UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Gershon, Judge
Gold, Magistrate
CV 01 1105
DAVID ROEMER,
Plaintiff,
- against -
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, PUBLIC EMPLOYMENT RELATIONS BOARD, HERBERT MONTE LEVY, JOYCE COPPIN, and TOM PAPPAS
Defendants.
Introduction
David Roemer, proceeding pro se, brings this action pursuant to 42 U.S. C. §§ 1983, 1985(3) and 1986, contending that defendants violated his constitutional rights to due process and fredom of speech and association. Roemer's claims arise from defendant Board of Education's decision to terminate his employment as a New York City high school physics teacher and his subsequent challenges to his termination. In this action, he seeks reinstatement, back pay, compensation for emotional damages, reimbursement of legal fees, and punitive damages. See Third Amended Compl. ¶¶ 3, 59.
The defendants named by Roemer in his Third Amended Complaint are the Board of Education of the City of New York ("Board of Education"), his former employer; the Public Employment Relations Board ("PERB"), a state executive agency responsible for administering the New York Public Employees' Fair Employment Act; Herbert Monte Levy, a private attorney Roemer contendes he retained to represent him in challenging his termination; Joyce Coppin, the Superintendent of Brooklyn High Schools during plaintiff's employment; and Tom Pappas, Secretary and Chief of Saff of the United Federation of Teachers ("UFT"), plaintiff's union at the time of his termination. See Third Amended Compl. ¶ 2. Each of these defendants has moved to dismiss or for summary judgment, while plaintiff seeks leave to file a Fourth Amended Complaint 1. The Honorable Nina Gershon has referred the parties' motions to me for report and recommendation. For the reasons stated below, I respectfully recommend that defendants' motions be granted, that Roemer's motion for leave to file a Fourth Amended Complaint be denied, and that this action be dismissed in its entirety.
Facts
The following facts are drawn from plaintiff's Third Amended Complaint, referred to below as the complaint ("Compl.")2. I assume the allegations of the complaint to be true for purposes of the pending motions. Because defendants' motions are based in large part upon the prior preceedings surrounding plaintiff's termination, those proceedings are described below in some detail.
Plaintiff was originally hired by defendant Board of Education to teach high school physics in 1984. Roemer voluntarily transferred to Edward R. Murrow High School in September, 1994, where his teaching methods were observed by the Principal and an Assistant Principal and found to be unsatisfactory. Compl. ¶¶ 4-6. In response, Roemer, through his union, invoked a conciliation procedure available under the terms of his collective bargaining agreement. Compl. ¶ 7. On May 29, 1996, Roemer filed a grievance, alleging that his supervisors were not complying with the conciliation procedures set forth in that agreement. Compl. ¶ 8. Plaintiff's grievance was denied by defendant Coppin, acting on behalf of the Board of Education, on Octovber 6, 1995. Compl. ¶ 10. Although plaintiff's union agreed to appeal the denial of his grievance, an appeal was never brought. Compl. ¶ 11.
On November 20, 1996, the Board of Education found probable cause to file charges of incompetence and insubordination against Roemer. Compl. ¶ 16. A hearing officer was appointed, and pre-hearing conferences were held. Compl. ¶19. Roemer, represented by counsel, moved to dismiss the charges pending against him, but hs motion was denied. Compl. ¶¶19-21. Hearings were then held before a three-member arbitration panel pursuant to New York Education Law § 3020-a. Plaintiff was represented by counsel throughout the arbitration proceedings, and contested the charges against him on several grounds. Among other claims, plaintiff asserted that his problems with his supervisors resulted from philosophical differenences rather than insubordination, and that his approach to teaching was superior to the methodology insisted upon by the Board of Education and thus did not reflect his incompetence. See In the Matter of the Arbitration between Board of Education of the City of New York and David Roemer, Findings and Recommendations at 27-323. After seven days of hearings, on May 12, 1998, a three-member panel issued a detailed written decision finding plaintiff "culpapble of the charges preferred against him" and concluding that "[t]he appropriate penalty for Respondent [Roemer]'s culpability is dismissal from service." See id. at 50; Compl. ¶ 26.
