Volpe v. N.Y.C. Dep't of Educ., 15-cv-7110 (KBF)

195 F.Supp.3d 582

Cheryl VOLPE, Plaintiff,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, and Olivia Francis-Webber, in her official capacity as Principal of PS 114x and in her individual capacity, Defendants.

15-cv-7110 (KBF)

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

Signed July 14, 2016

Jimmy Miguel Santos, Law Offices of Jimmy M. Santos, PLLC, Cornwall, NY, for Plaintiff.

Michael Friel Fleming, New York City Law Department, New York, NY, for Defendants.

OPINION & ORDER

KATHERINE B. FORREST, District Judge:

Plaintiff Cheryl Volpe, a special education teacher in the New York public school system, brings the instant action against her employer, New York City Department of Education, and her supervisor, Principal Olivia Francis-Webber. Volpe alleges that defendants subjected her to impermissible retaliation and violated her rights to equal protection of the law and to be free of unlawful searches and seizures. Now before the Court is defendants' motion to dismiss this case. For the reasons stated below, the motion is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND¹

Volpe has been a special education teacher within the Department for more than 30 years. (FAC ¶ 2.) She has taught at a Bronx primary school, Luis Llorens Torres Children's Academy, also known as PS 114X, since 2005. (Id.¶ 6.) From 2005 to June 2011, Volpe was a Special Education Teacher Support Services ("SETTS") teacher. (Id.¶ 18.) As a SETTS teacher, she performed a variety of academic and administrative tasks in support of special education students at PS 114X. (Id.¶ 19.) During the entirety of Volpe's employment at PS 114X, Francis-Webber was and continues to be the principal. (Id.¶ 7.)

The crux of Volpe's complaint is that she has been impermissibly mistreated because she has advocated for the special education students at PS 114X. (See id.¶ 15.) She alleges that while she and other teachers who actively opposed disability discrimination were treated maliciously, teachers who did not advocate on behalf of special education students were not. (Id.¶ 49.) Her complaint lists a number of instances in which she alleges she attempted to advance these students' interest and a number of acts on the part of Francis-Webber and the Department that she alleges were retaliatory and otherwise unlawful.

The first category of advocacy Volpe alleges is imprecisely defined. The complaint alleges that "[t]hroughout her tenure at PS 114X, and specifically from 2008 until the end of the 2014-2015 academic year and on a continuous and ongoing basis," she took a number of steps. (Id.¶ 15.) Although she states that the list is not exhaustive, the allegations enumerate "report[s] and/or complain[ts] to defendants and/or outside agencies overseeing defendants, via special education complaints (or "SE Complaints") or otherwise." (Id.) The complaint includes six topics these reports concerned: (1) failure to provide certain special education students with services to which they were entitled; (2) Volpe's exclusion from IEP² meetings she was legally required to attend; (3) failure to perform required evaluations of special education students; (4) attendance by the wrong teachers at IEP meetings; (5) changes to an IEP after the meeting at which it should have been established and alteration of the written goals for that student which Volpe had previously written; and (6) failure to provide special education teachers for Integrated Co-Teaching classrooms. (Id.) Except as specifically noted below, the complaint does not allege when, to whom, or how Volpe made these reports and complaints.

The complaint does contain more specific allegations on other points. At the start of the 2008-09 school year, Francis-Webber removed Volpe from the SETTS Resource Room position she had held since 2005. (Id.¶ 20.) Volpe alleges that this was "retaliation for Ms. Volpe's suggestion that PS 114X request support from defendants for Bilingual SE students who had been identified as the lowest performing student population at PS 114X." (Id.) Volpe successfully grieved the removal and was reinstated. (Id.¶ 21.) In October 2008 Francis-Webber eliminated Volpe's position and hired six special education teachers to provide SETTS services after school, but this too was reversed when the Department directed Francis-Webber to reinstate Volpe to her position. (Id.¶ 23.)

Approximately three and a half years later, in March 2011, Francis-Webber "and the school administration at PS 114X" accused Volpe of taking files from the Assistant Principal's office. (Id.¶ 24.) Volpe had been working in that office updating individual special education students' education plans. (Id.) At roughly the same time, Francis-Webber informed Volpe that she planned to direct her to submit to a psychological evaluation. (Id.¶ 25.) The next month, another Department employee told Volpe that Francis-Webber intended to make her work conditions intolerable in order to force her to leave the school. (Id.¶ 26.)

