BARROS v. MILLER

3:03CV1613(AHN).

2005 | Cited 0 times | D. Connecticut | September 30, 2005

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Andrea Barros ("Barros"), a New Haven public schoolteacher, alleges that defendants Kevin Miller ("Miller") and theNew Haven Board of Education ("BOE") unlawfully retaliatedagainst her in violation of 42 U.S.C. § 1983 for exercising herFirst Amendment rights to freedom of speech, freedom ofassociation, and freedom to petition for redress of grievances.Defendants now move for summary judgment on the grounds that (1)Barros did not suffer an adverse employment action as a result ofher speech, and (2) they cannot be held liable as a matter of lawon the basis of qualified immunity. For the following reasons,defendants' motion [dkt. #25] is granted.

BACKGROUND

Barros is a state-certified elementary public school teacher inNew Haven, Connecticut. During the 2002-2003 school year, Barroswas a third-grade teacher at Clinton Avenue Elementary School("CAS"). At that time, she had been at CAS for approximately sixyears and had occupied classroom 12 for that entire period. Miller, who had been an assistant principal atother New Haven public schools, became the school principal atCAS in the fall of 2002. Miller's mandate was to improveConnecticut Mastery Test ("CMT") scores at the school. Not longafter his arrival, Barros verbally complained to both the BOE andCity of New Haven that Miller was sexually abusing and harassingher and other female teachers and staff; was having a "publiclove affair" with a female teacher at CAS; and, along with aclose male associate at CAS, was physically abusing some of thechildren.

Miller also had concerns about Barros. In particular, helearned that Barros continued to use certain restricted textbooksat CAS. Miller considered this to be a serious violation becausethe third-grade teachers were supposed to follow a strictmandatory curriculum in order to ensure that third-graders wouldbe prepared to take the CMTs in the fourth grade. As a result,Miller decided to reassign Barros to teach fourth grade instead.

Under the collective bargaining agreement then in effectbetween the BOE and the teacher's union, a teacher could beassigned to a new grade or classroom if the assignment reflected"the best interests of the school system" and with writtennotification from the superintendent. On June 3, 2003, Millerarranged to meet with Barros to inform her of his decision toreassign her, but Barros did not attend the meeting. Miller sent her a letter instead stating that her "teaching assignment at CASfor the 2003-2004 academic year is fourth (4th) grade." Eventhough the reassignment did not affect her wages, benefits, orwork hours, Barros was not pleased about the reassignment because"the fourth grade curriculum is completely different from that ofthe third grade, so the change from third grade to fourth grade . . .[required her] to learn something completely different fromwhat she had been teaching."

A week later, on June 11, 2003, Barros sent a 23-page letter tothe director of personnel and the superintendent of schoolscomplaining about Miller. The letter contained the sameallegations that Barros had voiced earlier in the year, namelythat Miller had sexually abused and harassed female teachers andstaff; that he was involved in a public love affair with one ofthe female teachers at the school; and that he had physicallyabused some of the students.

The conflict between Barros and Miller grew worse. Inparticular, Miller decided in June 2003, to relocate Barros fromclassroom 12 to classroom 14 purportedly so that all thefourth-grade classrooms would be next to one another. However, heneglected to inform Barros of this fact. When she learned aboutthe room change one month later she called Miller and told himthat she did not want to move because she had just painted theclassroom and "had done a great deal of work on the room." Miller told Barros that he could give her "a can of paint," andthat if she did not like the arrangement "maybe [she] should justget out." Barros felt that the new classroom "was filthy anddisgusting . . . and typical of the worst of inner-cityclassrooms."

Later, Barros complained to the teacher's union president thatMiller was disposing of her personal belongings located in theclassroom. The BOE instructed Miller not to remove Barros'spersonal effects from the room. Angered by her actions, Millerstated that he knew what Barros was up to and that she had betterstop before she got herself deeper into hot water.

Around the same time, Barros filed a complaint with theConnecticut Department of Children and Families (DCF) allegingthat Miller had physically abused students. A subsequent DCFinvestigation found that Barros's allegations wereunsubstantiated. Shortly thereafter, and before the start of the2003-2004 school year, the Superintendent of Schools, ReginaldMayo ("Mayo"), transferred Barros to another New Haven publicschool. Mayo told the union president that he had transferredBarros because he considered her to be a "problem." Despite anopening in the third grade at the new school, Barros was assignedto teach fifth grade.

