( Id. at 53:18–55:24.) The bricks and windowsills were covered in “years['] and years['] worth of dust.” ( Id.) Pipes on the ceiling were exposed and leaking. ( Id.) Walls were covered with what Plaintiff believed to be asbestos. ( Id.) Lead-based paint was peeling off the walls. ( Id.) The floor was covered in “some sort of a rubber sub flooring.” ( Id.) Nails and staples were exposed from a stage such that “any student c[ould] brush by and cut themsel[f].” ( Id.) To get to the only bathroom, “the students had to walk through exposed leaking pipes where there were these massive holes” from which Plaintiff saw a rat emerge. ( Id.) There was also an unlocked door in the gym that led into an open alleyway in the street such that on his first day, when Plaintiff was teaching either kindergarten or second grade students, “what appeared to be a prostitute came in off the street and asked [him] if [he] could direct her to which room the STD testing [was] in, [at which point Plaintiff] told her she had to leave.” ³ ( Id.) The Settlement House was “a terrible place to be,” and “[v]ery unsafe and unhealthy [to anyone,] let alone elementary school students.” ( Id.)

After observing this scene, Plaintiff approached Danielle Santoro, an Assistant Principal at P.S. 132, and informed her of these “serious, serious health and safety issues.” ⁴ ( Id. at 55:25–56:17; see Def. 56.1 St. ¶ 10; Pl. 56.1 St. ¶ 10.) Santoro told Plaintiff to “keep [his] mouth shut” because the building was to be renovated in the near future. (Ross Dep. at 55:25–56:17.) Plaintiff responded, “[I]f it's a state of the art facility [next year], that's great, but right now you're putting the safety and health of all of these children in danger.” ( Id.) According to Plaintiff, he was worried “for the students currently being taught there” (Pl. 56.1 St. ¶ 29), and raised these issues out of concern for the health and safety of “any students of any age, but certainly elementary [school students]” (Ross Dep. at 63:25–64:3).

Later that day at P.S. 132, Plaintiff told his union chapter leader, Christine Caraballo, about his concerns on his lunch break. ( Id. at 57:1–21.) Santoro later told Plaintiff to meet with Principal Lubeck first thing the next morning. (Pl. 56.1 St. ¶ 30.) Plaintiff requested that Caraballo be present for this meeting, but before she arrived, Lubeck told Plaintiff that although she had always given him satisfactory evaluations, “none of that [wa]s going to happen[ ] anymore.” ( Id.) Lubeck told Plaintiff that he did not need to teach at P.S. 132 because there were “five people lined up knocking at the door that want[ed] to teach physical education in a mint school like [P.S. 132].” ( Id.) At the meeting, Plaintiff informed Lubeck of his worries about the Settlement House, including the “lack of an on-site school nurse, first aid kit, fire evacuation plan, or security” out of “concern[ ] that the safety and health of the students were at risk.” ( Id. ¶ 31.) Lubeck then threatened to fire Plaintiff unless he agreed to continue teaching at the Settlement House. ( See id. ¶¶ 32–33.) Faced with termination, Plaintiff agreed to continue to teach and stop voicing any concerns to the administration about the condition of the Settlement House. ( See id. ¶ 36.)

In late April or early May 2010, Plaintiff taught at the Settlement House for a second day. ( See Def. 56.1 St. ¶ 27; Pl. 56.1 St. ¶ 27.) On that day, Lubeck and Santoro accompanied Plaintiff to the Settlement House, where Plaintiff pointed out each of his safety concerns. ( See Pl. 56.1 St. ¶ 34.) Lubeck stated that she would instruct the custodial staff to clean the dust, but this never occurred. ( See id.)

On or about April 27, 2010—either before or after this visit to the Settlement House with Lubeck and Santoro—Plaintiff filed a complaint about the condition of the Settlement House with the Occupational Safety and Health Administration (“OSHA”). ( Id. ¶ 36; see Ross Dep. at 64:4–65:5.) He told the OSHA representative that he was a New York City public school teacher at P.S. 132 who had been directed by his administration to teach in a building not maintained by the Department of Education (“DOE”), and detailed the hazards described above. (Ross Dep. at 66:4–18.) Plaintiff gave OSHA his name, but his complaint was deemed anonymous.⁵ ( Id. at 66:19–22.)

Plaintiff made the OSHA complaint because he “felt there was no other way to protect [his] students.” ( Id. at 65:3–9.) Plaintiff believed that “as an educator, [his] job first and foremost [was] to ensure the health and safety of [his] students.” ( Id. at 65:10–15.) He believed that he could not in good conscience “teach[ ] children in a facility that[ was] going to make them ill or get them injured.” ( Id.)

In response to the complaint, OSHA shut down and inspected the Settlement House, but because the building was undergoing renovations, Plaintiff's complaint—although not declared unfounded—was deemed moot. (Pl. 56.1 St. ¶ 39.)

Plaintiff claims that after this, the P.S. 132 administration retaliated against him for his complaints by issuing meritless disciplinary letters, improperly grading his performance for two school years as “unsatisfactory” (thereby freezing his salary), forcing Plaintiff to proctor exams, and manufacturing parent complaints. ( See id. ¶¶ 40–121.) Plaintiff claims that prior to his complaints regarding the Settlement House, Lubeck and the rest of the P.S. 132 administration consistently gave him satisfactory reviews. ( See id. ¶¶ 14–22.)

B. Procedural History

On October 27, 2010, Plaintiff filed this suit seeking compensatory damages, injunctive relief, and punitive damages against Defendants Principal Beth Lubeck, Assistant Principal Danielle Santoro, and Assistant Principal Stephanie Korotz pursuant to 42 U.S.C. § 1983 for their alleged violations of the First and Fourteenth Amendments.⁶ ( See Compl. (Dkt. 1) ¶¶ 87–88.) Plaintiff also asserted a claim against the DOE pursuant to 42 U.S.C. § 1983 and, implicitly, Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). ( See Compl. ¶ 86.) On March 23, 2011, following an initial conference, Magistrate Judge James Orenstein set a May 20, 2011, deadline for any amendment to the pleadings. (Mar. 23, 2011, Scheduling Order (Dkt. 9).)

On November 10, 2011, after completion of discovery, the court granted Defendants leave to file a motion for summary judgment. ( See Nov. 10, 2011, Minute Entry.) On March 9, 2012—over sixteen months after filing suit, over nine months after the amendment deadline, and over a month after Defendants served their motion for summary judgment—Plaintiff sought leave to file a motion to amend the Complaint “to add [allegations concerning] the protected activity of speaking to the press and the filing of his lawsuit” and subsequent retaliatory actions. (Mar. 9, 2012, Pl. Ltr. (Dkt. 32) at 1.) On April 2, 2012, Defendants filed the fully bundled motion for summary judgment. (Dkt. 35.)...