In April or May 2011, Volpe met with reviewers from the Department's Joint Intervention Team ("JIT"), a team charged with overseeing and reviewing the provision of special education services. (Id.¶ 27.) Volpe and another PS 114X employee shared specific concerns about the provision of those services at PS 114X. (Id.) Two months later, in June 2011, Francis-Webber singled out Volpe and the other employee during an employee-wide meeting by accusing them of being "against the school" and suggesting that they "should go elsewhere." (Id.¶ 28.)

In September 2011, the start of the next school year, Francis-Webber removed Volpe from her SETTS position for a third time. (Id.¶ 29.) Volpe grieved this removal, which resulted in a grievance hearing in March 2012. (Id.¶ 30.) According to a February 2013 Office of Special Investigations report which Volpe attached to her amended complaint, during the grievance hearing Volpe submitted a job posting for a monolingual³ SETTS position in support of her argument that she should have been retained. (Id. Exh. A.) Francis-Webber accused Volpe of having forged the document, and Volpe lost the grievance.⁴ (Id.¶ 30.) The complaint alleges that this accusation, which is discussed further below, was false. (Id.)

In May 2012, Volpe filed another grievance, this time over Francis-Webber's direction that Volpe and other special education teachers perform breakfast duty, as a result of which some special education students were improperly in classrooms without special education teachers. (Id.¶ 31.) After this complaint, Francis-Webber discontinued the practice. (Id.)

In December 2012, Volpe filed a written complaint with the Department's Chancellor. (Id.¶ 32.) This written complaint detailed the ways Francis-Webber had harassed Volpe and subjected her to a hostile work environment. (Id.) According to the operative complaint in this action, the Department's investigation consisted of interviews with Volpe and Francis-Webber and did not result in disciplinary action. (Id.)

In February 2013, the investigation into the accusation that Volpe had forged and submitted a document during the March 2012 grievance hearing discussed above was completed. (Id. Exh. A.) The resulting Closing Memorandum determined that the allegations against Volpe had been substantiated. (Id.) On March 22, 2013, Francis-Webber held a conference with Volpe, her immediate supervisor, and a union representative to discuss the misconduct allegation. (Id.) The union representative contested whether the investigation had been properly performed and stated that she had received the job posting at issue from the school's secretary and forwarded it to Volpe. (Id.& ¶ 34.) The same day, Francis-Webber wrote a letter informing Volpe that she had concluded that Volpe submitted a forged document to the arbitrator during the March 2012 grievance hearing, and that "disciplinary action, including an unsatisfactory rating and disciplinary charges that could lead to the termination of your employment," might result. (Id. Exh. A.)

In April 2013, Francis-Webber initiated charges against Volpe under New York Education Law § 3020–a, which sets out the disciplinary procedures and penalties for public school teachers in the state. (Id.¶ 36.) The charges, which are attached to Volpe's amended complaint, allege that Volpe knowingly submitted a forged document with intent to defraud the Department. (Id. Exh. B.) On April 8, 2013, the secretary at PS 114X sent Volpe's personnel file to an attorney with the Department's Administrative Trials Unit. (Id. Exh. C.) The personnel file included Francis-Webber's March 22, 2013 letter referencing the union representative's statement that she had received the posting and forwarded it to Volpe. (Id.¶ 37.)

In early August 2013, an individual from the Administrative Trials Unit requested that the Office of Special Investigations interview a new witness in connection with the § 3020–a proceeding: Volpe's union representative. (Id. Exh. C.) The subsequent amended report, issued August 13, recounts the representative's testimony that she received the allegedly forged document from the school secretary and forwarded it to Volpe, which was supported by the fact that the representative still had a packet of job postings which contained the allegedly fraudulent document. (Id.) After the secretary confirmed that she provides the union representative with postings, the Office of Special Investigations recommended changing its conclusion regarding Volpe's alleged misconduct from substantiated to unsubstantiated. (Id.)

On August 15, 2013, the Department withdrew all charges against Volpe brought pursuant to Education Law § 3020–a. (Id.)

During the ensuing 2013-14 academic year, Volpe filed a number of complaints and reports which faulted PS 114X's administration for not evaluating special education students at parents' requests and for not providing support to special education students with dangerous tendencies. (Id.¶ 40.) When the reports about...