Kennedy v. Bethpage Union Free School District ( 2023 )

22-447-cv
Kennedy v. Bethpage Union Free School District
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 6th day of February, two thousand twenty-three.
PRESENT: JOSÉ A. CABRANES,
GERARD E. LYNCH,
BETH ROBINSON,
Circuit Judges.
CHRISTINE KENNEDY,
Plaintiff-Appellant, 22-447-cv
v.
BETHPAGE UNION FREE SCHOOL DISTRICT,
Defendant-Appellee,
THOMAS KENNY, DIRECTOR OF GUIDANCE,
MICHAEL SPENCE, PRINCIPAL, CAROLINE E.
LAVELLE, ASST. SUPERINTENDENT, TERRENCE
CLARK, FORMER SUPERINTENDENT, DAVID
SCHNEIDER, SUPERINTENDENT,
Defendants.
FOR PLAINTIFF-APPELLANT: VESSELIN MITEV, Mitev Law Firm, PC,
Stony Brook, NY.
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FOR DEFENDANT-APPELLEE: CHELSEA WEISBORD, Sokoloff Stern LLP,
Carle Place, NY.
Appeal from a memorandum and order dismissing, with prejudice, the Second Amended
Complaint of Plaintiff-Appellant, Christine Kennedy, entered on February 9, 2022, in the United
States District Court for the Eastern District of New York. (Pamela K. Chen, District Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Plaintiff-Appellant Christine Kennedy (“Kennedy”), a school social worker, appeals from a
memorandum and order, entered on February 8, 2022, granting the motion to dismiss the Second
Amended Complaint (“SAC”) filed by her employer, Defendant-Appellee Bethpage Union Free
School District (the “District”). The District Court determined that Kennedy could not maintain
her First Amendment or due process claims against the District under 42 U.S.C. § 1983 because the
SAC failed to sufficiently allege liability under Monell v. Department of Social Services against the District
in connection with its allegedly adverse employment actions—including an involuntary transfer of
Kennedy within the District. 436 U.S. 658 (1978). Because the District was the sole defendant
named in the SAC and the District Court found that Kennedy had failed to plead facts sufficient to
establish Monell liability, the Court did not “address the sufficiency of Plaintiff’s amended First
Amendment and due process claims.” Spec. App’x 5. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), accepting all factual allegations in the complaint as true and drawing all
reasonable inferences in the plaintiff’s favor. See Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset
Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).
With respect to Plaintiff’s First Amendment claims based on alleged suppression of speech
or retaliation for her engaging in protected activity, we affirm the District Court’s dismissal on the
ground that Plaintiff failed to show either a policy or custom under Monell. The pertinent
allegations in the SAC were conclusory and insufficient. See, e.g., SAC ¶ 108 (“Each of the aforesaid
acts or omissions on behalf of the District were undertaken pursuant to a policy or custom of the
District, enacted by and carried out by Schneider, as Superintendent, with the tacit approval and
authority of the Board of Education and carried out via his direct reports . . . .”); Id. at ¶ 125
(“Plaintiff was advised that the policy [requiring District approval before she spoke at PTA
meetings] was directed solely at her and was done so at the direction of Mr. Schneider with the
knowledge, condolence, and approval of the District.”). Accordingly, the SAC failed to sufficiently
plead Monell liability against the District related to any alleged First Amendment harm arising from
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either a suppression of speech concerning the youth mental health crisis harm or retaliation for
Plaintiff engaging in a protected workplace activity. The District Court therefore correctly dismissed
these claims on Monell grounds. 1
Although the District Court also dismissed Plaintiff’s due process claim on Monell grounds,
we affirm the dismissal on an alternative basis: Plaintiff failed to articulate a constitutionally
protected property interest necessary for her due process claim. See Cox v. Onondaga County Sheriff’s
Dep’t, 760 F.3d 139, 145 (2d Cir. 2014) (“We may . . . affirm on any ground with support in the
record.”). The SAC alleges that “[a]t all relevant times, Plaintiff had property interests in her
working as a High School Social Worker, with the SADD club, the PAL program, and the benefits
and interests that arose out of the same.” SAC ¶ 135. Nowhere, however, does Plaintiff even
attempt to identify the source of these asserted property interests, and her allegation amounts to a
conclusory legal assertion rather than an allegation of fact that supports her claim. See Ciambriello v.
County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002) (“Property interests are not created by the
Constitution; rather, ‘they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law-rules or understandings that
secure certain benefits and that support claims of entitlement to those benefits.’” (quoting Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972))).
Plaintiff’s other professed property interests fare no better. Although she is correct that
“due process protects the freedom to engage in any of the common occupations of life,” Donato v.
Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 632 (2d Cir. 1996) (cleaned up), that protection is
triggered only “when a plaintiff is completely prohibited from engaging in his or her chosen
profession,” Hu v. City of New York, 927 F.3d 81, 102 (2d Cir. 2019) (cleaned up). That did not occur
here; Kennedy was merely moved from her preferred social worker position to another social
worker position she desired less. Similarly, although Kennedy claims her reputation suffered after
her transfer, reputational loss does not implicate the Fourteenth Amendment unless “that loss is
coupled with the deprivation of a more tangible interest, such as government employment.”
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To the extent Plaintiff’s bid for municipal liability relies upon the so-called final policymaker
strain of Monell liability, it falls short because Plaintiff has failed to plead any non-conclusory
allegations that any person or entity vested with final policymaking authority played any role in the
alleged First Amendment violations in this case. Direct involvement by the Board is not alleged, and
although Schneider is implicated in the SAC, Plaintiff has failed to show that he had been delegated
the authority to make final policy in the relevant areas. See Agosto v. New York City Dep’t of Educ., 982
F.3d 86, 101 (2d Cir. 2020) (“This court has explained that even when the official is the apex of a
bureaucracy, that merely makes the decision ‘final’ but does not forge a link between ‘finality’ and
‘policy.’” (cleaned up)).
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Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004). Once again, nothing of the sort is alleged
here.
Kennedy could have added allegations to support her due process claim when she filed an
amended complaint in response to the District Court’s specific invitation to do so, and could have
subsequently moved for leave to amend a second time. She did not do so in the District Court, and
her request to this Court is not properly made for the first time on appeal. See Kosovich v. Metro
Homes, LLC, 405 F. App’x 540, 542 (2d Cir. 2010) (citing In re Nortel Networks Corp. Sec. Litig., 539
F.3d 129, 132 (2d Cir. 2008)).
CONCLUSION
For the foregoing reasons, we AFFIRM the February 9, 2022 judgment of the District
Court granting Bethpage Union Free School District’s motion to dismiss the Second Amended
Complaint with prejudice.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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