On June 24, 1998, plaintiff, represented by counsel, filed a petition with the New York State Supreme Court pursuant to New York CPLR Article 75, seeking to vacate the findings and recommendations of the hearing panel. Compl. ¶ 30. Plaintiff's Article 75 petition challenging the recommendation of termination made by the hearing panel named defendant Board of Education as the respondent 4. In his petition, plaintiff challenged the panel's decision to recommend his termination on two procedural grounds as well as on its merits. First, plaintiff asserted that the panel's decision was rendered approximately three weeks after a deadline imposed by the New York State Education Law. See Petition ¶¶ 10, 17-18. Second, plaintiff contended that the panel's recommendation of dismissal could properly have been implemented only at a public meeting of the Board of Education, but that he was advised of his termination by his superintendent five days before the public hearing was held. See Petition ¶¶ 20-21. Finally, plaintiff challenged ther merits of the panel's decision as arbitrary, asserting that the panel failed to apply the proper standard when it concluded he was incompetent without first finding that no valid educational experience had taken place in his classroom. See Petition ¶¶ 2.c, 6, 12. Plaintiff sought reinstatement to his position as a tenured teacher as well as back pay. See Petition ¶ 2 and p. 7.
Plaintiff alleges that he retained defendant Levy to represent him in connection with his Article 75 proceedings on November 4, 1998, but that defendant Levy withdrew from further representation just two weeks later, on November 18, 1998. Compl. ¶ 32. Plaintiff's Article 75 petition was dismissed on December 10, 1998, by Kings County Supreme Court Justice David B. Vaughan. Compl. ¶ 35. It appears that Justice Vaughan did not issue a written opinion explaining the reasons for his decision. See Docket Entry 54 at 201. Plaintiff appealed Justice Vaughan's decision, but the dismissal of his petition was affirmed by the Appellate Division, Second Department on January 18, 2000. See DeLarco Decl. Ex. D; Compl. ¶ 41.
On April 13, 2000, Roemer filed an improper practice charge before defendant PERB, alleging that the UFT had conspired with the Board of Education to file false and fraudulent disciplinary charges against him. Compl. ¶ 42. PERB dismissed plaintiff's charge on May 1, 2000, and rejected plaintiff's challenge to its decision to dismiss his charge on August 7, 2000. Compl. ¶¶ 44, 47. In its decision, PERB concluded that all but one of plaintiff's claims were untimely, and that plaintiff's sole timely claim was unsupported by any facts indicating that the UFT's conduct was arbitrary or undertaken in bad faith. See DeLarco Decl., Ex. B.
On August 21, 2000, Roemer filed a petition in New York State Supreme Court pursuant to New York CPLR Article 78 seeking to vacate PERB's decision . Compl. ¶ 49. Plaintiff filed his Article 78 pro se, naming PERB, the UFT, and the Board of Education as respondents 5. In his petition, plaintiff contended that the UFT conspired with the Board of Education to lodge false disciplinary charges against him. See Article 78 Petition, ¶¶ 4, 42, 48-52, 116, 122. Plaintiff sought reinstatement, back pay and reimbursement of legal expenses. See Article 78 Petition ¶ 5. Plaintiff's petition was heard by Justice Vaughan, who ordered that it be dismissed on November 9, 2000, apparently without issuing a written decision. See DeLarco Decl. Ex C; Compl. ¶ 51. Although he had the right to do so, plaintiff never appealed from Justice Vaughan's decision. See New York CPLR § 57016.
On May 24, 2000, plaintiff brought a civil action in New York Supreme Court asserting a claim of legal malpractice against defendant Levy. Compl. ¶ 53. Plaintiff claims were dismissed by New York County Supreme Court Justice Marsha L. Steinhardt on August 9, 2000. Compl. ¶ 54.
Discussion
I. Subject Matter Jurisdiction
Defendants first seek dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that the Rooker-Feldman doctrine precludes this Court from exercising subject matter jurisdiction over plaintiff's claims. The Rooker-Feldman doctrine provides that a federal district court lacks jurisdiction to review a final judgment of a state court. See District of Columbia Court of Appeals v. Feldman 460 U.S. 462, 482, 103 S.Ct. 1303, 1315 (1983). The doctrine applies not only to direct appeals from state court rulings, but also to federal claims which are "inextricably intertwined" with the merits of a state court judgment. Id., 460 U.S. at 486, 103 S.Ct. at 1317. Defendants contend that the federal claims plaintiff asserts in this action are "inextricably intertwined" with the arbitration and state court proceedings in which plaintiff has already challenged his termination.
