NAOMI REICE BUCHWALD, District Judge.
In this 42 U.S.C. § 1983 action brought against defendants the City of New York (or "City"), the New York City Department of Education ("DOE"), and related entities, plaintiff Theodore Smith, a former New York City schoolteacher, claims that defendants retaliated against him in violation of the First Amendment after he began to complain about overenrollment in his physical education classes. Smith also asserts claims for breach of contract and a violation of the Employee Retirement Income Security Act of 1974 ("ERISA"). Defendants move under Rule 12(b)(6) to dismiss all claims for a variety of reasons, including the res judicata effect of Smith's prior federal case, failure to state a claim upon which relief can be granted, and the applicable statutes of limitations. For the reasons that follow, the motion is granted.
This is not Smith's first legal challenge to his discipline and termination from employment as a New York City teacher. A prior federal case in this
The operative complaint in the instant case is the Second Amended Complaint dated September 4, 2014 ("Complaint" or "Compl."), which was submitted by counsel. The Complaint's general premise is that "immediately following [Smith's] lawful complaints concerning the safety of students placed in dangerously oversized classes ... [Smith] was subject to a targeted campaign of retaliation." (Compl. ¶ 2.) The Complaint's main factual allegations, supplemented for narrative clarity with the results of the § 3020-a hearings, are as follows.
The DOE hired Smith as a teacher in 1995 and awarded him tenure in 1998. (See Compl. ¶ 1.) In 2004, Smith accepted a position teaching physical education and health classes at the New York City Museum School (the "Museum School"), where he hoped to be promoted to assistant principal. (See id. ¶ 14.) But Smith's prospects deteriorated quickly after Smith complained to the Museum School principal, Lindley Uehling,
In September 2006, disciplinary charges were brought against Smith. (See id. ¶ 19.) During the § 3020-a hearing on these charges, Smith was asked to sign an agreement accepting the unsatisfactory rating and giving up his rights to an appeal. (See id. ¶ 20.) Smith refused this, which displeased his attorney, David Kearney, so much that Kearney began to "sabotage" Smith. (Id.) In particular, Kearney "falsely accused [Smith] of threatening [Kearney's] life and that of the arbitrator reviewing his case." (Id. ¶ 20.) Smith
In the meantime, in May 2007, Smith filed a complaint with the Special Commissioner of Investigation for the New York City School District ("SCI"), in which he alleged misconduct by defendants and Kearney. (See Compl. ¶ 23.) SCI interviewed Smith without questioning him on Kearney's allegations that Smith had made threats against Kearney and Tillem, but then SCI produced a "false report" concluding that it was credible that Smith had made such threats. (See id. ¶¶ 25-27.) Based on SCI's false report, a second set of disciplinary charges was lodged against Smith. (See id. ¶ 27.) On June 1, 2010, the arbitrator in the second § 3020-a hearing decided that "Smith[] uttered death threats against [Tillem]," and that "[s]uch threats constituted just cause for ... dismissal from service." (Evans Decl. Ex. F, at 50.) That month, Smith was terminated from employment. (See Compl. ¶ 27.) The state courts upheld this decision. See In re Smith v. N.Y.C. Dep't of Educ., 109 A.D.3d 701, 972 N.Y.S.2d 221 (1st Dep't), lv. denied, 22 N.Y.3d 856, 980 N.Y.S.2d 920, 3 N.E.3d 1168 (2013).
Based on these factual allegations, the Complaint asserts three claims against defendants. First, it asserts a claim under 42 U.S.C. § 1983 that defendants violated the First Amendment by retaliating against him for "lawful public speech about matters of public concern." (Compl. ¶ 39.) Second, Smith claims breach of express and implied contract, contending that defendants' anti-retaliation policies constituted a "de facto contract" and that he relied on those policies to his detriment. (See id. ¶¶ 41-43; see also id. ¶ 32 ("[P]olicies promulgated both by the DOE and SCI expressly prohibit retaliation against any individual who engages in protected conduct.").) Third, Smith claims that defendants violated section 510 of ERISA by terminating him with "an invidious motive to preclude [Smith] from obtaining his full retirement pension." (Compl. ¶ 46; see also id. ¶ 29 (Smith was denied "back-pay to which he was entitled in connection with his retirement").)