STANDARD

Summary judgment should be granted if the record demonstrates that there is no genuine issue as to any materialfact and that the moving party is entitled to judgment as amatter of law. See Chambers v. TRM Copy Ctrs. Corp.,43 F.3d 29, 36 (2d Cir. 1994); Fed.R.Civ.P. 56(c). The burden ofdemonstrating the absence of any genuine issue of material factrests on the moving party, see Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986), and all ambiguities and inferences that mayreasonably be drawn from the facts must be viewed in the lightmost favorable to the nonmoving party, see Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248-49 (1986). Once a party movingfor summary judgment has made a properly supported showing as tothe absence of any genuine issue as to all material facts, todefeat summary judgment the nonmoving party must come forwardwith evidence such as affidavits, deposition testimony, answersto interrogatories and admissions on file, that show there is agenuine factual issue for trial. See, e.g., Amnesty Am. v.Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002);Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18(2d Cir. 1995). A disputed issue is not created by a mereallegation in the pleadings, see Applegate v. Top Assoc.,Inc., 425 F.2d 92, 96 (2d Cir. 1970), or by surmise orconjecture, see Quinn v. Syracuse Model Neighborhood Corp.,613 F.2d 438, 445 (2d Cir. 1980). Conclusory assertions also donot create a genuine factual issue. See Delaware & Hudson RyCo. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990). Where affidavits are submitted onsummary judgment they "shall be made on personal knowledge, shallset forth such facts as would be admissible in evidence, andshall show affirmatively that the affiant is competent to testifyto the matters stated therein." Santos v. Murdock,243 F.3d 681, 683 (2d Cir. 2001) (quoting Fed.R.Civ.P. 56(e)). Thus,"as to issues on which the non-moving party bears the burden ofproof, the moving party may simply point out the absence ofevidence to support the nonmoving party's case." Nora Beverages,Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998).

DISCUSSION

Barros's § 1983 claim alleges that Miller and the BOEunlawfully retaliated against her for exercising her FirstAmendment rights to freedom of speech, freedom of association,and freedom to petition for redress of grievances, by reassigningher, first to teach fourth grade in a different classroom, andultimately, to teach fifth grade in a different school. Barrossubmits that she engaged in constitutionally protected speech by(1) verbally complaining to the BOE and the City of New Haventhat Miller was sexually harassing female school teachers andstaff, having an affair with a teacher, and abusing some of thestudents; (2) repeating those complaints in a June 2003 letter toMayo and the director of personnel; and (3) filing a July 2003complaint with DCF. She further contends that her reassignment to teach fourth grade in a different and less desirableclassroom, and then to teach fifth grade in a different schoolconstituted adverse employment actions. Defendants now move forsummary judgment on the grounds that (1) Barros's reassignmentdid not constitute an adverse employment action, and (2) thatthey are entitled to qualified immunity.

I. First Amendment Retaliation

To state a prima facie case of First Amendment retaliationunder § 1983, plaintiff must offer some tangible proof that (1)she engaged in constitutionally protected speech; (2) shesuffered an adverse employment action; and (3) the speech was asubstantial or motivating factor for the adverse employmentaction. See Burkybile v. Board of Ed., 411 F.3d 306, 313 (2dCir. 2005) (citation omitted). Because the defendants conceded atoral argument that Barros did engage in constitutionallyprotected speech, only the last two factors warrant discussion.

A. Adverse Employment Action

Defendants contend that they are entitled to summary judgmenton the retaliation claim because a jury could not find thatBarros's reassignment to teach the fourth grade in a differentclassroom and then to teach the fifth grade in a different schoolconstituted an adverse employment action.

There are no bright line rules for what type of actionconstitutes an adverse employment action. See Wanamaker v. Columbian Rope Co, 108 F.3d 462, 466 (2d Cir. 1997). Courtstypically look at whether the action had an adverse effect on aplaintiff's wages, benefits, or work hours; was more than aninconvenience or alteration of the plaintiff's jobresponsibilities, and was the type of action that is "reasonablylikely to deter" employees from engaging in protected speech.See Staff v. Pall Corp., 233 F. Supp.2d 516, 531 (S.D.N.Y.2002) ("changes in assignment or work-related duties do notordinarily constitute adverse employment actions if unaccompaniedby a decrease in salary or work hour changes") (citation andquotations omitted).

