Beate Bernheim v. Jeffrey Litt , 79 F.3d 318 ( 1996 )

JACOBS, J., concurs in part B of the opinion, and concurs in a separate opinion as to part C.

SPATT, District Judge.

In this action, brought pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the Constitution, the plaintiff-appellant Beate Bernheim (“Bernheim”) appeals from a judgment of the United States District Court for the Southern District of New York, which was entered on May 18, 1995, dismissing her complaint against the defendant-appellee Jeffrey Litt (“Litt”) in its entirety for failure to state a cognizable federal claim. Bernheim’s federal claims were dismissed with prejudice, and her state claims were dismissed without prejudice. On appeal, Bemheim argues that her complaint sufficiently alleged actionable claims under 42 U.S.C. § 1983. For the reasons set forth below, we find that only one of her Section 1983 claims sets forth a valid cause of action.

BACKGROUND

Bemheim is an elementary school teacher in Community School 67 (“CS 67”) in Bronx County, New York. She commenced this action pursuant to 42 U.S.C. § 1983, in New York Supreme Court, Westchester County, on June 22,1994. Her complaint alleges that the school’s principal, Jeffrey Litt, discriminated against her based on her race and that he violated her First Amendment right to free speech. On July 22, 1994 the defendant removed the action to federal court. Bem-heim moved to amend the complaint and Litt cross-moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6). Bemheim subsequently withdrew her motion, then moved to file a second amended complaint and sought a jury trial. The district court granted Bernheim’s motion to amend and considered Litt’s motion to dismiss to be addressed to the second amended complaint. In dismissing the complaint, the district court ruled that the disputes in this case arose out of employment relationships of a New York City school teacher, did not allege a constitutional violation, and should be addressed through employee grievance procedures, citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

On June 13, 1995, Bernheim filed a timely notice of appeal. In an order dated June 16, 1995, Judge Brieant stated that Bernheim’s pending appeal prevented him from amending the dismissal order, in the interest of justice, to remand the state claims to the Supreme Court of the State of New York, where the action was originally filed.

DISCUSSION

A. The Rule 12(b)(6) standard

We review de novo the district court’s dismissal for failure to state a claim. Rent Stabilization Ass’n v. Dinkins, 5 F.3d 591, 593 (2d Cir.1993). A complaint may not be dismissed under Rule 12(b)(6) unless it “ ‘appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In reviewing a Rule 12(b)(6) motion, this Court must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, - U.S. -, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994). The review of such a motion is limited, and “ ‘[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)(quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (citing Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686). Furthermore, the “ ‘standard is applied with even greater force where the plaintiff alleges civil rights violations....’” Id. (quoting Hernandez, supra, 18 F.3d at 136).

As the Supreme Court has stated,

[b]y the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.

Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). Bemheim alleges that Litt, a public school official acting under color of state law, deprived her of certain rights guaranteed by the Constitution. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

Berhheim’s amended complaint alleges two federal causes of action and one state law cause of action against Litt. The first cause of action alleges that Litt discriminated against Bemheim on the basis of her race and in violation of her constitutional rights to procedural due process and equal protection. The second cause of action alleges violations of state law rights. The third cause of action alleges that Litt retaliated against Bemheim for exercising her First Amendment right to free speech.

B. The due process and equal protection claims

The amended complaint alleges that prior to January 1, 1992, Litt entered into an arrangement with an organization known as Core Knowledge Foundation (“Core”), and offered to introduce the curriculum advocated by Core to CS 67. Bernheim alleges that Litt created a “Core Knowledge Committee” and designated Bernheim as its co-chairperson.