Courts have not yet developed a clear test for determining when a federal claim is "inextricably intertwined" with the merits of a state court judgment. See, e.g., Phifer v City of New York, 289 F.3d 49, 55-56 (2d Cir. 2002). However, the Second Circuit has held that the Rooker-Feldman doctrine "is at least coextensive with the principles of res judicata ("claim preclusion") and collateral estoppel ("issue preclusion"), " and thus bars the exercise of federal jurisdiction not only when "the precise claims raised in a state court proceeding are raised in the subsequent federal proceeding" but also where "subsequent litigation .. would be barred under the principles of preclusion." Moccio v. New York State Office of Court Administration, 95 F.3d 195, 198-200 (2d Cir. 1996). The Circuit has also favorably cited Justice Marshall's formulation, which holds that a fderal claim in inextricably intertwined with a state court judgment if it may succeed "only to the extent that the state court wrongly decided the issues before it." Phifer, 289 F.3d at 56, quoting Pennzoil Co. v. Texaco, Inc., 481 U. S. 1, 25, 107 S.Ct. 1519, 1533 (1987) (Marshall, J., concurring); Hachamovitch v. DeBuono, 159 F.3d 687, 694 (2d Cir.1998)(same). Although the Circuit has acknowledged that ""[a] case might arise that would directly challenge a state court judgment in a way that the Supreme Court clearly envisioned would be barred by Rooker-Fedldman and yet for some reason not be precluded," it has not yet extended the scope of the Rooker-Feldman doctrine beyond the minimum specified in Moccio. See Phifer, 289 F.3d at 56-57 (emphasis added); see also Hachamovitch, 159 F. 3d at 696, n.3; Harris v. New York State Department of Health, 202 F. Supp.2d 143, 158 et seq. (S.D.N.Y 2002)(discussing in extensive detail the principles underlying the Rooker-Feldman doctrine and the relationship of the doctrine to the rules of preclusion).
Collateral estoppel precludes subsequent litigation "if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding."Moccio, 95 F.3d at 200, quoting Colon v. Coughlin, 58 F. 3d 865, 869 (2d Cir. 1995). See also Phifer, 289 F.3d at 56. A decision rendered in an Article 78 proceeding may be given preclusive effect. See Moccio, 95 F.3d at 201-02. Under New York law, res judicata and collateral estoppel apply as well to arbitration awards, even where the award had not be confirmed pursuant to Article 75. See, e.g., Waverly Mews Corp. V. Waverly Stores Associates, 294 A.D. 2d 130, 132, 741 N.Y.S.2d 826, 827 (1st Dep't 2002); Allstate Insurance Co. v. Vega, No. 3873 CVN 1999, 2000 WL 33595799 (New York City Civil Ct., July 16, 2000). It follows as a matter of logic that res judicata and collateral estoppel would also apply to a court order rendered in an Article 75 proceeding. Thus, to determine whether the Rooker-Feldman doctrine, at least as construed in Moccia, bars the exercise of this court's jurisdiction, the claims asserted by plaintiff in this action must be compared with those he litigated in his arbitration proceeding, his Article 75 and Article 78 petitions, and his malpractice action against defendant Levy.
The findings and recommendations of the arbirtration panel plainly demonstrate that the panel members considered plaintiff's challenges to the charges profered against him by the Board of Education, yet found those charges to be supported by ample evidence and sufficiently serious to warrant the termination of plaintiff's employment. Plaintiff's Article 75 peitition sought to vacate the panel's findings and recommendations, asserting that the arbitration panel exceeded its authority, misconstrued controlling law, and rendered an arbitrary decision. See Article 75 Petition, ¶ 2. These contentions were necessarily rejected by Justice Vaughan, who dismissed plaintiff's petition, and by the Appellate Division, which affirmed Justice Vaughan's decision.
Plaintiff's Article 78 Petition sought an order reversing PERB's dismissal of his unfair labor practices charge. Although the underlying proceedings before PERB apparently concerned the failure of the UFT to represent plaintiff properly, plaintiff's Article 78 peititon was in essense yet another attack on the validity of the charges of incompetence and insubordination brought by defendant Board of Education. See, e.g., Article 78 Petition, ¶¶ 83-85. The petition also complained that the UFT refused to provide plaintiff with legal assistance he requested, id., ¶ 110, and that the UFT did so because it had maliciously conspired with the Board of Edcuation to file the false charges he sought to contest in the first place. See id., 110, 116, 122. These arguments were also necessarily rejected by Justice Vaughan, who dismissed plaintiff's petition.