Barros concedes that the reassignment did not affect her wages,benefits, work hours, or opportunity to accrue seniority. Shealso does not dispute that she was certified to teach elementaryschool-grade children. Thus, even if teaching another grade"required her to learn something completely different," there isnothing to suggest the reassignment constituted anything morethan a mere inconvenience or an alteration of jobresponsibilities, both of which are not actionable. SeeGalabya v. New York Bd. Of Educ., 202 F.3d 636, 640 (2d Cir.2000). Moreover, although Barros states in her affidavit thatinvoluntary reassignments like hers are imposed "only when ateacher is being punished or pushed out of the school system,"this type of self-serving, factually-unsupported conclusory statement is not the type of evidence that is sufficient tocreate a triable issue of fact. See Geyer v. Lantz,No. 3:03CV1853CFD, 2005 WL 1657126, at *2 (D. Conn. 2005) ("[a]self-serving affidavit which reiterates the conclusoryallegations of the complaint in affidavit form is insufficient topreclude summary judgment") (citing Lujan v. National WildlifeFed'n, 497 U.S. 871, 888 (1990)); DeMuria v. Hawkes,No. 3:00CV1591 (AHN), 2004 WL 2216524, at *8 (D. Conn. 2004)(finding non-movant's affidavit insufficient to create a questionof fact that precluded summary judgment because it did notcontain supporting evidence that would be admissible in contentand substance at trial). Thus, because Barros has not comeforward with even a scintilla of evidence to establish thiselement of her § 1983 claim, the claim cannot survive summaryjudgment.

Further, because Barros offers no evidence to support her claimthat she suffered an adverse employment action, the court neednot consider the third element of her § 1983 claim, i.e., whetherthere was a causal nexus. Accordingly, summary judgment isgranted in favor of the defendants on Barros's First Amendmentretaliation claim.

II. Qualified Immunity as to Miller

Similarly, because a jury could not find that a constitutionalviolation occurred, the court need not consider whether Miller is entitled to qualified immunity. See Mandellv. County of Suffolk, 316 F.3d 358, 385 (2d Cir. 2003) (citingLewis v. Cowen, 165 F.3d 154, 166-67 (2d Cir. 1999)).

III. Municipal Liability

For the same reasons, the court need not, and does not,consider Barros's claim against the BOE. In other words, becauseBarros has failed to come forward with even a scintilla ofevidence establishing an essential element of her § 1983 claim,that claim against the municipal board of education must fail asa matter of law. See Looby v. City of Hartford, 152 F.Supp.2d 181, 187 (D. Conn. 2001) (quotations and citationsomitted).

CONCLUSION

For the foregoing reasons, defendants' motion for summaryjudgment [dkt. # 25] is granted.

SO ORDERED.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Andrea Barros ("Barros"), a New Haven public schoolteacher, alleges that defendants Kevin Miller ("Miller") and theNew Haven Board of Education ("BOE") unlawfully retaliatedagainst her in violation of 42 U.S.C. § 1983 for exercising herFirst Amendment rights to freedom of speech, freedom ofassociation, and freedom to petition for redress of grievances.Defendants now move for summary judgment on the grounds that (1)Barros did not suffer an adverse employment action as a result ofher speech, and (2) they cannot be held liable as a matter of lawon the basis of qualified immunity. For the following reasons,defendants' motion [dkt. #25] is granted.

BACKGROUND

Barros is a state-certified elementary public school teacher inNew Haven, Connecticut. During the 2002-2003 school year, Barroswas a third-grade teacher at Clinton Avenue Elementary School("CAS"). At that time, she had been at CAS for approximately sixyears and had occupied classroom 12 for that entire period. Miller, who had been an assistant principal atother New Haven public schools, became the school principal atCAS in the fall of 2002. Miller's mandate was to improveConnecticut Mastery Test ("CMT") scores at the school. Not longafter his arrival, Barros verbally complained to both the BOE andCity of New Haven that Miller was sexually abusing and harassingher and other female teachers and staff; was having a "publiclove affair" with a female teacher at CAS; and, along with aclose male associate at CAS, was physically abusing some of thechildren.

Miller also had concerns about Barros. In particular, helearned that Barros continued to use certain restricted textbooksat CAS. Miller considered this to be a serious violation becausethe third-grade teachers were supposed to follow a strictmandatory curriculum in order to ensure that third-graders wouldbe prepared to take the CMTs in the fourth grade. As a result,Miller decided to reassign Barros to teach fourth grade instead.

Under the collective bargaining agreement then in effectbetween the BOE and the teacher's union, a teacher could beassigned to a new grade or classroom if the assignment reflected"the best interests of the school system" and with writtennotification from the superintendent. On June 3, 2003, Millerarranged to meet with Barros to inform her of his decision toreassign her, but Barros did not attend the meeting. Miller sent her a letter instead stating that her "teaching assignment at CASfor the 2003-2004 academic year is fourth (4th) grade." Eventhough the reassignment did not affect her wages, benefits, orwork hours, Barros was not pleased about the reassignment because"the fourth grade curriculum is completely different from that ofthe third grade, so the change from third grade to fourth grade . . .[required her] to learn something completely different fromwhat she had been teaching."