The amended complaint further alleges that in March 1992, Litt selected Bemheim to represent CS 67 at a convention of the American Federation of Teachers. Bem-heim was scheduled to speak at the convention about the Core curriculum program. Bemheim, who is white, alleges that prior to the convention the Core Knowledge Foundation requested of Litt by means of a written memoranda, that Bemheim be removed from the speakers’ list and that a minority teacher be sent in her stead. She further alleges that Litt, who is also white, then designated a minority teacher to speak at the convention. Bemheim concedes, however, that the “Core Knowledge Committee” of CS 67 overruled Litt and decided against sending a representative to the convention.

According to the amended complaint, during the period from March 1992 until October 1994, Litt discriminated against Bernheim based on her race and retaliated against her because she complained about the racial discrimination. The amended complaint alleges that Litt retaliated against Bemheim by doing the following acts: removing Bemheim from the position of staff developer and then appointing a white woman to that position; appointing another white woman as the library teacher, a position that Bemheim previously held; transferring Bemheim from her out-of-classroom library position to a sixth-grade classroom teaching position and requiring her to serve lunchroom duty; reducing her preparation periods from two to one per day; assigning her to a fifth floor classroom knowing that she had difficulty climbing stairs because of physical disabilities, which included a herniated disc, a bulging disc, a fractured right knee and a loose body in her left knee; failing to properly process insurance forms in connection with a car accident involving Bernheim; and removing a lock and her belongings from her storage areas.

As stated above, to properly set forth an actionable claim for deprivation of procedural due process under 42 U.S.C. § 1983, a plaintiff must assert that the defendant deprived her of a right, privilege or immunity secured by the Constitution or the laws of the United States. Gomez, supra, 446 U.S. at 640, 100 S.Ct. at 1923-24; Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604-05, 26 L.Ed.2d 142 (1970). This Bemheim does not do. Bemheim did not have a right to deliver a speech to the American Federation of Teachers Convention, remain in the position of library teacher, be appointed staff developer, have two periods per day to prepare for her classes or to keep her belongings in a particular place area. These are features of Bernheim’s working conditions, which are not protected by the Constitution.

To state a cause of action under the due process clause, a plaintiff must show that she has a property interest, created by state law, in the employment or the benefit that was removed. See Castro v. New York City Bd. Of Educ., 777 F.Supp. 1113, 1116-17 (S.D.N.Y.), aff'd, 923 F.2d 844 (2d Cir.1990), cert. denied, 498 U.S. 1099, 111 S.Ct. 992, 112 L.Ed.2d 1076 (1991). The New York Court of Appeals has stated that the concept of tenure in the teaching profession “does not entitle a teacher to a specific class or proscribe assignment to proper duties of a teacher other than classroom teaching of a specific subject.” Adlerstein v. Board of Educ. of New York City, 64 N.Y.2d 90, 99, 485 N.Y.S.2d 1, 5, 474 N.E.2d 209, 212-13 (1984). Furthermore, where the complained-of conduct concerns matters that are within an official’s discretion, entitlement to that benefit arises only when the discretion is so restricted as to virtually assure conferral of the benefit. See Gagliardi v. Village of Pawling, 18 F.3d 188, 192 (2d Cir.1994) (citing Brady v. Town of Colchester, 863 F.2d 205, 213 (2d Cir.1988)). Bemheim complains of acts that are alterations of working conditions that cannot provide a basis for a constitutional claim and, if in contravention of Bemheim’s contractual rights, may be redressed through employee grievance procedures and an Article 78 proceeding in the state court. See Giglio v. Dunn, 732 F.2d 1133 (2d Cir.) (finding that an Article 78 proceeding satisfied the due process requirement of providing a hearing at a meaningful time and in a meaningful manner), cert. denied, 469 U.S. 932, 105 S.Ct. 328, 83 L.Ed.2d 265 (1984).

The Fourteenth Amendment guarantee of equal protection is “a right to be free from invidious discrimination in statutory classifications and other governmental activity.” Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980). That right is violated when the state distinguishes between individuals based on “unreasonable, arbitrary, or capricious differences that are irrelevant to a legitimate government objective.” Castro, supra, 777 F.Supp. at 1118 (S.D.N.Y.) (citing Lehr v. Robertson, 463 U.S. 248, 265, 103 S.Ct. 2985, 2995, 77 L.Ed.2d 614 (1983)). Even accepting her allegations as trae and construing them liberally, Bernheim has not stated such a claim.