Following an exchange of pre-motion letters but before defendants' motion was filed, Smith discharged his counsel in this action. On January 9, 2015, defendants filed the instant motion to dismiss and supporting papers. On April 9, 2015, Smith filed pro se opposition papers. On April 23, 2015, defendants filed a reply memorandum. On July 27, 2015, Smith filed a supplemental pro se letter.
Smith's prior case in this Court (i.e., Smith I) was commenced on June 15, 2006. That case was stayed and then dismissed without prejudice in light of the first disciplinary proceeding against Smith. However, it was later reinstated and, following a summary judgment motion, judgment was entered on a second amended complaint dated June 2, 2010 (the "Prior Complaint" or "Pr. Compl.").
In Smith I, Smith asserted claims under the Americans with Disabilities Act, the New York Whistleblower Law, the Age Discrimination in Employment Act, the New York Labor Law, the New York Executive Law, the New York City Administrative Code, and the common law of libel, and under 42 U.S.C. § 1983 for the violation of due process. More specifically, as summarized in the Smith I opinion, Smith contended:
Smith I, 808 F.Supp.2d at 577.
The defendants moved for summary judgment, arguing, inter alia, that the decision in the first § 3020-a hearing barred Smith's federal claims by collateral estoppel. On July 18, 2011, the defendants' motion for summary judgment was granted in its entirety. See id. at 584. As discussed in Part III.B.2 below, the Court ruled, as to the federal statutory claims, that the factual findings of the § 3020-a arbitrators precluded Smith from making out prima facie cases of employment discrimination and retaliation. Smith did not appeal.
On a motion to dismiss under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See Krys v. Pigott, 749 F.3d 117, 128 (2d Cir.2014). However, "we `are not bound to accept as true a legal conclusion couched as a factual allegation.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To survive the motion, the "complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
In evaluating the sufficiency of a pleading to state a claim, a "court may consider the facts alleged in the pleadings, documents attached as exhibits, and documents incorporated by reference in the complaint," DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010), as well as "matters of which judicial notice may be taken," Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991). Similarly, a court may consider a res judicata or collateral estoppel defense on a Rule 12(b)(6) motion when the court's inquiry is "limited to the plaintiff's complaint, documents attached or incorporated therein, and materials appropriate for judicial notice." TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 498 (2d Cir.2014); see, e.g., Lefkowitz v. McGraw-Hill Global Educ. Holdings, LLC, 23 F.Supp.3d 344, 360 (S.D.N.Y.2014).
Defendants' principal arguments are (A) that the City is an improper defendant; (B) that the Smith I decision bars Smith's present claims by res judicata or collateral estoppel; (C) that the Complaint fails to state a § 1983 or ERISA claim upon which relief can be granted; and (D) that the § 1983 and breach-of-contract claims are barred by applicable statutes of limitations. In light of Smith's pro se status, we decline to treat Smith's failure to respond to some of these points as concessions, and we construe his arguments liberally.
Defendants argue that the City is an improper party because Smith was employed by the Department of Education, an independent entity. It is well established that "[t]he City and the DOE are separate legal entities." Sotomayor v. City of N.Y., 862 F.Supp.2d 226, 248 (E.D.N.Y.2012), aff'd, 713 F.3d 163 (2d Cir. 2013); see, e.g., Perez ex rel. Torres v. City of N.Y., 41 A.D.3d 378, 379, 837 N.Y.S.2d 571 (1st Dep't 2007). Accordingly, "[c]ourts have consistently rejected the argument that teachers may sue the City on the basis of their employment by the NYCDOE." Williams v. City of N.Y., No. 12 Civ. 8518(RJS), 2014 WL 1383661, at *8 (S.D.N.Y. Mar. 26, 2014), aff'd, 602 Fed. Appx. 28 (2d Cir.2015).
However, Smith also names as defendants the Special Commissioner of Investigation for the New York City School District ("SCI") and the New York City Department of Investigation ("DOI"). Smith alleges that "SCI submitted a false report" concluding that Kearney's allegation against Smith was credible. (Compl. ¶ 25.) The SCI is a component of the DOI, a City agency that is independent of the DOE. (See Compl. ¶ 9.)
Defendants argue that all of defendants' claims are barred by the Smith I decision under the preclusion doctrines of res judicata and collateral estoppel.
