Massaro v Department of Educ. of the City of N.Y.
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Massaro v Department of Educ. of the City of N.Y. 2013 NY Slip Op 31011(U) May 7, 2013 Supreme Court, New York County Docket Number: 114214/11 Judge: Anil C. Singh Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 511012013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY L PRESENT: WON, AML C SWGH . SmoMlRT- PART 61 Justice INDEX NO. MOTION DATE DEPT OF EDUCATION OF THE CIW , SEQUENCE NUMBER : 002 ! - DISMISS Y The following papem, numbered I to ll Notice of MotionlOrderto Show Cause Answering Affidavits - ,were read an this motion tolfor -Affidavits - Exhlbits F 2 e P Exhibits DECIDE0 IN ACCORDAWE W H K ACWWANYWHIFP-IPYYIIW v) \ LLI e f5 LL K IN W . IN W . IW s ) . Replying Affidavits W w MOTION SEQ. NO. .. ' FILED [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 61 X - - - - - - - - l - - - - - - - l l _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ YVONE HANRATTY MASSARO, 1 Plaintiff, -against- Index No. 114214/11 THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ANTHONY LODICO individually and + as p r i n c i p a l on behalf of the NYC DOE and SPY KONTARINIS, i n d i v i d u a l l y as assistant principal on b e h a l f m u the NYC DOE, 4 / Defendants. Defendants New York City Department of Education (DOE), I ; ! Anthony Lodico, and Spy Kontarinis move, pursuant to CPLR 3211(a) (21, (5), (7) and ( 6 ) , for .a judgment dismissing the second amended complaint (Complaint). Plaintiff Yvone Hanratty Massaro is a tenured art teacher at Edward R. Murrow High School (School) in Midwood, Brooklyn. From 1993 until the television studio in t h e School was closed, in or about June 2008, plaintiff was in charge of i t s operation. During those years, she also taught a r t . Defendants Anthony Lodico and Spy Kontarinis are, r e s p e c t i v e l y , t h e principal of the School and the assistant principal of art. I The C o m p l a i n t alleges that plaintiff has been retaliated against for having commenced a previous action, and for having given interviews, in 2 0 1 0 , to t h e New York Times, the New York 1 [* 3] Post, and other publications, and that the retaliation was also based on her age, in violation of t h e State Human Rights Law (Executive Law § 296) and the New York City Human Rights Law (Administrative Code of City of New York § 8-107). Finally, the Complaint alleges that the discriminatorily-based retaliatory harassment violated plaintiff's right to equal protection of the laws, as guaranteed by Article 1, Section 11 of t h e State constitution. In November 2008, plaintiff commenced an action in the Supreme Court, New York County, against DOE, alleging that DOE violated her rights under t h e F i r s t Amendment by retaliating against her for complaining about filthy and dangerous conditions in her art classroom. DOE removed t h e case to the Federal District Court for the Southern District of New York. By decision dat;ed June 3 , 2011, the court granted DOE'S motion f o r summary judgment. Citing Weintraub v Board of Educ. of C i t y School D i s t . of C i t y of New York ( 5 9 3 F 3 d 196, 201 [2d C i r 20101), the court noted that, in order to be constitutionally protected, the speech of a public employee must have been spoken by t h e employee as a citizen, rather than in pursuit of the employee's duties, and it must be about a matter of public concern. The court held that plaintiff's complaints were made in pursuit of h e r duties as a teacher, and that she had spoken s o l e l y about her personal dissatisfaction with her working conditions. Massaro v D e p t . of Educ. of C i t y of N e w York, 2011 WL 2207556, 2011 US Dist LEXIS 60319 (SD NY June 3 , 2011, 08 2 CiV [* 4] 10678 [LTSI [FM]. By decision dated May 31, 2012, the United States Court of Appeals f o r the Second Circuit affirmed the District Court's opinion. Massaro v D e p t . of Educ. of C i t y of New York, 481 Fed Appx 653 (2d Cir 2012). The court turns first to the question of whether that action bars t h e instant action under the principles of res judicata o r collateral estoppel. "Under t h e doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in t h e prior action.'I B a r b i e r i v Bridge Funding, 5 AD3d 414, 415 (2d Dept 2004). ll[Olnce claim is brought to a final conclusion, all other a claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy," Anderson v N e w Yark C i t y D e p t . of Educ., 93 AD3d 538, 538 (1st Dept 20121, quoting O'Brien v C i t y of Syracuse, 54 NY2d 353, 357 (1981). Although much of t h e Complaint repeats t h e claim i n plaintiff's first action, that Lodico terminated the television studio elective in retaliation against plaintiff's complaints about her'claasroorn, plaintiff could not have litigated, in that action, h e r claims that she was' retaliated against because she commenced the first action and because she gave interviews to the press. At t h e time of the first action, those alleged events had not yet occurred. At the v e r y l e a s t , retaliation against h e r f o r bringing t h e first 'lawsuit was not a transaction out of which a ,cause of action was 3 [* 5] or could have been raised in the first action. Relying principally on Joshua A . Becker & A s s o c . v S t a t e of New Yark (79 AD2d 5 9 9 [2d Dept 1980]), defendants contend, I nonetheless, that neither a different l e g a l theory (plaintiff now alleges that she was retaliated against, in part, because of her age), nor a longer time period, can protect plaintiff's claims. In Joshua A. Becker & ASSOC, the plaintiff had previously sued for breach of contract, and the court dismissed the complaint on the grounds that the New York State Comptroller did not approve the contract at issue. In the second action, nothing was alleged to have changed, o t h e r than the incurring of further damages, Here, by contrast, plaintiff is alleging retaliation an t h e basis of events that had not occurred at t h e time of t h e first action. Thus, plaintiff's current claim of retaliation does not arise out of the transactions that gave rise to h e r claim in the prior action. Collateral estoppel bars a party from Ilrelitigating . . . an issue clearly raised in a prior action o r proceeding and decided against that p a r t y . . . . I t 500 (1984). Ryan v New York T e l . Co,, 6 2 NY2d 494, In order for collateral estoppel to apply, the identical issue must have been litigated and necessarily decided in a p r i o r action and be decisive in the subsequent action; and t h e party to be barred from relitigating must have had a f u l l and fair opportunity to litigate the issue in t h e prior action. Kaufman v E l i Lilly & Co., 6 5 NY2d 449, 4 5 5 (1985). Defendants' limited argument on this score is that plaintiff is estopped from 4 [* 6] relitigating her contention that defendants retaliated against her because of her complaints about the condition of h e r a r t room, a contention that she does n o t s e e k to relitigate here. Accordingly, the Complaint is not barred by collateral estoppel. However, for the reaaons that follow, plaintiff fails to state a cause of action. Plaintiff has attached copies of the articles in the New York Times and the New York Post as exhibit A to her affidavit, and she argues that, because she made the statements that are reported in those articles publicly to newspapers, rather than privately within the School, those statements are constitutionally protected. The Times article discusses the closing of the television studio at the School in t h e context of the School's difficulty in maintaining elective courses in a time of budget cuts, and in the context of the increasing rarity of functioning television studios i n New York City high schools. The article notes that, in addition to budgetary problems at the School, I l [ t ] h e r e were also personal tensions. Ms. Massarols relationship with her supervisors soured after t h e 2004 retirement of the [S]chooltsfounding principal . . . . In 2005, s h e claimed she had gotten scabies from a dirty art room infested with rodents,II Maasaro affidavit, exhibit A, at 2. The article also notes that plaintiff had filed a lawsuit Itclaimingthat the closing of the studio was an example of a campaign of harassment against h e r , along with assigning her packed classes with high percentages of special education students." Id. The Post article quotes plaintiff as saying l t [ ~ l e l r e moving away from our roots. They 5 [* 7] are not offering high-tech television c o u r s e s , they don't have Massaro advanced courses in digital filmmaking or video.Il affidavit, exhibit A at (unnumbered) 3 . The Post article then reports that plaintiff filed a lawsuit Ifchargingt h a t the closing of t h