The discrimination alleged was the decision to send a minority speaker to the American Federation of Teachers convention' in Bernheim’s place. But that decision was overruled by the CS 67 Core Knowledge Committee. In the circumstances of this case, we hold that no invidious discrimination took place. The remaining harms that Bem-heim sets forth in her equal protection claim are alleged to be the product, not of discrimination, but of retaliation for her complaints of discrimination. Although claims of retaliation are commonly brought under the First Amendment, see infra, and may also be brought under Title VII (claims of retaliation for complaints about racial discrimination are cognizable under 42 U.S.C. § 2000e-3(a)), we know of no court that has recognized a claim under the equal protection clause for retaliation following complaints of racial discrimination. Given the availability of Title VII, which Bemheim has chosen not to invoke, we see no reason to break new constitutional ground in this case. Cf. Ratliff v. DeKalb County, 62 F.3d 338, 340-41 (11th Cir.1995)(no clearly recognized right to be free from retaliation exists under the equal protection clause); Gray v. Lacke, 885 F.2d 399, 414 (7th Cir.1989)(claim for retaliation must be brought under Title VII, not under the equal protection clause), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476, 108 L.Ed.2d 613 (1990). Accordingly, Bernheim’s equal protection claim cannot stand.

Because the amended complaint does not state an actionable claim alleging a violation of the equal protection clause or a deprivation of procedural due process, the district court properly dismissed Bemheim’s first cause of action.

C. The First Amendment claim

The amended complaint sets forth additional facts in support of Bemheim’s First Amendment claim. In particular, the amended complaint alleges that Litt widely publicized numerous misrepresentations regarding the achievements of students at CS 67 and also knowingly published false statistics concerning test scores of the students for the purpose of enhancing his own reputation and that of the school. According to the amended complaint, Litt changed the name of the school to Mohegan School, making it difficult for parents, members of the community and educators to discover and verify that the false claims made by Litt were different than the official test results and actual achievements of the students. Bernheim alleges that commencing in June 1994, she reported Litt’s misrepresentations regarding the false test scores and student achievements to various authorities including the Superintendent of Schools, members of the School Board and the Chancellor of the New York City schools. The amended complaint alleges that the Bronx Commission on the Integrity of School Officials wrote to the plaintiff requesting that she contact the agency with regard to the false information Litt was allegedly circulating. In addition, Bernheim alleges that one of the deputy mayors of New York City wrote to her to inform her that the Mayor’s office was reviewing the issues that she raised. Further, Bernheim detañed Litt’s alleged misrepresentations in the complaint that she filed in Westchester County Supreme Court in June, 1994, and she sent a copy of the original complaint to Litt’s supervisors.

Bernheim alleges that Litt retaliated against her for her speaking out as to the alleged false student information, with essentially the same acts she complains about in her claim under the Fourteenth Amendment, namely, removing her from the positions of staff developer and librarian; assigning her to classroom work; reducing her preparation periods from two to one; assigning her to lunchroom duty; removing her belongings from her storage area; sending negative evaluation letters criticizing her work; failing to process insurance forms; and wrongfully accusing her of absenteeism. Bernheim also alleges that in retaliation for criticizing Litt, he assigned her to a fifth floor classroom with a schedule that required frequent trips to the main floor, even though he knew that she suffered from certain physical disabilities that made it difficult for her to climb stairs, namely, a herniated disc, a bulging disc, a fractured right knee and a loose body in her left knee.