In his Third Amended Complaint, plaintiff invokes the Fourteenth Amendement and 42 U.S.C. §§ 1983, 1985(3). See Compl. ¶ 3. The complaint does not, however, assert any specifically enumerated causes of action or specifically identify any particular claims, nor does it make clear which claims are being asserted against each defendant. Instead, the complaint contains a series of allegations, some of which appear to be factual in nature, and some of which appear to assert cliams that plaintiff's rights have been violated. Mindful of the duty to constro a pro se complaint liberally, see, e.g., Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991), I have attempted to discern the nature of plaintiff's claims by reviewing the allegations of his complaint. Having completed that review, it is clear that the claims plaintiff seeks to assert in this action are essentially the same as those which were decided against him in the arbitration hearing and prior state court proceedings.
Plaintiff's complaint alleges that defendant Board of Education violated his right to due process by transferring him out of the classroom without basis (¶ 13); by doing so in retaliation for plaintiff's attempt to appeal to the Chancellor from defendant Coppin's denieal of a grievance he had filed (¶ 14); by failing to complete the conciliation process before filing disciplinary charges against him (¶ 18); and by filing charges of incompetence and insubordination against him which were false (¶¶ 16-17). Plaintiff also claims that the UFT, which is not named as a defendant in the complaint, consipired with the defendant Board of Education in the filing of false and fraudulent charges against him (¶ 42). Plaintiff asserts that defendant PERB violated his rights by denying him the right to file an amended unfair practices charge (¶ 45) and dismissing his original charge without a hearing (¶48). There do not appear to be any claims in the complaint asserted specifically against defendants Coppin or Pappas. Presumably, plaintiff seeks to hold these defendants liable for their actions of behalf of the Board of Education and the UFT, respectively.
Although they are not named as defendants in this action, plaintiff further alleges that the members of the arbitration panel which found the charges against him to be substantiated and recommended his termination violated his due process rights. Plaintiff's allegations in this regard include a claim that the panel improperly failed to dismiss the charges against him even though they were false (¶ 22), and improperly failed to find in his favor after the hearing was concluded (¶28). In his prayer for relief, plaintiff seeks reinstatement to his position as a tenured teacher, back pay, and reimbursement for legal expenses the same relief he sought in his State Court petitions as well as damages for emotional distress and punitive damages.
The facts of this case are similar to those at issue in Moccio. Plaintiff Moccio was a court officer employed by the New York State Office of Court Administration. Disciplinary charges were lodged against him, and after challenging the charges at an administrative hearing and on appeal to an administrative judge, Moccio was terminated. Moccio sought to vacate the administrative judge's decision by filing an Article 78 petition, but his termination was upheld by the state court. Moccio then commenced a federal action prusuant to Section 1983, claiming that his due process rights were violated by the arbitrary and capricous decision to terminate him, and that his equal protection rights were violated because officers guilty of more serious misconduct were not charged or terminated. See Moccio, 95 F.3d at 197-98.
Although noting that Moccio had not raised in his Article 78 petition the precise constitutional claims asserted in his federal action, the Second Circuit neverless held that Rooker-Feldman precluded the exercise of subject matter jurisdiction over Moccio's federal constitutional claims. The Court reasoned that Moccio's due process and equal protection claims were premised upon his contention that his termination was arbitrary and capricious and without rational basis, and that this precise contention was rejected in the Article 78 proceeding. See id. at 200-01.
Each of the claims plaintiff Roemer asserts in his Third Amended Complaint against the Board of Education and PERB, and implicitly against Pappas and Coppin, is, like the claims in Moccio, in essence a challenge to the validity of the disciplinary charges lodged against him. To succeed on his substantive due process claims, plaintiff would be required to show that defendants infringed upon his property interests in an arbitrary and or irrational manner. See, e.g. Harlen Associates v. Inc. Village of Mineola, 273 F.3d 494, 503 (2d Cir. 2001)7. The validity of the charges filed against plaintiff, however, has already been sustained by an arbitration panel. The arbitration panel found that the charges of insubordination and incompetence were properly lodged, substantiated by the evidence, and sufficient to warrant plaintiff's dismissal. Although plaintiff challenged the panel's findings and recommendations in New York State Supreme Court, his challenge was dismissed. Moreover, with the exception of his claims for emotional distress and punitive damages, plaintiff seeks the same relief in this action that he sought, but failed to obtain, in his two state court petitions. See Harris, 202 F.Supp.2d at 165 (finding Rooker-Feldman applicable by examining the remedies plaintiff sought in his federal action, and observing that success on the federal claims would result in "granting [plaintiff] essentially the same relief he failed to obtain" from the state court) and at 168 (holding that decision in Article 78 challenge to license revocation "precisely embodies the issues of fact and law" raised by plaintiff's substantive due process claim). Thus, the claims in plaintiff's federal complaint described above could not be sustained without upsetting the decision of the arbitration panel, or concluding that the New York State Supreme court erred when it dismissed plaintiff's Article 75 and Artice 78 petitions. Accordingly, this Court lacks subject matter jurisdiction over these claims pursuant to Rooker-Feldman 8.
