Opinion
01 Civ. 4703 (HB)
December 13, 2002
OPINION ORDER
I. INTRODUCTION
Defendants bring this motion for summary judgment against plaintiff, Sheila Hurdle, who is suing the defendants pursuant to 42 U.S.C. § 1983. Hurdle alleges that the defendants conspired with each other to retaliate against her after she spoke out about deficiencies in the Corrective Action Plan ("CAP") that was formulated to address apparent shortcomings in the performance of the students at the school where she was principal. In short, this is a First Amendment claim by the plaintiff in the context of a § 1983 lawsuit. For the following reasons, defendants' motion for summary judgment is denied.
II. BACKGROUND
In 1992, Hurdle was appointed principal of Public School ("P.S.") 113. After she was principal of the school for four years, the State Education Department ("SED") identified P.S. 113 as among the schools with students who were underperforming on standardized reading tests and whose performance was not improving. The SED placed the school in a "School Under Registration Review" status. Once the SED identifies a school as failing to meet New York state standards, it gives the school three years to meet certain standards or else the school must be closed or "redesigned." If a school is kept open but redesigned, the superintendent of the district may choose to keep the existing principal or reassign the principal to another position.
As a result of the poor performance by the students at P.S. 113, Patricia Romandetto, the Community Superintendent for Community School District 3, and her staff prepared a CAP to try to improve the test scores of students at the school. Despite the recommendations in the CAP, the standardized results for 1998 showed, at best, marginal improvement. Community Superintendent Romandetto concluded that the scores of P.S. 113 would not significantly improve in the last year of its SURR status, and, in consultation with the officials of the New York City Board of Education, decided to redesign P.S. 113 by adopting the strategy developed at another school, which was academically successful. Romandetto further decided to reassign Hurdle to the District Office, to become Comprehensive Health Coordinator and to oversee the "Home Schooling, Comprehensive Health and Supervision and Administration of From 504 Protocols." She remained there until she retired on September 1, 2002.
II. STANDARD FOR SUMMARY JUDGMENT
Evidence in support of a motion for summary judgment must be reviewed in a light most favorable to the non-movant. FRCP 56(c), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If, when "[v]iewing the evidence produced in the light most favorable to the movant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991). While the burden to demonstrate that no genuine issue of material fact rests solely with the moving party, FDIC v. Giammetti, 34 F.3d 51, 54 (2d Cir. 1994), once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party "must set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denial." Rule 56(e); see Rexnord Holding, Inc. v. Biderman, 21 F.3d 522, 525-36 (2d Cir. 1994). "If the evidence [non-movant] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). An "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. DISCUSSION
To succeed on her First Amendment claim, Hurdle must demonstrate by a preponderance of evidence that (1) she engaged in free speech concerning matters of public concern, (2) she suffered an adverse employment action, and (3) the speech was, at minimum, a substantial or motivating factor for the adverse employment action. Phillips v. Bower, 278 F.3d 103, 109 (2d Cir. 2002); Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). The burden on the plaintiff to establish the prima facie elements of her claim, however, are minimal. Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997) (per curiam).
1. Protected free speech
Hurdle contends that "she objected to the implementation of the 1998 CAP plan because she did not feel that it would have been in the best interest of the students who attended P.S. 113." Plaintiffs Mem. of Law at 5. Hurdle's contention, however, appears to be a little questionable given the fact that she had no objections to the content of the CAP. Hurdle Dep. at 69, 106. Indeed, Hurdle's "object[ion] to the implementation of the 1998 CAP plan" is belied by the fact that she "fought" to get the very resources recommended by the CAP. Plaintiffs Mem. of Law at 6, 8. The only aspect about the CAP that Hurdle actually found objectionable was the manner in which it was formulated, because she, her staff, and other members of the school community allegedly were not permitted, as required by the SED, to participate in the formulation of the plan. Id.; Exh. A to Romandetto Decl. Although there was nothing objectionable in the content of the CAP, Hurdle seems to imply that implementing the 1998 CAP would not have been in the best interest of the students because the CAP was not approved in a manner consistent with SED's directive. Apparently, at least according to Hurdle, community superintendent Romandetto falsely certified that the CAP included input from the principal and staff of P.S. 113. Hurdle Dep. at 71. Notwithstanding Hurdle's somewhat confused argument and inability to fathom improvements to the CAP that she, her staff, or others may themselves would have recommended, I find that the lack of input from the school staff and community, including parents of school children at P.S. 113, into the formulation of the CAP relates to matters of public concern. Pickering, 391 U.S. at 574.
2. Adverse employment action
Plaintiff contends that she suffered a "materially adverse change" in the terms and conditions of employment when she was reassigned to the district office. Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999). A materially adverse change might be indicated by a "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices . . . unique to a particular situation." Patrolmen's Benevolent Ass'n. of City of New York v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002) (quoting Galabya v. New York City Bd of Educ., 202 F.3d 636, 640 (2d Cir. 2000); see also Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). In the instant case, plaintiff contends that in retaliation for her efforts to enable others to have input into the CAP and/or to obtain funding for the CAP's recommendations, the community superintendent reassigned her to a position with a lesser title and prestige, fewer and different responsibilities, and dramatically different reporting structure.