The doctrine of res judicata, also known as claim preclusion, provides that "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). A defendant asserting res judicata must show "that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the same adverse parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (brackets and internal quotation marks omitted).
Here, the first two elements of the res judicata test are plainly satisfied. Clearly, "summary judgment is an adjudication on the merits for res judicata purposes," Rafter v. Liddle, 704 F.Supp.2d 370, 375 (S.D.N.Y.2010), and thus Smith I was an adjudication on the merits.
The second requirement of privity is also met. The parties in the two actions are either the same (in the case of Smith and the DOE) or are in privity with each other. In this context, privity requires that "the new defendant [have] a sufficiently close relationship to the original defendant to justify preclusion." Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir.1995). "Government officials sued in their official capacities are generally considered to be in privity with the government entity that they serve." Johnson v. Cty. of Nassau, 480 F.Supp.2d 581, 607 (E.D.N.Y.2007). Here, therefore, the City (the proper defendant in this action respecting SCI's allegedly wrongful acts), is in privity with the Special Commissioner of Investigation and the Deputy Commissioner for SCI, who were named in Smith I in both individual and official capacities.
Similarly, the Smith I claims were sufficiently related to the claims in this case to justify the application of res judicata. A claim that "could have been raised in the prior action" is precluded by a prior judgment if the purportedly new
Here, the factual allegations in Smith's present complaint overlap almost entirely with those addressed on the merits in Smith I. In Smith I, as in this case, Smith alleged that while assigned to the Museum School, he complained to Principal Uehling that he had been asked to teach dangerously large classes, and that Uehling responded not by taking action to address Smith's underlying concern but by giving Smith negative performance evaluations. (Compare Pr. Compl. ¶¶ 33-36, with Compl. ¶¶ 14-15.) In Smith I, as in this case, Smith claimed that his negative performance reviews were a pretext for DOE employees' intention to suspend and attempt to terminate him in violation of anti-retaliation laws. (Compare, e.g., Pr. Compl. ¶¶ 43, 93-95, 97, 99, 105, with Compl. ¶¶ 16, 39, 41-43.) In Smith I, as in this case, Smith alleged that Kearney falsely accused Smith of threatening Tillem and that SCI improperly credited Kearney's accusation, leading to a second set of disciplinary charges against Smith. (Compare Pr. Compl. ¶¶ 55-66, with Compl. ¶¶ 20-27.) Thus, the claims in this case involve substantially the same transactions that were involved in Smith I. Proof of these claims would depend upon substantially the same facts and evidence. That Smith has now asserted different legal theories for recovery does not help him, for "a plaintiff cannot avoid the effects of res judicata by `splitting' his claim into various suits, based on different legal theories." Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 110 (2d Cir.2000).
However, Smith I is only res judicata as to claims that had arisen through June 2, 2010, the date of the Prior Complaint. "[A] claim that arose after a suit was commenced but prior to judgment is [not] barred by res judicata if not pursued through a supplemental pleading." S.E.C. v. First Jersey Sec., Inc., 101 F.3d 1450, 1465 (2d Cir.1996); see also Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 370 (2d Cir.1997) ("The res judicata doctrine does not apply to new rights acquired during the action which might have been, but were not, litigated."). In the prior action, Smith submitted a proposed complaint dated July 14, 2010, which would have added an allegation that Smith had been terminated from employment (see Lewis Aff. Ex. A, at ¶ 81), but as explained at note 7 above, the Court disregarded that version of the complaint because Smith had not sought permission to file it. See Smith I, 808 F.Supp.2d at 574 n. 2.
Collateral estoppel, also known as issue preclusion, bars relitigation of specific factual or legal issues in a subsequent proceeding "where (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits." Grieve v. Tamerin, 269 F.3d 149, 153 (2d Cir. 2001) (brackets and internal quotation marks omitted); see, e.g., Smith I, 808 F.Supp.2d at 577-78. In Smith I, this Court concluded that the factual findings in the § 3020-a hearings collaterally estopped Smith from making out a prima facie case of discrimination or retaliation under the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA"). That legal conclusion in Smith I is, in turn, entitled to collateral estoppel effect in this case.