Although he is not named in the complaint, New York State Supreme Court Justice Vaughan is also alleged to have violated the plaintiff's due process rights. According to the complaint, Justice Vaughan deprived plaintiff of due process by dismissing his Article 75 petition, thereby depriving plaintiff of a remedy to whch he was entitled (¶ 36); by not requiring defendant Board of Education to respond to a Reply Affidavit plaintiff submitted (¶ 37); and by presiding over and dismissing plaintiff's Article 78 Petition even after plaintiff had filed a letter of complaint against him (¶¶ 50-52). To the extent these allegations are intended to suggest that the state court proceedings were so flawed as to preclude application of the Rooker-Feldman doctrine, the suggestion must be rejected. First a party may not trigger an obligation to recuse simply by suing or filing a grievance against a judge presiding over his case. See, e.g., Jemzura v. Public Service Commission, 961 F.Supp. 406, 411 (N.D.N. Y. 1997); Jones v. City of Buffalo, 867 F.Supp. 1155, 1162 (W.D.N.Y. 1994). Moreover, Rooker-Feldman provides that a federal court lacks jurisdiction over a challenge to a state court decision, even if the state court's actions are alleged to be unconstitutional. See Hachamovitch, 159 F.3d at 694.
The final paragraphs of plaintiff's complaint concern defendant Levy. Plaintiff's only claim agsinst Levy appears to be that Levy's withdrawal from representation forced plaintiff to proceed with his Article 75 peitition without counsel, which plaintiff contends violated his due process rights (¶ 32). Plaintiff's state court action against Levy for malpractice was dismissed by New York Supreme Court Justice Steinhardt 9. It is hard to imagine any allegations a former client might make against his privately retained attorney which would be insufficient to state a claim of professional malpractice but adequate to assert a violation of constitutional rights. Justice Steinhardt's ruling, and the Appellate Division's decision affirming it, therefore preclude this Court from exercising jurisdiction over plaintiff's federal cuase of action against Levy in this case. Even if jurisdiction were not lacking under the Rooker-Feldman doctrine, plaintiff's claim against Levy would have to be dismissed for failure to state a claim. The only conduct attributed to defendant Levy in plaintiff's complaint is that Levy, two weeks after being retained as private counsel in a civil matter, withdrew from further representation of plaintiff. This allegation clearly fails to state a violation of a consitutionally protected right.
Plaintiff's constitutional claims against each of the defendants may succeed only if the state court decision described above were wrongly decided. Accordingly, with the exceptions discussed below, I respectfully recommend that plaintiff's Third Amended Complaint be dismissed for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine 1.
II. Constitutional Challenge to New York State Education Law 3020-a
Roemer contends in his complaint that New York State Education Law § 3020-a is unconstitutional becuase it requires teachers to seek review of adverse arbitration decisions pursuant to New York CPLR Article 75, thus depriving them of the borader scope of review available under CPLR Article 78. See Compl. ¶ 3. Although the precise nature of his constitutional challenge is not apparent from his complaint, Roemer argues in his memorandum of law in opposition to defendants' motions that the statue violates the due process and equal protection rights of teachers. See Pl.'s Mem. of Law in Opp'n to Mot. to Dismiss the Third Am. Compl. ("Pl. Mem."), pp. 17-21.