As principal of P.S. 113, Hurdle was responsible for, inter alia, overseeing teachers at the school, supervising instructional programs for the children, ensuring SED standards were met, disciplining students, and acting as a liaison between the school and the community, and reporting to the superintendent of her district. Hurdle Aff. ¶ 8; Plaintiff Mem. of Law at 12. To attain her position as principal, she received a masters degree, participated at the Harvard Principals Center (a program that provides principals with skills and strategies to run a school), and served as an assistant principal and acting principal at other schools. Hurdle Dep. at 13-14, 21. The community superintendent reassigned Hurdle to the district office to assume responsibility over issues relating to children's special education classes, the HIV-AIDS curriculum mandate, ensuring vision and hearing screenings of students, immunizations, the mayor's fitness program, student suspension hearings, and home schooling. See Hurdle Dep. at 21-22; Hurdle Affid. ¶ 10. There is no evidence that Hurdle was provided the necessary training to assume responsibility over aspects of the special education related matters. See, e.g., Hurdle Dep. at 21-22. Furthermore, in her new position, Hurdle no longer had a secretary, could no longer even send letters in her own name, and was placed in the awkward and somewhat embarrassing position of having to report to a fellow principal and a guidance counselor. Hurdle Affid. ¶ 10. Although I agree that the responsibilities in plaintiffs new position were not so fundamentally different as to render her experiences as principal completely "useless," Galabya v. New York City Bd of Educ., 202 F.3d 636, 641 (2d Cir. 2000), in view of the differences between her former and new position, I find that the ajury could reasonably conclude that the transfer "was to an assignment that was materially less prestigious, materially less suited to [her] skills and expertise, or materially less conducive to career advancement." Galabya, 202 F.3d at 641 (citation omitted). In addition, although Hurdle's base salary remained the same at her new position, Hurdle lost the opportunity, because of her removal, to earn additional wages on the order of $10,000 to $20,000 per year for coordinating after-school services, Hurdle Dep. at 22-23, which would add further weight to the evidence that plaintiffs transfer altered the terms and conditions of her employment in a negative way. De la Cruz, 82 F.3d at 21. Accordingly, I find that a reasonable juror could conclude that Hurdle's transfer constitutes an adverse employment action.
3. Causal Connection Between Retaliation and Speech
To make out the third element of her claim, Hurdle must show that her protests about approving the CAP was, at minimum, a substantial or motivating factor for the adverse employment action. Phillips, 278 F.3d at 109. Defendants contend, by implication, that the poor performance of students at P.S. 113, would have been sufficient cause to remove Hurdle from her position as principal, and that as a gesture of magnanimity, the community superintendent reassigned her to the district office instead of giving her an unsatisfactory rating. Despite discussing at length the poor performance of the students at P.S. 113, defendants claim that the community superintendent did not reassign her because plaintiff performed unsatisfactorily, but rather out of a desire to help the students of P.S. 113 by providing the school with new leadership and direction. Defendants' Mem. at 17; Defendants' Reply Mem. at 4. Furthermore, defendants contend that the seven month gap between plaintiffs exercise of protected free speech and reassignment is too large to show a causal relationship.
First, assuming the community superintendent reassigned Hurdle not because she found Hurdle's performance unsatisfactory, but rather for other reasons, I am at a slight loss to understand why Hurdle was not reassigned as a principal to another school, particularly in view of her years of experience and training as a principal. At other schools in the district that were closed or redesigned, the principal either remained at the same position or were transferred to another district to assume a new principalship. Hurdle Dep. at 99-100; Plaintiffs Counterstatement ¶ 8, 23. Despite her allegedly satisfactory performance, Hurdle was transferred to a position, which, as I found above, seemed to impose a materially adverse change on her professional career. Thus, the transfer seems to lend credence to plaintiffs position that similarly treated employees were treated better and that her protests about the CAP were a motivating and impermissible factor for her transfer. Owen v. Thermatool Corp., 155 F.3d 137, 139 (2d Cir. 1998); DeCinctio v. Westchester County Med Ctr., 821 F.2d 111, 115 (2d Cir. 1987). At the very least, plaintiff has demonstrated a genuine issue of material fact as to whether the employer's asserted reason for the transfer was a pretext. See Pasch v. City of New York, 933 F.2d 1149, 1155 (2d Cir. 1991) (finding summary judgment should be precluded where there are questions regarding an employer's motive in the adverse employment decision).
Secondly, although seven months may have elapsed from the time of plaintiffs speech and her subsequent reassignment, I find that fact alone insufficient to erase the causal connection that may exist between her speech and alleged retaliatory action. The Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action." Gorman-Bakos v. Cornell Co-op. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001). Indeed, one can expect that "the life expectancy of a political grudge [can not be] established as a matter of law with such finite precision as Defendants suggest." Benedict v. Town of Newburgh Town Bd, 125 F. Supp.2d 675. 678 (S.D.N.Y. 2000). I find that the period between the alleged retaliatory action and protected activity to be sufficiently close in time that a jury could reasonably infer that the defendants were simply biding their time to take advantage of circumstances as a pretext to transfer plaintiff to a less favorable position in retaliation for attempting to arouse awareness of and to protest the procedure used to approve the CAP. See, e.g., Gorman-Bakos, 252 F.3d at 554-55 (citing numerous cases finding causal connection between alleged retaliation and pretext after several months elapsed).
III. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is DENIED.