A week later, on June 11, 2003, Barros sent a 23-page letter tothe director of personnel and the superintendent of schoolscomplaining about Miller. The letter contained the sameallegations that Barros had voiced earlier in the year, namelythat Miller had sexually abused and harassed female teachers andstaff; that he was involved in a public love affair with one ofthe female teachers at the school; and that he had physicallyabused some of the students.

The conflict between Barros and Miller grew worse. Inparticular, Miller decided in June 2003, to relocate Barros fromclassroom 12 to classroom 14 purportedly so that all thefourth-grade classrooms would be next to one another. However, heneglected to inform Barros of this fact. When she learned aboutthe room change one month later she called Miller and told himthat she did not want to move because she had just painted theclassroom and "had done a great deal of work on the room." Miller told Barros that he could give her "a can of paint," andthat if she did not like the arrangement "maybe [she] should justget out." Barros felt that the new classroom "was filthy anddisgusting . . . and typical of the worst of inner-cityclassrooms."

Later, Barros complained to the teacher's union president thatMiller was disposing of her personal belongings located in theclassroom. The BOE instructed Miller not to remove Barros'spersonal effects from the room. Angered by her actions, Millerstated that he knew what Barros was up to and that she had betterstop before she got herself deeper into hot water.

Around the same time, Barros filed a complaint with theConnecticut Department of Children and Families (DCF) allegingthat Miller had physically abused students. A subsequent DCFinvestigation found that Barros's allegations wereunsubstantiated. Shortly thereafter, and before the start of the2003-2004 school year, the Superintendent of Schools, ReginaldMayo ("Mayo"), transferred Barros to another New Haven publicschool. Mayo told the union president that he had transferredBarros because he considered her to be a "problem." Despite anopening in the third grade at the new school, Barros was assignedto teach fifth grade.

STANDARD

Summary judgment should be granted if the record demonstrates that there is no genuine issue as to any materialfact and that the moving party is entitled to judgment as amatter of law. See Chambers v. TRM Copy Ctrs. Corp.,43 F.3d 29, 36 (2d Cir. 1994); Fed.R.Civ.P. 56(c). The burden ofdemonstrating the absence of any genuine issue of material factrests on the moving party, see Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986), and all ambiguities and inferences that mayreasonably be drawn from the facts must be viewed in the lightmost favorable to the nonmoving party, see Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248-49 (1986). Once a party movingfor summary judgment has made a properly supported showing as tothe absence of any genuine issue as to all material facts, todefeat summary judgment the nonmoving party must come forwardwith evidence such as affidavits, deposition testimony, answersto interrogatories and admissions on file, that show there is agenuine factual issue for trial. See, e.g., Amnesty Am. v.Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002);Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18(2d Cir. 1995). A disputed issue is not created by a mereallegation in the pleadings, see Applegate v. Top Assoc.,Inc., 425 F.2d 92, 96 (2d Cir. 1970), or by surmise orconjecture, see Quinn v. Syracuse Model Neighborhood Corp.,613 F.2d 438, 445 (2d Cir. 1980). Conclusory assertions also donot create a genuine factual issue. See Delaware & Hudson RyCo. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990). Where affidavits are submitted onsummary judgment they "shall be made on personal knowledge, shallset forth such facts as would be admissible in evidence, andshall show affirmatively that the affiant is competent to testifyto the matters stated therein." Santos v. Murdock,243 F.3d 681, 683 (2d Cir. 2001) (quoting Fed.R.Civ.P. 56(e)). Thus,"as to issues on which the non-moving party bears the burden ofproof, the moving party may simply point out the absence ofevidence to support the nonmoving party's case." Nora Beverages,Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998).

DISCUSSION

Barros's § 1983 claim alleges that Miller and the BOEunlawfully retaliated against her for exercising her FirstAmendment rights to freedom of speech, freedom of association,and freedom to petition for redress of grievances, by reassigningher, first to teach fourth grade in a different classroom, andultimately, to teach fifth grade in a different school. Barrossubmits that she engaged in constitutionally protected speech by(1) verbally complaining to the BOE and the City of New Haventhat Miller was sexually harassing female school teachers andstaff, having an affair with a teacher, and abusing some of thestudents; (2) repeating those complaints in a June 2003 letter toMayo and the director of personnel; and (3) filing a July 2003complaint with DCF. She further contends that her reassignment to teach fourth grade in a different and less desirableclassroom, and then to teach fifth grade in a different schoolconstituted adverse employment actions. Defendants now move forsummary judgment on the grounds that (1) Barros's reassignmentdid not constitute an adverse employment action, and (2) thatthey are entitled to qualified immunity.