The Rooker-Feldman doctrine does not preclude a general challenge to the constituionality of a state court statute or rule. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 103 S.Ct. 1303, 1316 (1983); Fariello v. Campbell, 860 F.Supp. 54, 66 (E.D.N.Y. 1994). Hoever, plaintiff does not seek a declaratory judgment holding Section 3020-a unconstituional in his pray for relief. It therefore appears that plaintiff has failed to state a proper general challenge to the constitutionality of the statute. See Phifer, 289 F.3d at 59, n. 4. In his opposition memorandum, however, plaintiff suggests that he will seek leave to add a claim for declaratory judgment holding Section 3020-a unconstitutional. For the reasons set forth below, plaintiff's proposed declaratory judgment claim would be futile, and his implicit application for leave to amend his complaint to add it should therefore be denied. See, e.g., Jones v. New York State Division of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999)(holding that "a district court may properly deny leave when amendment would be futile").
Due process requires notice and an opportunity to be heard before the deprivation of a constitutionally protected significant property interest. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493 (1985). Tenure as a public employee is a property interest protected by the constitution. See Gilbert v. Homar, 520 U. S. 924, 928-29, 117 S.Ct. 1807, 1811 (1997)(citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709-2710 (1972)). To comport with due process, a "[t]enured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, adn an opportunity to present his side of the story" prior to termination. See Loudermill, 470 U.S. at 546, 105 S.Ct. 1495. The holding in Loudermill rested in part upon the opportunity for a full post-termination hearing. See id.
Education Law § 3020-a provides even more procedural protections than due process requires. The statute entitles an employee to a written statement of any charges lodged against him, including a statement of the potential penalties associated with the charges. See Section 3020-a(2)(a). Although the employee may be suspended before a hearing on the charges is held, the suspension must be with pay, unless the employee has pleaded guilty to or been convicted of certain felonies. See Sections 3020-a(2)(b). If the employee seeks a hearing, he is entitled to one before a neutral hearing officer and, under certain circumstances, before a panel of three hearing officers. See Sections 3020-a(2)(c); 3020-a(3)(b)(iv). The employee may seek pre-hearing discovery and, at the hearing, has the right to be represented by counsel, to subpoena witnesses, to cross-examine adverse witnesses, and to testify or not as he chooses. See Section 3020-a(3)(c)(i), (iv). All testimony is taken under oath and transcribed, and the employee may decide whether the hearing is privately held or opened to the public. See Section 3020-a(3)(c)(ii). Once the hearing is concluded, the hearing officer is obliged to render a written decision within a specified time, including findings of fact, conclusions, and a statemen of what penalty, if any, should be imposed. See Section 3020-a(4)(a). These procedures are more than sufficient to meet the requirements of due process. See Montefusco v. Nassau County, 39 F.Supp.2d 231, 239-40 (E.D.N.Y. 1999).
Before amendments made in 1994, Section 3020-a permitted a teacher to appeal a hearing officer's decision pursuant to CPLR Article 78. See McKinney's 1994 Session Laws of N.Y., vol. 1, ch. 691, § 3020-a (1994). The amended statute retains the right to an appeal, but requires that any appeals be taken pursuant to CPLR Article 75, Section 7511. See Section 3020-a(5). As plaintiff points out, the grounds for vacating or modifying an arbitration award pursuant to CPLR Article 75 are somewhat narrower than the grounds which may be raised in an Article 78 proceeding. Compare CPLR § 7511 with CPLR § 7803. It appears that this difference, and plaintiff's assertion that other city employees may have the right to bring Article 78 proceedings if they are dismissed, forms the basis of plaintiff's equal protection challenge.
Because dismissed New York city schoolteachers are not a "suspect class," the statute plaintiff challenges on equal protection gorunds must be afforded deferential "rational basis" review. See Malley v. Fernandez, No. 91-Civ-5635, 1992 WL 204359, at * 5-6 (S.D.N.Y. Aug. 10, 1992). When applying this standard, "a court need only identify plausible reasons that may have prompted the legislature to enact the statute in question.. whether or not these plausible reasons in fact underlie the legislative decision." Id. In light of the unusually broad range of procedural rights afforded any teacher facing disciplinary charges provided by Section 3020-a and, in particular, the extensive rights afforded a teacerh who seeks a hearing, it is plainly reasonable to limit a teacher's right ot appeal an adverse hearing decision to the same scope of review generally applicable in actions seeking to challenge arbitration awards.
For these reasons, it would be futile to seek a declaratory judgment finding Section 3020-a unconstitituional. I therefore respectfully recommend that, to the extent plaintiff seeks to amend his complaint to seek a declaratory judgment, his motion for leave to amend be denied.