To establish a retaliation claim under Section 1983,

a plaintiff “initially [must] show that [his] conduct was protected by the first amendment,” Brady, 863 F.2d at 217, and that defendants’ conduct was motivated by or substantially caused by his exercise of free speech, Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir.1991), cert. denied, 504 U.S. 911, 112 S.Ct. 1943, 118 L.Ed.2d 548 (1992)....

Gagliardi, supra, 18 F.3d at 194 (alterations in original).

A public employee’s right to freedom of speech is not absolute. See e.g., Waters v. Churchill, 511 U.S. -, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), cert. denied, - U.S. -, 116 S.Ct. 173, 133 L.Ed.2d 114 (1995). When a dispute arises relating to the First Amendment rights of a public employee, the courts must balance the employee’s right to comment on matters of public concern with the government’s interest as an employer to effectively and efficiently provide public services. Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). However, when a public employee speaks as a citizen on a matter of public concern, that speech is entitled to First Amendment protection. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

Some of Bemheim’s speech related to the conditions of her employment at CS 67 and her rejection as a speaker for the Core program at the AFT convention, which are matters of personal interest. Judge Brieant correctly concluded that these statements concern a dispute between employer and employee and as such do not rise to the level of a constitutional tort.

[W]hen 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 a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior. Cf. Bishop v. Wood, supra, 426 U.S., at 349-350, 96 S.Ct., at 2079-2080. Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee griev-anees not afforded by the First Amendment to those who do not work for the State.

Connick, supra, 461 U.S. at 147, 103 S.Ct. at 1690.

However, other statements alleged by Bernheim to have elicited retaliation from Litt concern an entirely different subject matter. In this regard, the facts alleged by Bernheim differ from those in Connick, supra, 461 U.S. at 154, 103 S.Ct. at 1693-94, where the plaintiff employee’s alleged protected speech directly concerned an office policy that was the basis of a prior dispute between the employee' and the employer. Bernheim’s statements regarding the quality of education provided by the public school as measured by achievement test scores and their year-to-year improvement or deterioration on a schoolwide basis may reasonably be considered a matter of public concern. These are issues of serious interest to the community and Bernheim should be able to speak freely about them without fear of retaliation. See id., 461 U.S. at 149, 103 S.Ct. at 1691.

Clearly, Bernheim may not base her claim of retaliation upon complained-of acts that predated her speaking out about Litt’s alleged misrepresentations. See Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994). Apparently, the plaintiff’s first reassignment, from staff developer to library teacher, occurred prior to the plaintiffs comments regarding Litt’s alleged misrepresentations as to the achievements of CS 67 students. However, the amended complaint is otherwise chronologically sound, with other alleged retaliatory acts set forth as occurring after the plaintiff made the comments in question. The plaintiff’s amended pleading sets forth the necessary nexus between her statements concerning a matter of public concern and the defendant’s subsequent alleged retaliatory acts. See Gagliardi, supra, 18 F.3d at 195. The facts alleged by Bern-heim, if proven, could support an inference that her public statements regarding misrepresentations by Litt about the CS 67 student test scores and other achievements were a substantial motivating factor in the adverse employment actions taken against her. See Blum, supra, 18 F.3d at 1010 (citing Ezekwo v. NYC Health and Hosp. Corp., 940 F.2d 775, 780-81 (2d Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 657, 116 L.Ed.2d 749 (1991)).