I. First Amendment Retaliation

To state a prima facie case of First Amendment retaliationunder § 1983, plaintiff must offer some tangible proof that (1)she engaged in constitutionally protected speech; (2) shesuffered an adverse employment action; and (3) the speech was asubstantial or motivating factor for the adverse employmentaction. See Burkybile v. Board of Ed., 411 F.3d 306, 313 (2dCir. 2005) (citation omitted). Because the defendants conceded atoral argument that Barros did engage in constitutionallyprotected speech, only the last two factors warrant discussion.

A. Adverse Employment Action

Defendants contend that they are entitled to summary judgmenton the retaliation claim because a jury could not find thatBarros's reassignment to teach the fourth grade in a differentclassroom and then to teach the fifth grade in a different schoolconstituted an adverse employment action.

There are no bright line rules for what type of actionconstitutes an adverse employment action. See Wanamaker v. Columbian Rope Co, 108 F.3d 462, 466 (2d Cir. 1997). Courtstypically look at whether the action had an adverse effect on aplaintiff's wages, benefits, or work hours; was more than aninconvenience or alteration of the plaintiff's jobresponsibilities, and was the type of action that is "reasonablylikely to deter" employees from engaging in protected speech.See Staff v. Pall Corp., 233 F. Supp.2d 516, 531 (S.D.N.Y.2002) ("changes in assignment or work-related duties do notordinarily constitute adverse employment actions if unaccompaniedby a decrease in salary or work hour changes") (citation andquotations omitted).

Barros concedes that the reassignment did not affect her wages,benefits, work hours, or opportunity to accrue seniority. Shealso does not dispute that she was certified to teach elementaryschool-grade children. Thus, even if teaching another grade"required her to learn something completely different," there isnothing to suggest the reassignment constituted anything morethan a mere inconvenience or an alteration of jobresponsibilities, both of which are not actionable. SeeGalabya v. New York Bd. Of Educ., 202 F.3d 636, 640 (2d Cir.2000). Moreover, although Barros states in her affidavit thatinvoluntary reassignments like hers are imposed "only when ateacher is being punished or pushed out of the school system,"this type of self-serving, factually-unsupported conclusory statement is not the type of evidence that is sufficient tocreate a triable issue of fact. See Geyer v. Lantz,No. 3:03CV1853CFD, 2005 WL 1657126, at *2 (D. Conn. 2005) ("[a]self-serving affidavit which reiterates the conclusoryallegations of the complaint in affidavit form is insufficient topreclude summary judgment") (citing Lujan v. National WildlifeFed'n, 497 U.S. 871, 888 (1990)); DeMuria v. Hawkes,No. 3:00CV1591 (AHN), 2004 WL 2216524, at *8 (D. Conn. 2004)(finding non-movant's affidavit insufficient to create a questionof fact that precluded summary judgment because it did notcontain supporting evidence that would be admissible in contentand substance at trial). Thus, because Barros has not comeforward with even a scintilla of evidence to establish thiselement of her § 1983 claim, the claim cannot survive summaryjudgment.

Further, because Barros offers no evidence to support her claimthat she suffered an adverse employment action, the court neednot consider the third element of her § 1983 claim, i.e., whetherthere was a causal nexus. Accordingly, summary judgment isgranted in favor of the defendants on Barros's First Amendmentretaliation claim.

II. Qualified Immunity as to Miller

Similarly, because a jury could not find that a constitutionalviolation occurred, the court need not consider whether Miller is entitled to qualified immunity. See Mandellv. County of Suffolk, 316 F.3d 358, 385 (2d Cir. 2003) (citingLewis v. Cowen, 165 F.3d 154, 166-67 (2d Cir. 1999)).

III. Municipal Liability

For the same reasons, the court need not, and does not,consider Barros's claim against the BOE. In other words, becauseBarros has failed to come forward with even a scintilla ofevidence establishing an essential element of her § 1983 claim,that claim against the municipal board of education must fail asa matter of law. See Looby v. City of Hartford, 152 F.Supp.2d 181, 187 (D. Conn. 2001) (quotations and citationsomitted).

CONCLUSION

For the foregoing reasons, defendants' motion for summaryjudgment [dkt. # 25] is granted.

SO ORDERED.

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