Specifically, in Smith I, this Court held that the findings of the § 3020-a hearings were entitled to collateral estoppel effect. See id. at 580 (citing Burkybile v. Bd. of Educ., 411 F.3d 306, 308 (2d Cir.2005)). This Court then held that those findings "bar[red] [Smith's] federal discrimination claims." Smith I, 808 F.Supp.2d at 580. In particular, this Court concluded that "in finding Smith guilty of the ... charges and rejecting Smith's arguments that Principal Uehling and others manufactured the charges against him, the parties actually litigated and the hearing officers actually decided that any adverse employment action was justified and not based on impermissible discrimination." Id. Further, "because the hearing officers concluded that there existed just cause for the adverse employment actions, those officers actually decided that Smith cannot make out a prima facie case of discrimination nor can he put forth evidence of pretext." Id.
Similarly, this Court concluded that due to the hearing officers' findings "that Smith had engaged in misconduct, time and attendance abuse, had otherwise neglected his classroom duties, and had uttered death threats against another hearing officer," all of which amounted to "just cause for taking adverse employment action against Smith," Smith was "precluded from relitigating these central issues, and therefore [could not] establish a causal connection between any protected activity and the adverse employment actions for the purpose of a discrimination claim." Id. at 582. These conclusions concerning the preclusive effect of the § 3020-a hearings were the principal basis for the dismissal of the federal statutory claims in Smith I.
The conclusion in Smith I that the § 3020-a hearing decisions precluded Smith from making out a prima facie case for employment retaliation under the ADA and the ADEA itself precludes Smith from arguing that he can make out a prima facie case for First Amendment retaliation. No matter what the source of law, a prima facie case of retaliation requires the defendant to "establish a causal connection between [the] protected activity and the adverse employment actions." Smith I, 808 F.Supp.2d at 582; see, e.g., Smith v. Cty. of
Defendants argue that Smith fails to state a claim upon which relief can be granted under 42 U.S.C. § 1983 and ERISA. Specifically, defendants argue that (1) Smith fails to state a claim for First Amendment retaliation because the speech alleged in his complaint was made pursuant to his official duties as a teacher and not on matters of public concern and, therefore, was not protected by the First Amendment; and (2) that the protections of ERISA do not apply to Smith's pension and retirement benefits because ERISA does not cover governmental benefit plans.
To plead a claim of retaliation in violation of the First Amendment, a public employee plaintiff must allege (1) that he engaged in activity protected by the First Amendment; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action. See Smith v. Cty. of Suffolk, 776 F.3d 114, 118 (2d Cir.2015); Winters v. Meyer, 442 F.Supp.2d 82, 86-87 (S.D.N.Y. 2006). Here defendants challenge that Smith engaged in protected activity.
The First Amendment only protects a public employee's speech when "the employee [speaks] as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). This test has two elements, both of which must be satisfied. First, the employee must speak "`as a citizen' rather than solely as an employee." Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir.2011). "[W]e ask two questions to determine whether a public employee speaks as a citizen: (A) did the speech fall outside of the employee's `official responsibilities,' and (B) does a civilian analogue exist?" Matthews v. City of N.Y., 779 F.3d 167, 173 (2d Cir.2015). Second, the employee must speak on a matter of public concern. This demands speech that, taking into account its "content, form, and context," Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), "can be fairly considered as relating to any matter of political, social, or other concern to the community, or [that] is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public," Lane v. Franks, ___ U.S. ___, 134 S.Ct. 2369, 2380, 189 L.Ed.2d 312 (2014) (internal quotation marks omitted).
Construed liberally, the Complaint alleges that two kinds of speech led to adverse employment action. The first is Smith's complaint to Principal Uehling
The second type of speech alleged in the Complaint involves Smith's complaint to Schools Chancellor Klein and later to SCI. Communications made directly to the DOE's leadership and to an outside investigatory agency are arguably analogous to citizen speech. Cf. Weintraub, 593 F.3d at 204 (distinguishing "complaint[s] to an elected representative or inspector general" from "internal communication[s]"). However, Smith's complaints that he personally had been mistreated could not fairly be described as statements on matters of "public concern." A single public employee's attempt to "redress personal grievances" lacks a "broader public purpose." Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.1999); see, e.g., Connick v. Myers, 461 U.S. at 148, 103 S.Ct. 1684 (questions that comprised a "mere extension[] of [the plaintiff's] dispute" with her employer did not address matters of "public import"); Singer v. Ferro, 711 F.3d 334, 340 (2d Cir.2013) ("The First Amendment does not protect all private ventings of disgruntled public employees.").