The defendant argues that even if the complained-of acts are causally related to the statements Bernheim made, she fails to allege any legally cognizable harm. He asserts that absent from the factual scenario set forth in the complaint is any allegation that Bernheim was dismissed from her employment. However, this is not necessarily fatal to her claim. The plaintiff does allege that her reputation, opportunities for advancement and earning potential have been impaired by the acts of the defendant. See Amended Compl. ¶¶ 86, 92. The Court notes that the amended complaint also claims that Litt told a parent of one of Bernheim’s students that a statement Bernheim made regarding the availability of textbooks was a lie. See Amended Compl. ¶ 88. In addition, Bernheim alleges that her reassignment to the position of classroom teacher, after she held out-of-classroom positions for five years, was a demotion. Amended Compl. ¶ 78. In that regard, Bernheim further claims that she had nineteen years experience teaching in the public schools, eleven and one-half of which were spent at CS 67, and that her professional evaluations were consistently outstanding and were never negative. See Amended Compl. ¶¶ 78, 85. Bernheim also contends that she was compelled to climb five flights of stairs numerous times a day despite the fact that she had a herniated disc, a bulging disc, a fractured right knee and a loose body in her left knee. Amended Compl. ¶ 80. Assuming these facts to be true, as the Court must when reviewing a district court’s dismissal of a complaint for failure to state a claim under Rule 12(b)(6), actionable harm may be perceived, which, if proven, could entitle Bernheim to Section 1983 relief.

The amended complaint also alleges that as a result of her public statements against Litt, Bernheim has endured a campaign of harassment, “which caused her great worry and unhappiness.” Amended Compl ¶ 92. “It is a basic principle of tort law in general, and of civil rights law in particular, that compensable injuries may include not only monetary losses such as out-of-pocket expenses but also injuries such as ‘personal humiliation’ and ‘mental anguish.’” Henry v. Gross, 803 F.2d 757, 768 (2d Cir.1986)(quoting Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S.Ct. 2537, 2543, 91 L.Ed.2d 249 (1986)). The plaintiff’s claim of “great worry and unhappiness” could reasonably be read as a claim for emotional distress, a legally recognized and compensable harm.

In addition, where a constitutional deprivation is alleged, the question arises as to the plaintiffs entitlement to nominal damages, even in the absence of facts supporting an award of compensatory damages. “In an action brought pursuant to Section 1983, ‘even when a litigant fails to prove actual compensable injury, he is entitled to an award of nominal damages upon proof of violation of a substantive constitutional right.’ ” Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir.1994) (quoting Smith v. Coughlin, 748 F.2d 783, 789 (2d Cir.1984), which cites Carey v. Piphus, 435 U.S. 247, 267, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978)). Such an award “is not discretionary where a substantive constitutional right has been violated....” Gibeau, supra, 18 F.3d at 110-11.

We agree with the concurring opinion that a number of Bemheim’s claimed damages and acts of retaliation, treated separately, would be trivial and do not rise to the level of a constitutional violation. However, in our view, it would be burdensome to have the district court “prune” a complaint at the pleading stage by making a determination with regard to each allegation within a cause of action that is legally cognizable when viewed in its totality. This balancing process and assessment and elimination of non-constitutional claims is more appropriately undertaken by the district court at a later stage of the proceedings, namely upon review of motions pursuant to Rule 56 or Rule 50. We believe that such an analysis is not required within the context of a motion to dismiss for failure to state a cause of action under Rule 12(b)(6). In addition, the integrity of the complaint as a whole with respect to the First Amendment claim should be preserved at this early phase of the action.

Accepting the allegations of the complaint as trae and construing them favorably to the pleader, we find Bernheim has stated a legally cognizable claim under Section 1983 and the First Amendment. So saying, we give no opinion as to the merits of this claim or its likelihood for success, but merely find that the complaint itself states a cause of action upon which relief may be granted. Accordingly, that portion of the district court’s judgment that dismissed the third cause of action in the amended complaint, which claims a violation of the plaintiffs First Amendment rights, is reversed.

CONCLUSION

Based on the foregoing, that part of the district court’s judgment that dismissed the plaintiffs first cause of action, which alleges due process and equal protection deprivation in violation of the Fourteenth Amendment, is affirmed. The district court’s dismissal of the third cause of action, which alleges retaliation for statements protected by the First Amendment, is reversed, and that cause of action is reinstated. Finally, the plaintiffs supplemental state law claims, which were dismissed by the district court following its rejection of Bernheim’s federal claims, are reinstated.