III. First Amendment Retaliation Claims
As noted above, plaintiff alleges in his amended complaint that he was removed from teaching responsibilities in retaliation for seeking to bring an appeal to the New York City Schools Chancellor from defendant Coppin's denial of a grievance he had filed. See Comp. ¶ 14. Because it is not clear that plaintiff presented this claim to the arbitration panel or in his state court petitions, it is at least arguable that, under the limited construction of the Rooker-Feldman doctrine in Moccio, this court has subject matter jurisdiction over theis aspect of plaintiff's complaint. Moreover, construed liberally, the allegation arguably states a First Amendment claim cognizable under Section 1983.
Assuming this court were to construe plaintiff's allegation as a First Amendment retaliation claim and were to exercise subject matter jurisdiction over it, the claim would nevertheless be subject to dismissal. First, the claim is time-barred. Federal civil rights claims brought in New York federal courts are subject to a three-year limitations period. See, e.g., Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 256 (2d Cir. 1998); Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994); Baker v. New York City, 934 F. Supp. 533, 534-35 (E.D.N.Y. 1996). The period begins to run when the plaintiff knows or has reason to know of the injury which forms the basis of his claim. See, e.g., Pinaud v. County of Suffolk, 52 F. 3d 1139, 1156 (2nd Cir. 1995); Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994); Baker, 934 F. Supp at 535. Plaintiff asserts that the action taken by defendants in retaliation for his attempt to appeal to the Chancellor was his removal from the classroom. Compl. ¶ 14. Plaintiff contends that he was removed from the classroom on February 29, 1996. Compl. ¶ 12. Plaintiff filed his original complaint in this action on February 23, 2001, more than three years after he was removed from the classroom. Plaintiff makes no allegation that it was only at some later point, within the limitations period, that he had reason to know of the connection he alleges between his attempt to appeal to the Chancellor and the Board's decision to remove him from the classroom. Accordingly, plaintiff's First Amendment claim is taime-barred.
Even if it were not time-barred, plaintiff's First Amendment retaliation claim would be subject to dismissal. To state a claim of First Amendment retalitation, a plaintiff must allege that he engaged in speech involving a matter of public concern, and that his speech was a substantial or motivating factor in his employer's decision to terminate him. See Hellstrom v. U.S. Dep't of Vet. Affairs, 201 F.3d 94, 97 (2d Cir. 2000). In contrast, "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of personnel decision taken by a public agency allegedly in reaction to the employee's behavior." See Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 1690 (1983). According to palintiff's complaint, the speech at issue here did not even take place: plaintiff asked the UFT to appeal the denial of his grievance to the Chancellor, but the UFT declined. See Compl. ¶ 11. Moreover, plaintiff's grievance concerned the manner in which his supervisors were evaluating his own teaching methods and imposing discipline upon him, which were matters of private rather than public concern.
Finally, even if a plaintiff is able to show that protected First Amendment activities may have been a factor in his termination , a defendant employer may overcome liabilitiy by demonstrating that the plaintiff would have been terminated even absent his protected speech. See Hellstrom, 201 F.3d at 97, citing Lewis v. Cowen, 165 F.3d 154, 162-63 (3d Cir.); cert. denied, 528 U.S. 823, 120 S.Ct. 70 (1999). In this case, the Board of Education's allegations of insubordination and incompetence have been extensively reviewed by an arbitration panel, and have been found sufficient to justify plaintiff's dismissal. Plaintiff's Article 75 Petition challenging the panel's decision was dismissed. An adequate independent basis for plaintiff's termination has therefore already been established. For all these reasons, I respectfully recommend that plaintiff's retaliation claim be dismissed.
In his memorandum of law in opposition ot defendant's motions to dismiss, plaintiff points to additional instances of speech he now claims may have resulted in adverse employment concequences. More specifically, plaintiff asserts that a letter he wrote on August 22, 1994, and teestimony he gave on January 24, 1995, may have caused the Board of Education to reject a settlement of disciplinary charges it had filed agains him. Plaintiff also contends that statements he made at a meeting on January 16, 1996, led to his removal from his classroom on February 29, 1996. See Pl. Mem., pp. 28-31.