In sum, none of Smith's speech alleged in the Complaint was protected by the First Amendment. Therefore, the claim for First Amendment retaliation is not a claim upon which relief can be granted.
Smith alleges that defendants interfered with his rights to teachers' pension and retirement plan benefits in violation of section 510 of ERISA, 29 U.S.C. § 1140. But "governmental plans," including any "plan established or maintained for its employees ... by the government of any State or political subdivision thereof," are exempt from ERISA's coverage. 29 U.S.C. §§ 1002(32), 1003(b)(1); see Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 913-15 (2d Cir.1987) (describing history and construction of the "governmental plan" exception); see, e.g., Grant v. Teacher's Ret. Sys. of City of N.Y., No. 07 Civ. 5534(GEL), 2007 WL 3145093, at *5 (S.D.N.Y. Oct. 25, 2007) (concluding that the Teachers Retirement System is a governmental plan that is exempt from ERISA). Therefore, the ERISA claim is not a claim upon which relief can be granted.
Defendants argue that the § 1983 and contract claims are time-barred under the applicable statutes of limitations.
In New York, the statute of limitations for a § 1983 claim is three years. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir.2015). A long line of Second Circuit precedent has applied a discovery rule in this context, holding that a § 1983 claim accrues "when the plaintiff knows or has reason to know of the injury which is the basis of his action." E.g., Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir.2013); Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002); Singleton v. City of N.Y., 632 F.2d 185, 191 (2d Cir.1980).
Here, although Smith alleges that he was terminated from employment in June 2010 (see Compl. ¶ 29), he did not commence this lawsuit until April 11, 2014. Smith attempts to avail himself of the discovery rule by alleging that he "only recently discovered for the very first time on July 28, 2014" that the DOE placed him on a "no hire list." (Compl. ¶ 30; see Pl.'s Mem. 20-21.) This is not sufficient to bring Smith's claim within the statute of limitations for three reasons. First, Smith's allegation that he only recently learned that he was on a "no hire" list is contradicted by his own Prior Complaint, which alleged that he was "placed on the Ineligible/Inquiry list." (Pr.Compl. ¶ 52.) Smith does not contradict the City's suggestion that the "no hire" and "Ineligible/Inquiry" lists are the same thing. Accordingly, Smith's current allegation need not be accepted as true. See VFS Fin., Inc. v. Falcon Fifty LLC, 17 F.Supp.3d 372, 379 (S.D.N.Y.2014) ("Allegations in the pleading that are `contradicted by more specific allegations or documentary evidence' are not entitled to a presumption of truthfulness.") (quoting Kirkendall v. Halliburton, Inc., 707 F.3d 173, 175 n. 1 (2d Cir.2013)). Second, there can be no serious doubt that Smith knew of his termination from employment when it happened. That Smith later found out about a collateral consequence of that termination does not toll the running of the limitations period. A § 1983 cause of action "accrues even though the full extent of the injury is not then known or predictable." Smith v. Campbell, 782 F.3d 93, 100 (2d Cir.2015) (quoting Wallace v. Kato, 549 U.S. 384, 392, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). Third, and most straightforwardly, because Smith brought this action in April 2014, it cannot be the case that he discovered his claims in July 2014.
Under New York Education Law § 3813(2-b), non-tort claims against schools, school districts, boards of education, and their officers are subject to a one-year statute of limitations. See Reg'l Econ. Cmty. Action Program, Inc. v. Enlarged City Sch. Dist. of Middletown, 18 N.Y.3d 474, 479, 941 N.Y.S.2d 25, 964 N.E.2d 396 (2012); Sotomayor v. City of N.Y., 862 F.Supp.2d at 249. In New York, "[a] cause of action for breach of contract ordinarily accrues and the limitations period begins to run upon breach." Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir.
To summarize: The DOI and SCI are improper defendants because they lack the capacity to be sued; the § 1983 and breach-of-contract claims are barred by res judicata or collateral estoppel and also by the applicable statutes of limitations; and the § 1983 and ERISA claims fail to state a claim upon which relief can be granted. Therefore, defendants' motion to dismiss (Doc. No. 19) is granted and the Second Amended Complaint is dismissed with prejudice. The Clerk of Court shall enter judgment.