e studio is part of a harassment campaign against h e r . " As t h e Id. Times article makes clear, although the closing of the television studio at the School was a matter of public concern, plaintiff spoke of it almost exclusively a6 a personal matter. According to plaintiff, the importance of t h e closing of the studio was that lit was a part of t h e campaign of harassment Her statements to the press that the School directed at her. voiced that private grievance almost exclusively, t o t h e exclusion of any statements of wider concern. Accordingly, they , a r e not constitutionally protected speech. See Connick v Myers, 461 US 138, 146 (1983); L e w i s v Cowen, 165 F3d.154, 163-164 (2d Cir 1999). N o r was h e r first action -- a lawsuit brought s o l e l y to advance a private concern - - constitutionally protected as free speech. McNaughton v C i t y of New York, 234 AD2d 83, 84 (1st Dept 1996), citing E z e k w o v N e w York C i t y Health 940 F2d 775, 781 (2d Cir 1991). & Hosps. Corp. , Accordingly, she has no viable claim that she was retaliated against either for h e r statements t o the press, or f o r her first action. Northey, -AD3d-, R u o t o l o v Mussman & 2013'NY Slip Op 02678 (1st Dept 2013) ; McNaughton v C i t y of N e w York, 234 AD2d 8 3 . As plaintiff argues, the protection of free speech provided by Article 1, Section 8 of the State constitution is broader in 6 [* 8] .- . . certain respects than that provided by the F i r s t Amendment. See e . g . People ex rel. Arcaxa v Cloud Books, 6 8 NY2d 5 5 3 , 5 5 8 (1986); T i m e s Sq. Books .v C i t y of Rochester, 223 AD2d 270, 273276 (4th Dept 1996). However, plaintiff has adduced no case and this court knows of none -- -- in which a court has held that, in relation to a claim of retaliation, speech that either is m a u in pursuit of a public employee's duties, or fails to address a matter of public concern, is protected under the State constitutional guaranty of free expression. Plaintiff's claim, that she was discriminated against on t h e basis of her age, borders on the frivolous. The Complaint alleges that: (1) younger teachers in t h e art department "have t h e best schedules, students, access to computers, printers, books, materials, suppliesll; (2) [t] hey often miss departmental rneeting[sJ If; and (3) [m]any members of t h e staff have asked [ p l l a i n t i f f when she is going to r e t i r e . " Complaint, 7 In 80. addition, t h e Complaint alleges that plaintiff was harassed at work in ways that Ilyounger teachers" were not. 86, 97, 99-102. Complaint, ill 85- However, the Complaint does not divulge the ages of those "younger teachers. It is elementary t h a t , when deciding a motion to dismiss for failure to s t a t e a claim, the court must assume that t h e facts alleged in the complaint are t r u e and Itcaccord plaintiffs the benefit of every possible favorable inference.Il' Nonnon v C i t y of New Y a k , 9 NY3d 825, 827 (2007), quoting Leon v Martinez, 8 4 NY2d 83, 87-88 (1994). The court is not required, however, to 7 [* 9] assume facts that are not alleged. Plaintiff was 51 years old a t t h e t i m e she commenced t h i s action. For all the court can glean from the Complaint, the '* "younger" teachers, to whom plaintiff compares herself, may all have been no more t h a n t w o or three years younger than her. The complaint fails to allege a single fact to support the conclusion that any of the work conditions about which plaintiff complains were imposed an h e r because of her age. Finally, to the e x t e n t that plaintiff's equal protection claim may differ from her age discrimination claim, it raises a "class of one'' claim of discriminatory treatment. See generally Village of Willowbrook v Olech, 528 US 5 6 2 , 564 (2000). The United States Supreme Court has h e l d , however, t h a t a "class of one" claim is not available to public employees who complain of discrimination in their employment. Enquist v Oregon D e p t . of A g r i c . , 553 US 591, 598 (2008). Moreover, plaintiff does not oppose the'dismissal of her equal protection claim. Accordingly, it is ORDERED that defendants' motion to dismiss the complaint is 'granted, and the complaint is dismissed without costs; and it is further ORDERED that the C l e r k is directed to e n t e r judgment accordingly. Dated : *. c
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