As noted above, plaintiff filed his original complaint in this action on February 23, 2001. Plaintiff was removed from his classroom on February 29, 1996. The Board of Education rejected the settlement agreement referred to by plaintiff on or before May 2, 1997. See Docket Entry 26, Plaintiff's Aff. in Supp. of Mot. For Summ. Judgmnt., ¶ 44 (Docket Entry 26). Accordingly, plaintiff's new allegations of protected speech are also time-barred. I therefore respectfully recommend that, to the extent the cited portion of plaintiff's memorandum of law may be construed as a motion for leave to amend, the motion be denied.
IV. Plaintiff's Application to Add a Claim for Injunctive Releif and to Name Four PERB Officials as Defendants
In his oppisition memorandum, Roemer states that he seeks leave to file a Fourth Amended Complaint adding four PERB officials as defendants. It appears plaintiff seeks to sue these defendants for their participation in PERB's dismissal of his unfair practices charge. Plaintiff also seeks to add a claim for an injunction, requiring PERB officials to "investigate and resolve" his unfair practices charges. See Pl Mem., p. 44.
For the reasons discussed above, pursuant to the Rooker-Feldman doctrine, this Court lacks subject matter jurisdiction over plaintiff's complaints about the conduct of PERB. Moreover, plaintiff's claims against PERB must fail for a second reason: they are barred by the Eleventh Amendment. The Eleventh Amendment bars federal suits against state agencies absent a waiver of sovereign immunity. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 s.Ct. 900, 908 (1984); Jones v. N.Y.S. Div. of Military and Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1999). PERB is an agency of the government of the State of New York. See New York Civil Service Law § 205(1). To the extent plaintiff seeks to amend his complaint to assert claims against PERB officials in their official capacity, these claims would be deemed simply another way of suing New York State, and would be barred by the Eleventh Amendment as well. See, e.g., Hafer v. Melo, 502 U. S. 21, 25, 112 S.Ct. 358, 361-62 (1991).
The Eleventh Amendment does not bar suits against public officials sued in their individual capacities. See. id. However, it appears that plaintiff's proposed claims against the PERB officials he seeks to sue involve their role in adjudicating his unfair practices charge. Because they were functioning essentially as judges, these individuals would likely be entitled to absolute immunity from claims for damages brought against them in their individual capacities. See Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 500 (1985)(noting that absolute immunity has been extended to those "who perform functions closely associated with the judicial process," including hearing examiners and administrative law judges); Austern v. Chicago Board Options Exchange, Inc., 898 F. 2d 882, 886 (2d Cir 1990)(extending full immunity to arbitrators based upon the "'functional comparability' of the arbitrator's role... to that of his judical counterpart").
Plaintiff suggests that his proposed amendment would seek an injunction requiring PERB officials to "investigate and resolve" his unfair practices charge. The Eleventh Amendment does not preclude a claim for prospective injunctive relief intended to halt state action which violates federal constitutional rights. See Pennhurst, 465 U.S. at 102, 104 S. Ct. at 909; Kostok v. Thomas, 105 F.3d 65, 68-69 ((2d Cir. 1997). However, plaintiff does not any where explain why he is constitutionally entltled to an "investigation" of his unfair practices charge. Moreover, to the extent plaintiff seeks a different resolution of that charge than the one he has already obtained from PERB and unsuccessfully challenged in his Article 78 petition, his claim would plainly be precluded by Rooker-Feldman. For all these reasons, plaintiff's motion to amend his complaint to add a claim for injunctive relief and to name four PERB officials as defendants should be denied.
Conclusion
For the reasons stated above, I respectfully recommend that the motions to dismiss brought by defendants New York City Board of Education of the City School District of New York, Public Employment Relations Board, Herbert Monte Levy, Joyce Coppin, and Tom Pappas be granted, that plaintiff's motions for summary judgment, for sanctions, and for leave to file a Fourth Amended Complaint be denied, and that this case be closed. Any objections to the recommendations made in this Report must be filed with the Cleark of the Court and the Chambers of the Honorable Nina Gershon within ten days of receiving this Report and Recommendation and, in any event, no later than January 24, 2003. Failure to file timely objections may waive the right to appeal the District Court's Order. See 28 U.S. C § 636(b)(1); Fed R. Civ. P. 6(a), 6(e), 72; Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir. 1989).
Steven M. Gold
United States Magistrate Judge
Brooklyn, New York
December 30, 2002.
Footnotes
(4) Plaintiff's Article 75 Petition is annexed as Exhibit D to the DeLarco Declaration.
(5) Plaintiff's Article 78 Petition is annexed as Exhibit B to the DeLarco Declaration.